Imminent Threat

I have a piece up at the Prospect about the memo uncovered by Isikoff. Perhaps the biggest problem with the framework is a definition of “imminent threat” that, if it’s more rigorous than the balsa wood drones about to rain terror on Des Moines that gave us the Iraq War, isn’t much more:

Much of the coverage of the memo, including Isikoff’s story, focuses on the justifications offered by the Obama administration for killing American citizens, including Anwar al-Awlaki and Samir Khan (two alleged Al Qaeda operatives killed by a 2011 airstrike in Yemen.) In some respects, this focus is misplaced. If military action is truly justified, then it can be exercised against American citizens (an American fighting for the Nazis on the battlefield would not have been entitled to due process.) Conversely, if military action is not justified, extrajudicial killings of non-Americans should hardly be less disturbing than the extrajudicial killing of an American citizen. The crucial question is whether the safeguards that determine when military action is justified are adequate.

On this crucial point, the framework laid out by the memo is very much inadequate. Several of the key terms laying out the conditions—what counts as an “informed” official? What levels of evidence are necessary?—are frustratingly vague. Particularly crucial is the question of what constitutes an “imminent threat.” If a threat is genuinely “imminent,” military action is more justifiable. If it isn’t, however, it becomes less plausible to argue that capture is “infeasible,” and treating a suspected terrorist as a police operation would be more important. It is damning, then, that the definition of what constitutes an “imminent threat” has very little bite.

Read the whole etc.

cf. also Serwer.

point #2 from Glenn’s post is especially important: even these de minimis safeguards are a ceiling, not a floor.

123 comments on this post.
  1. Jesse Levine:

    Good analysis, and it’s what we “civil liberties extremists” have been worried about all along. Let’s have the whole can of worms opened so we can have a full debate on what this country will be in the world of asymmetrical warfare.

  2. Vladimir:

    Does anyone know what John Yoo thinks? I assumed by what I read in the white paper that he’d been consulted when it was being written. And I think the absence of any judicial review is as important as the broad definition of imminent.

  3. rea:

    “Imminent threat” is not a term of art needing a special definition–”imminent” means “imminent.”–the term has an ordinary and applicable meaning. The fact that the GWB administration discarded the ordinary meaning of “imminent” to argue that an “imminent threat” didn’t have to be “imminent” ought not to mislead us for long.

  4. rea:

    No, you miss the point. As Scott notes, the issue is whether use of military force is justified. Once we’re in the realm of use of military force, there is no judicial review. Sherman was not required to obtain judicial approval before ordering his artillery to target Leonidas Polk. As a matter of international law, use of military force is licit only in self-defense, which includes (1) defense of our allies, and (2) preemption of an “imminent” threat.

  5. Jay:

    Well it’s pretty clear this can’t be used to justify the killing of Awlaki or his son or Khan unless “imminent” simply means “anytime in the future maybe and you don’t have to be actively part of it sorry”.

  6. david mizner:

    But that’s what weird about the memo. Leaving aside for the moment the dangerous and darkly humorous definitions of imminence and feasibility, these are international human rights law concepts, which the Obama administration is applying to what it insists is an armed conflict, where the rules of war (IHL) should apply. It reminds me of when Holder insisted, absurdly, that victims of targeted kill received “due process” even though the Obama administration claimed the US was in a armed conflict where “due process” was required.

    This weird, tortured legal analysis is likely the product of the Obama administration’s trying to cover its ass re. the most controversial kills, those of American citizens. It’s also probably what results when relative liberals preside over Bush’ waronterrah: they try to scotch-tape liberal legal concepts on an inherently unlawful enterprise.

  7. david mizner:

    Yeah, this concerns very small fraction of the administration’s “targeted” kills, a majority of which are in the form of “signature strikes,” in which the identities of the people killed aren’t even known by the United States.

    I remembered a debate here at LGM a few months ago in which Scott and several commenters alleged that the U.S. tk program appeared not to violate international law. The more we learn, the wronger that view becomes.

  8. Karate Bearfighter:

    If military action is truly justified, then it can be exercised against American citizens …. Conversely, if military action is not justified, extrajudicial killings of non-Americans should hardly be less disturbing than the extrajudicial killing of an American citizen.

    This can’t be repeated often enough.

  9. david mizner:

    Also–

    .Much of the coverage of the memo, including Isikoff’s story, focuses on the justifications offered by the Obama administration for killing American citizens, including Anwar al-Awlaki and Samir Khan (two alleged Al Qaeda operatives killed by a 2011 airstrike in Yemen.) In some respects, this focus is misplaced.

    I agree that legally it doesn’t make a difference but the reason “the coverage” focuses on the justification for killing American citizens is that that’s what the memo itself focuses on. By limiting the memo to American citizens the Obama admin is suggesting there’s a difference but that’s not legally sustainable.

  10. Both Sides Do It:

    Other problems besides “imminence”:

    - The due process analysis relies heavily on Hamdi, and as in Hamdi the balancing process articulated in Mathews. The white paper discusses two factors used in that balancing process but completely ignores the third: “the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.”

    Not only does Hamdi discuss that factor extensively and have it play a large role in the opinion, but other points made elsewhere in the white paper – that intelligence is very sparse, that decisions have to be made in short periods of time, etc. – highlight just how high the “risk of erroneous deprivation” can be.

    - The analysis on international law relies on the US being in a non-international armed conflict with Al-Qaeda, and operates under the international law principles established in the prosecution of Tadic.

    But the Tadic case also established an organizational requirement, that to be considered a party to an extended conflict means having some sort of organizational structure shared with the conflict’s belligerents. The required extent of that sharing isn’t well-defined, but it’s clear that having a common ideology, or goal, or a group’s adoption of a specific name won’t cut it. The white paper’s silent on the organizational requirement and on the violation of international law if there are targeted killings which ignore it.

    And, obviously, the due process problems and the problems of the US having to establish a common organizational structure across targeted groups fit together nicely.

  11. rea:

    The white paper’s silent on the organizational requirement

    No, the white paper limits the targeted killing to members of al Qaeda, which ought to satisfy the organizatinal requirement.

  12. rea:

    You conflate the targeted killing program with the tactical use of drones in support of US troops on the Afghanistan-Pakistan border.

  13. david mizner:

    No it doesn’t. It allows for the targeted killing of “associated forces,” which include groups that didn’t even exist on 9-11, have never attacked the United States, and pose no threat to the US.

    The whole legal foundation of the targeted kills in Yemen and Somalia and elsewhere — that the 2001 AUMF authorized a global war against AQ and associated forces — is made of sand.

    Unfortunately, it’s not going to legal challenges that end this insanity.

  14. david mizner:

    Nope. “Signature strikes” are a large subset of targeted kills, and they take place in Yemen as well as Pakistan. Speaking of, read this and weep.

    One of the more disturbing recent revelations into White House foreign policy decision-making is that President Obama authorized targeted drone strikes while unaware that he had actually authorized signature strikes. According to Daniel Klaidman, when Obama was first made aware of signature strikes, the CIA’s deputy director clarified: “Mr. President, we can see that there are a lot of military-age males down there, men associated with terrorist activity, but we don’t necessarily know who they are.” Obama reacted sharply, “That’s not good enough for me.” According to one adviser describing the president’s unease: “‘He would squirm…he didn’t like the idea of kill ‘em and sort it out later.’” Like other controversial counterterrorism policies inherited by Obama, it did end up “good enough,” since he allowed the practice to stand in Pakistan, and in April authorized the CIA and JSOC to conduct signature strikes in Yemen as well.

    http://blogs.cfr.org/zenko/2012/07/16/targeted-killings-and-signature-strikes/

  15. Both Sides Do It:

    But that’s (central to) the point. Besides the slippery nature of the “associated forces” language david points out above, the paper assumes that “Al Qaeda and its associated forces” qualifies as a single party engaged in a non-international armed conflict with the US. It doesn’t. From the link above:

    There is little evidence, however, that the various terrorist groups that call themselves AQ or associate themselves with AQ possess the kind of integrated command structure that would justify considering them a single party involved in a global NIAC with the U.S. According to Kenneth Anderson, “Islamist terror appears to be fragmenting into loose networks of shared ideology and aspiration rather than vertical organizations linked by command central.”

    Similarly, Bruce Hoffman insists that, since 9/11, AQ “has become more an idea or a concept than an organization; an amorphous movement tenuously held together by a loosely networked transnational constituency rather than a monolithic, international terrorist organization with either a defined or identifiable command and control apparatus.” Indeed, even the U.S. government rejects the idea that AQ is a unified organization, dividing AQ into three separate tiers: (1) core AQ; (2) “small groups who have some ties to an established terrorist organization, but are largely self-directed”; and (3) “homegrown extremists’ who ‘have no formal affiliation with al Qaeda, but… are inspired by its message of violence.”

    The only “Al Qaeda” with senior leadership the US is able to target under international law is the “Al Qaeda” with organizational ties to the one that attacked the US. Groups we currently call or who call themselves “Al Qaeda” that share ideological goals or common tactics but no organizational through-line to the group in Afghanistan don’t qualify.

    You can argue, I guess, that this issue isn’t pertinent to what the white paper was trying to analyze, but it seems pretty pertinent to me.

  16. rea:

    Well, (1) al Awlaki’s son wasn’t targeted–he chose the wrong time to visit an al Qaeda headquarters. And (2) you really don’t think, after all that has taken place, that a member of the al Qaeda leadership qualifies under “imminent threat” analysis? (“Imminent threat” may not be the proper analytic tool in dealing with a person or organization involved in past attacks, with no intervening period of peace–we did not need to worry about whether Japan still posed an “imminent threat” the morning after Pearl Harbor. Not sure that Osama bin Laden or Leonidas Polk qualified as “imminent threats” when we killed them). And (3) Al Awlaki was in an area of Yeman not controlled by the government we recognized. He was in a leadership position in a group in arms against that government. International law allows us to treat a threat to an ally the same as a threat to us.

  17. Anon21:

    I remembered a debate here at LGM a few months ago in which Scott and several commenters alleged that the U.S. tk program appeared not to violate international law. The more we learn, the wronger that view becomes.

    That’s funny, I remember you completely failing to come up with any argument that it does violate international law. Still busily working on that, I suppose.

  18. joe from Lowell:

    Within the context of an ongoing, declared war*, the looser definition of “imminent” makes sense.

    The comparison to the use of “imminent” in the Iraq War justification is problematic, because of the difference between “Should we go to war?” and “Who should we shoot at in this war?”

    In an active war, the working assumption is that anyone on the other side could turn around and start shooting at you at any moment. Obviously, that assumption doesn’t hold outside of an ongoing war.

    *Sadly necessary footnote to head off whichever jackass decides to waste time by pretending this isn’t a declared war

  19. joe from Lowell:

    Is that quote supposed to back up the assertions of “majority” vs. “a very small fraction?”

    Because it totally doesn’t.

  20. joe from Lowell:

    I remembered a debate here at LGM a few months ago in which Scott and several commenters alleged that the U.S. tk program appeared not to violate international law. The more we learn, the wronger that view becomes.

    The last time you proclaimed yourself to have been proven right all along, Obama was going to include Chained CPI cuts in the fiscal cliff deal.

    So, whatever, dave.

  21. Vladimir:

    “The vast majority of drone attacks conducted by the U.S. have been signature strikes – those that target “groups of men who bear certain signatures, or defining characteristics associated with terrorist activity, but whose identities aren’t known.”

    from- “‘One Hell of a Killing Machine’: Signature Strikes and International Law.” by Kevin Jon Heller

  22. joe from Lowell:

    I assumed by what I read in the white paper that he’d been consulted when it was being written.

    Why? John Yoo’s big theme was inherent executive power, while this paper states over and over again that the powers are drawn from Congress’s war authorization. Is John Yoo just sort of your generic bogeyman?

    And I think the absence of any judicial review is as important as the broad definition of imminent.

    When has the judiciary ever reviewed targeting decisions in an ongoing, declared war?

  23. david mizner:

    Yeah, and the piece explains why many signature strikes violate international law.

  24. joe from Lowell:

    The vast majority of drone attacks conducted by the U.S. have been carried out in Afghanistan (or just over the border in Pakistan), as close air support or tactical bombing in support of the conventional ground war, and don’t have anything to do with the doctrine asserted in this document.

  25. joe from Lowell:

    Awlaki had already helped to carry out the attempted bombing of an airliner on Christmas Day 2009. This was testified to by the attempted bomber himself.

    Forgive me, but it is not “pretty clear” at all that a doctrine of imminence wouldn’t cover him.

  26. Scott Lemieux:

    while this paper states over and over again that the powers are drawn from Congress’s war authorization.

    As I say in the piece, this isn’t strictly accurate. The administration cites the AUMF, but also cites inherent Article II powers.

  27. J. Otto Pohl:

    This semantic trick has been the justification for increasing involvement of the US in the Sahel to fight against AQIM. Because it shares part of a name with Bin Laden’s organization most “progressives” from Obama on down think that the US, France, and French neo-colonial states like Chad under Deby are completely justified in any and all military actions in Africa.

  28. joe from Lowell:

    The Obama administration released this memo in response to a Congressional request for its legal justification for the killing of American citizens.

    That the administration answered the question it was asked does not suggest that the administration thinks there is a difference.

  29. joe from Lowell:

    It claims Article 2 powers to prosecute this war, which Congress declared. The title of the document, and every mention of who can be properly targeted, is a reference to the AUMF.

  30. david mizner:

    I’m glad to see your acknowledge that the United States isn’t in an armed conflict with AQAP, where the degree of “imminence” of the threat would be irrelevant.

  31. david mizner:

    Did you see the title of it? Why would it have one memo for the killing of Americans and another for non-Americans if it didn’t believe there was a difference? Do they get paid by the hour?

  32. joe from Lowell:

    Since this is a discussion about the legality of the doctrine, the question becomes, Who decides whether an al Qaeda group is or is not an al Qaeda group?

    Similarly, who decides whether an air field in Germany is a legitimate Luftwaffe target, or the place some farmer lands his crop duster?

    I’ll also note that there were a lot of confident assertions being thrown around about the lack of organizational connections between al Qaeda and al Qaeda in the Arabian Peninsula, right up until Anwar Awlaki was killed riding the same car with a top al Qaeda HQ figure.

  33. david mizner:

    These comparison to Axis powers really have got to stop. Here’s Ali Soufan:

    We adopted a system and a program that I truly believe — based on my personal experience and the experience of other professionals — damaged the national security of the United States. It took about 400 people — the people who had pledged the bay’ah, or oath of loyalty, before 9/11 to Bin Laden — and we got a war that’s lasted longer than World War I and World War II.

    400 fucking people.

    http://www.foreignpolicy.com/articles/2012/12/19/zero_farce_thirty?page=0,1

  34. joe from Lowell:

    Because it shares part of a name with Bin Laden’s organization…

    Has everyone forgotten the Iraq War already? There were negotiations going on for years between Zarqawi and bin Laden over whether Zarqawi’s organization would be allowed – allowed – to use the name “al Qaeda,” and Z. had to modify his organization’s actions at the behest of bin Laden before he was authorized to adopt the name al Qaeda in Iraq.

    Oh, and he also had to swear an oath of loyalty to bin Laden.

    Does anyone know what happens to someone who rides around on a motorcyle with the words “Hell’s Angels” on his jacket, if he hasn’t been authorized to do so by the Hell’s Angels? It’s not pretty.

  35. joe from Lowell:

    Your pretense that using a 40s-era example of the laws of war is a comparison between al Qaeda and the Axis has to stop.

  36. joe from Lowell:

    Do you often find yourself having these hallucinations?

    I’m glad you’re glad. Go be glad, and let the people who aren’t imagining things have an adult discussion.

  37. Linnaeus:

    Within the context of an ongoing, declared war*, the looser definition of “imminent” makes sense.

    But given the difficulty in identifying the enemy in this particular war (which then leads to expanding the definition of who is an enemy) and the open-ended nature of a war on “terror”, there’s a lot of danger in that looser definition.

  38. joe from Lowell:

    What part of “they answered the question they were asked” is eluding you?

    They were asked for the legal basis of the killings of American citizens who were al Qaeda commanders. They responded with a memo about the legal basis for the killing of American citizens who were al Qaeda commanders. They wrote a title indicating that it was a memo about the killing of American citizens who were al Qaeda commanders.

    What part of this are you having trouble with?

  39. rea:

    Reportedly, Russian Intelligence has leaked Obama’s secret plan to send death squads after US gun rights advocates. The killing has already started! Wake up, sheeple!

    No word yet on whether the victim’s heads will be displayed on sticks . . .

  40. david mizner:

    Why aren’t you being consistent and simply arguing that the US can kill Alwaki and other suspects in Yemen because they’re members of a group with which the US is at war? It would a lot better for you — and for us, because then we wouldn’t have to see you ape the administration and torture the definition of imminence.

  41. rea:

    But you know, it’s not that hard when the guy makes posts on the internet claiming to be an al Qaeda leader.

  42. J. Otto Pohl:

    This is pretty weak evidence that the guys in Mali had anything to do with 9/11. It is even a weaker justification for legitimizing the awful puppet dictatorships and neo-colonial states maintained by the French in Africa. Really how is it that regimes like Togo and Chad are considered to have any more legitimacy than the entity that ruled Timbuktu?

  43. joe from Lowell:

    I disagree with the claim that there is an “expanding definition.”

    One of the very first actions taken under this AUMF was to send special forces to the Philippines to help their army fight against an al Qaeda-affiliated group of Muslim separatists – oh, and they didn’t even use “al Qaeda” in their name.

  44. david mizner:

    The point is that we should not in a global conflict with AQ and under international law, we cannot be. We can’t simply be at war without whomever we choose; under IL there has to be hostilities of sufficient intensity. An attack every now and then doesn’t cut it.

  45. rea:

    Why aren’t you being consistent and simply arguing that the US can kill Alwaki and other suspects in Yemen because they’re members of a group with which the US is at war?

    Why aren’t you using common sense and admitting that the US could kill Alwaki and other al Qaeda figures in Yemen on exactly that basis? If you don’t think they’re really at war with us, just ask them!

  46. J. Otto Pohl:

    We have always been at war with Westasia and Eurasia and Eastasia have always been our stalwart Allies.

  47. rea:

    So, If Japan had left us alone after Pearl Harbor, we would have been violating international law to retaliate?

    (And yeah, it’s legitimate to use conflicts with the Axis powers or the Confederacy as examples, because those are examples of use of military force with which you presumably agree–if not, tell us. The point is, your theories about the law of armed conflict have to lead to sensible results with respect to those conflicts, or they are refuted. If you are going to claim that the president can’t order American citizens killed without a trial, you have to have an adequate answer when I point to Lincoln).

  48. rea:

    I might add, that if a group claims to be al Qaeda, they are hardly in a position to complain if we take them at their word.

  49. joe from Lowell:

    Why are you arguing as if the two justifications are mutually-exclusive?

    I’ve heard said that one can be both part of an organization that is at war, and an imminent threat, at the same time.

  50. joe from Lowell:

    We can’t simply be at war without whomever we choose; under IL there has to be hostilities of sufficient intensity. An attack every now and then doesn’t cut it.

    The actual, non-imaginary international law standard that applies here in proportionality. A nation is allowed, under Article 54, to use military means to defend itself against a trans-national group that is launching attacks of limited scale and frequency, but it must respond in a manner proportionate to those attacks.

    Like, for instance, launching a very-limited air strike every now and then, such as the drone strikes in Yemen.

  51. joe from Lowell:

    They don’t have to have anything to do with 9/11. They have to have something to do with the organization that carried out 9/11.

    None of this legal point has the slightest relevance to the merits of various governments in Africa.

  52. J. Otto Pohl:

    You do not think that making Chad and Togo part of the force to “liberate” northern Mali legitimizes those regimes? How could it not? Not to mention that it reinforces the French military and security presence in Africa upon which those two dictatorships along with others such as Gabon depend upon for their very survival. Absent French military and security support those regimes would cease to exist just as happened recently in the CAR. The French intervention in Mali is part of a long pattern of actions to maintain neo-colonial dominance in its former African colonies. But, “progressives” have been unconditionally supporting French neo-colonialism since 1958 so I am not surprised.

  53. Anonymous:

    It takes some serious delusion, after Abdulmutallab testified that he went to Yemen and joined a plot organized by Awlaki to blow up a jetliner over Detroit, that AQAP poses no threat to the US.

    Almost as much as to claim, after a strike killed Awlaki, the commander of AQAP, and a top figure from bin Laden’s Pakistani organization, while they were riding in the same car on their way to a meeting, that AQAP is not part of al Qaeda.

  54. Anonymous:

    I don’t think that the constitution of the regional force in question has anything to do with the AUMF ,what it authorizes, who it authorizes force against, or whether they are part of al Qaeda.

  55. Jim Lynch:

    Well, it’s not as if the people of this country have ever cultivated the inclination to discuss matters of import sensibly. A lot of post-Vietnam War people are very confused about where that war was at, who simply don’t know the score, and it’s understandable why they don’t.

  56. Karate Bearfighter:

    Roving squads of TSA employees assassinating gun owners by faking car accidents. Huh. Learn something new every day.

  57. Kurzleg:

    Not surprising, but certainly disappointing. Question is, is this a product of listening to “the generals” or simply of creep inherent in the national security universe? I happen to think there are elements of both at work, elements that are self-reinforcing. The national security apparatus presents a president with all manner of threats and (probably) a narrow band of solutions. They’re the experts, and they need to be taken seriously. At the same time, their assessments and solutions are strongly biased against civil liberties issues since civil liberties are not their concern in the least. (“The Constitution isn’t a suicide pact.”) There are few countervailing voices in the executive – or at least none with the weight that the national security apparatus carries – and so the ns voice is the loudest. This is something that the Founding Fathers (bless them all! bless them all! bless the wide and the short and the tall!) could not have envisioned or against which provide a check of power.

  58. Kurzleg:

    Indeed.

  59. Ronan:

    “Awlaki had already helped to carry out the attempted bombing of an airliner on Christmas Day 2009. This was testified to by the attempted bomber himself.”

    How did he help carry it out..gen q, I thought he was just a propagandist

  60. Kurzleg:

    That seems to expand the definition. One needs not even name AQ in order to qualify. Seems like slippery slope to me.

  61. joe from Lowell:

    In the beginning, he was just a propagandist. Later, though, he shifted to the operational side.

  62. Dilan Esper:

    I actually think the international law question is a bit of a distraction. The actual issue here is that we are murdering civilians, violating sovereignty, and acting as an imperial power when the actual threat of another mass casualty terrorist attack is close to zero.

    Whether or not this is legal, our policy is odious and evil.

  63. Joe:

    It also cites international law which allows use of force for national self-defense and this would include Art. II over the military as applicable … shades of the president having the power w/o Congress to deal with sudden attacks.

  64. joe from Lowell:

    I’m talking about an operation that happened in 2002.

    It’s tough to call this an “expanded definition” when it was the original definition used from the very earliest days.

  65. Joe:

    Dilan Esper: “The actual issue here is that we are murdering civilians”

    Words like “murder” have a certain meaning in this context. “Murder” is illegal. Now, if this is a policy opinion like “abortion is murder,” fine, but it is confusing.

  66. Joe:

    Likewise, “violating sovereignty” has a legal meaning. If you are going to talk in legal-talk, international law is not really beside the point.

    There, if armed bands are actively attacking us and the home governments cannot, will not or in fact aid and abet those involved, it is not “violating sovereignty” to use military force against them in various cases or to go in ourselves to seize certain people for trial.

    If you want to speak in moral terms (“evil”) or policy, fine. Still, ‘the actual threat of another mass casualty terrorist attack is close to zero’ especially as groups target major transportation centers etc. here and abroad is a bit questionable.

  67. Loud Liberal:

    Does this really come as a surprise? The CIA has been assassinating citizens and non-citizens alike, for decades, for the protection of private commercial interests. As worrisome as balancing the interests of individual due process rights and the interests of national security may be, much worse than that horse left the barn a long time ago.

  68. Winchester:

    Threat versus danger

    Classically, a preemptive attack is justified when there is “a clear and present danger.” But threat inhabits the future. Threats don’t clearly present themselves. They vaguely loom, and their looming casts a shadow on the present. A threat is how an uncertain future makes-itself-felt in the present. This has immediate consequences on the plane of action. Even in paralysis, it can change how we will be disposed to act. This viscerally felt, affective presence of an uncertain future has consequences for the future. In a weird way, threat is a way in which the future affects itself.

    What I’ve just described is like a time-loop. The future comes back to the present to trigger a reaction that jolts the present back to the future, along a different path of action than would have eventuated otherwise. Threat is a strange animal: a future cause. It comes from the future, to act on the futurity from which it came. In a sense, threat makes future self-causing. There is a kind of short-circuit in time. A future cause (the looming of the threat) loops through affect in a way that effectively changes what goes down. Threat loops through affect to effect, never surrendering the future tense.

  69. Winchester:

    Threat and the logic of PREEMPTION

    5) Obama talks the talk of human rights, to relieved UN and European Union ears. At the same time, he walks the walk of targetted assassination. The practice of targetted assassination has expanded significantly under Obama. It is contrary to the laws of war and international norms concerning the right to a fair trial. But exception is regularly made. The fact that the US is still not a member of the International Criminal Court helps. Obama has even extended targetted assassination to US citizens.

    6) Obama has waxed long on his respect for civil rights on the home front. At the same time he used the national security rationale to institute exceptions to constitutional protections against unreasonable search and seizure. And he has expanded the high-tech surveillance system to unprecedented levels. Legal limits are placed on surveillance of private individuals’ communications, but state secrets can be invoked to prevent judicial oversight, making the government’s surveillance powers effectively unlimited. In parallel, Obama has declared war on whisle-blowers. Bradley Manning, the army private who spilled the Wikileaks beans, is just the best known and most spectacular case. Under Obama, individuals who leak government and military information are prosecuted with draconian zeal. It’s to the point that Daniel Ellsberg, the man who helped end the Vietnamn war by leaking the Pentagon papers, was recently move to say that if Richard Nixon were alive today, “he would feel vindicated that all the crimes he committed against me – which forced his resignation facing impeachment – are now legal.” Note the wording: “legal crimes.”

    7) Obama has assured the world that the United States will no longer embark on foreign war adventures at the drop of a hat. At the same time, he has removed the conduct of war from democratic oversight, a function invested in Congress by the War Powers Act. In this case he has done this not by changing the law, but simply by ignoring it. He is not the first to do this. But in the past, presidents have initiated war action, citing the role of the president as commander-in-chief, then gone back to Congress within the required 90 days for rubber-stamp approval for their fait accompli. This was Bush’s approach. Earlier this year, Obama deployed the military in Libya without consulting Congress — and never went back to Congress for its rubber stamp. He said he didn’t want to, and if he doen’t want to he doesn’t have to, because he’s the Chief. This can only be interpreted as a radicalization of the principle of the “unitary executive” that Bush used to justify his arbitrary gut decisions and to shift the balance of power toward arbitrary executive decison exempt from the usual checks and balances.

    The situation now is that extralegal powers, escape-hatches for the exercise of exceptional powers, holes of arbitrary decision, now perforate the fabric of government. Permanent sluices have been built-in for the logic of preemption. Through these gaps preemption will continue to pass. It will continue to move-through as an historical tendency that has become a force in itself, sweeping everyone up in its momentum, explicit doctrine aside.

    It is important to emphasize this: the tendency I am diagnosing is self-operating. It operates independently of the personal qualities of those in power.

    – Brian Massumi

    http://historiesofviolence.com/reflections/brian-massumi-the-remains-of-the-day/

  70. Arouet:

    So you think the President, the IC, or anyone else seriously believes that all of the people they’re targeting now planned, authorized, committed or aided the 9/11 attacks?

    I’m well aware that this legal fiction has been in use for over a decade now and has been given SCOTUS’ blessing, but that doesn’t make it accurate, necessarily.

  71. wjts:

    Well obviously the Earth has 4 corner simultaneous 4-day TIME CUBE within single rotation – that’s clear to anyone with even the most basic understanding of physics. But what that has to do with the Obama Administration’s construction of a justification for extrajudicial killings is frankly opaque.

  72. Both Sides Do It:

    I was going to make the exact same comment.

    It’s rare nowadays that someone says something so bugfuck out of context that a time cube reference is the only rational response. Too rare.

  73. Linnaeus:

    This is where I get confused, though: is the war against all who may or may not have been involved with the September 11 attacks (specifically mentioned in the AUMF) as long as some affiliation with al-Qaeda is suspected and regardless of what operations said parties may or may not be doing?

    If so, then maybe you’re right in that the definition of an enemy hasn’t been expanded, but then I wonder if the initial definition of the enemy wasn’t too broad to begin with.

  74. wjts:

    A reference to Criswell’s proclamation that “We are all interested in the future, for that is where you and I are going to spend the rest of our lives. And remember my friend, future events such as these will affect you in the future” would also have been acceptable.

  75. Murc:

    There, if armed bands are actively attacking us and the home governments cannot, will not or in fact aid and abet those involved, it is not “violating sovereignty” to use military force against them in various cases or to go in ourselves to seize certain people for trial.

    … does it actually work like this?

    By this logic, both Russia and the US could have struck militarily directly at each other during most of the Cold War and it wouldn’t have been considered a violation of sovereignty.

  76. Winchester:

    Sorry if it was not clear. Threat is the justification for preemptive move such as targetted assassinations:

    Now some might actually see this as an example of “the more things change, the more they stay the same,” because the right to preemptive attack has been a part of the practice of war for as long as there have been wars, and is a part of classical war theory and the law of war. However, in the past, preemptive attack was considered justified in response to “a clear and present danger.” the Bush doctrine changed danger to threat.

    The first thing this does is shift the emphasis to the affective register. A clear and present danger is observable and in principle objectively verifiable, whereas a threat only has to be felt to be.

  77. Jesse Levine:

    Barack Obama, February 5, 2913.
    The proposals that I put forward during the fiscal cliff negotiations in discussions with Speaker Boehner and others are still very much on the table. I just want to repeat: The deals that I put forward, the balanced approach of spending cuts and entitlement reform and tax reform that I put forward are still on the table.

  78. cpinva:

    historically, an official state of war can only exist between states, not individuals and states, or criminal organizations and states.

    “But given the difficulty in identifying the enemy in this particular war (which then leads to expanding the definition of who is an enemy) and the open-ended nature of a war on “terror”, there’s a lot of danger in that looser definition.”

    the great disaster, bequeathed by the bush administration, and a congress which refused to do its job, was in changing the nature of war, and re-defining it, without doing so publicly. the major problem with that memo is that it can easily be used to justify drone strikes on bank robbers in va, or a rapist in ca because, according to our new definition of “war”, there no longer needs to be another state actor involved.

    since we’ve now unilaterally changed the definition of “war”, it is but a small leap to change the previously recognized, international rules of war, to whatever is convenient for us. bush and his neocon buddies deserve much of the blame, but ultimately, it is congress who, by abrogating it’s constitutional responsibility, is responsible for the state the country now finds itself in.

  79. Linnaeus:

    Yep. This is what I was trying to get at.

  80. Joe:

    What armed bands are we talking about here?

    If the U.S., e.g., try to overturn Castro by training rebels and such, it would be a breach of international law. At some point, it would not be illegal for Castro to send a force to address a training base in Florida if the U.S. refused to cease and desist.

    There might be pragmatic reasons for him not to try. Not knowing what you are talking about specifically, that probably influenced the U.S. and USSR too.

  81. Linnaeus:

    If the U.S., e.g., try to overturn Castro by training rebels and such, it would be a breach of international law. At some point, it would not be illegal for Castro to send a force to address a training base in Florida if the U.S. refused to cease and desist.

    Nicaragua probably had a good case for doing this back in the 1980s.

  82. justaguy:

    Sure, you need to differentiate the weapon itself from the program under which it is being used. I’m sure the vast number of drone strikes have occurred in Iraq, Afghanistan and Libya. But, when you separate them out from the ones in the targeted killing program, what are the ratio of “signature strikes” then?

  83. Everythings Jake:

    Well thank god Ralph Nader didn’t run in 2012…can you imagine?There might have been, y’know, clean air and water, an increase in the minimum wage, seatbelts, kids who weren’t facing a lifetime in prison for making academic articles available. Jeebus, how close we came to fascist police state totalitarianism. Pheww.

  84. Manta:

    Since the Obama administration embraced most of the policies of the Bush one (in the “Global war on terror” context), it is quite natural that many of the vocabulary innovations introduced by Bush are still used by Obama.

    To his credit, in some cases he maintained the policy, but did change the label.

  85. ajay:

    We can’t simply be at war without whomever we choose; under IL there has to be hostilities of sufficient intensity. An attack every now and then doesn’t cut it.

    Citation? You think there is an actual legal minimum intensity below which a war doesn’t count as a war?

  86. Barry:

    ” Sherman was not required to obtain judicial approval before ordering his artillery to target Leonidas Polk. As a matter of international law, use of military force is licit only in self-defense, which includes (1) defense of our allies, and (2) preemption of an “imminent” threat.”

    Jesus H. F*cking Christ – you are confusing on an actual battlefield with something defining the entire Earth is a battlefield.

    And you are also overlooking the fact that US military law, developed during the Civil War, specifically outlawed assassination.

  87. Barry:

    ‘shades of the president having the power w/o Congress to deal with sudden attacks.’

    Where ‘sudden attacks’ means something other than ‘sudden attacks’.

  88. Manta:

    When I use a word,’ Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean — neither more nor less.’

    `The question is,’ said Alice, `whether you can make words mean so many different things.’

    `The question is,’ said Humpty Dumpty, `which is to be master – - that’s all.’

  89. rea:

    you are confusing on an actual battlefield with something defining the entire Earth is a battlefield.

    Well, no. The Alwaki killing is licit only because it takes place in backwoods Yemen, where there are no functioning civil authorities capable of trying or extradicting the man. Killing him with a drone on the streets of London or Cartagena or New York wouldn’t be allowed.

    US military law, developed during the Civil War, specifically outlawed assassination.

    Yes, but you are taking an unduly broad approach to what amounts to “assassination.” Sherman spotted Polk conducting a reconnaisance, recognized him, and ordered his artillery to fire on him (I chose Polk as an example for this reason–he was deliberately targeted). In WWII, US intelligence got word of Adm. Yamamoto’s movements through code-breaking, and set up an ambush for him. How do these examples differ from what happened to Alwaki? And an approach that says, “kill the foot soldiers, but leave alone the moral monsters who sent them to attack us!” is . . . less than satisfactory.

  90. rea:

    historically, an official state of war can only exist between states, not individuals and states, or criminal organizations and states.

    Not really true. Look at the historic treatment of piracy, from the 18th Century back to the Roman Republic.

  91. Cody:

    Please Clarify – is it 2913 on purpose or accident? I can’t tell if this is a snark about how people just assume Obama is giving the house away, or a quote that he is giving the house away.

  92. Cody:

    We can’t simply be at war without whomever we choose

    Re-read that a few times.

    So the United States of America can’t choose to be at war? Are we not allowed to hurt other countries until they give us permission?

    “We’re just going to bomb your twin towers, but we refuse to allow you to go to war with us”.

    The treating of Al-Qaeda like a State entity is pretty dumb, but there isn’t really another way to deal with international threats that is prevalent. I’m sure there is a better way, but nothing the US seems to consider.

  93. Cody:

    Yea. Sure. I don’t think this is true but I will concede the point.

    Do you think this has ever changed? The President has always had the “power” to do these things. If he wanted, he could have each of us killed in the dark claiming some B.S. and maybe get away with it.

    But the Citizens of the United States would (hopefully) hold the government accountable. That’s all there ever has been stopping these kinds of crazy acts.

  94. Cody:

    I apparently have not given the TSA enough credit. A very multi-disciplinary organization indeed!

  95. Joe:

    I’m sorry — what Al Qaida is doing is not akin to bank robbing, some single rapist etc. They are using international means of armed resistance and international law has very well recognized the legitimacy of the use of armed force to address something of this caliber, including if it is purely intrastate action in various cases. The citation of piracy by someone is a decent parallel. I don’t like the word ‘war’ that much myself, but we didn’t declare ‘war’ — it was an authorization of military force and there is some overlap with war including use of the military, battlefields (not likely to occur with bank robberies) etc.

  96. Joe:

    Also, over the years, the U.S. has repeatedly used force to address single incidents of threats to our citizens and forces. Many of them might have been questionable, but the basic idea is not novel.

    Mark Field, e.g., has in the past cited the rules as set during the Caroline Affair.

  97. Njorl:

    When it comes to international law, a great many foolish activities are justified.

  98. rea:

    The President has always had the “power” to do these things. If he wanted, he could have each of us killed in the dark claiming some B.S. and maybe get away with it

    This becomes tiresome. Once more, the military power being claimed is limited to situations in which ordianry criminal process is not available to to government. We couldn’t extradict Alwaki from Yemen–he was hiding out in a part of Yemen which the government didn’t control. The same rationale was nominally applicable to bin Laden in Pakistan, although there it’s something of a diplomatic fiction, because war with Pakistan over its failure to extradict bin Laden was not an acceptable outcome for either the US or Pakistan.

  99. Barry:

    The best way to describe it is that in both cases, if US forces had no clue as to the identity of the person being targeted, it would have been a routine military targeting.

    And I’d love to see some examples of the US targeting, say, Confederate agents in England (who were there trying to get support for the war).

    As for: “And an approach that says, “kill the foot soldiers, but leave alone the moral monsters who sent them to attack us!” is . . . less than satisfactory.”

    I do agree, and would love to take the lash to Birthers (after all, they are uttering treasonous lies about our Sacred Commander in Chief in Time of War).

  100. Jesse Levine:

    Bad typing. It’s a direct quote

  101. joe from Lowell:

    Have you ever considered – since this keeps happening over and over again – that politicians sometimes posture in public, and that their quotes aren’t actually the surest way to evaluate their intentions?

    How about the phrase “Money talks, bullshit walk?” Have you ever come across that?

  102. joe from Lowell:

    historically, an official state of war can only exist between states, not individuals and states, or criminal organizations and states.

    The piracy example above is sufficient to answer this claim, but even setting that aside: so what?

    Let’s say the there were never any such things as pirates, there was no Pancho Villa expedition, and the use of war powers against non-state entities is novel.

    So what? The Constitution grants Congress the power to declare war, and does not include any language limiting that power. Noting that it is using that power in an (allegedly) novel manner doesn’t render it unconstitutional. When Hawaii used eminent domain to carry out a land reform program so that poor farm workers could own some of the land, that was a novel use of a Constitutional power.

    Novelty does not prove that a power is being used unconstitutionally.

    without doing so publicly

    Wait..what? Are you saying that the state of war against al Qaeda is something that was invoked, and carried out, without the public knowing about it? I’m pretty sure that just about everyone on the planet has known that we are at war with al Qaeda since September 2001.

  103. joe from Lowell:

    historically, an official state of war can only exist between states, not individuals and states, or criminal organizations and states.

    The American Civil War would seem to disprove this claim pretty definitively, unless you want to argue that the CSA was, in fact, a sovereign state.

  104. joe from Lowell:

    The war against al Qaeda is in no sense preemptive. They launched multiple attacks on the United States for years prior to our response.

  105. Barry:

    Got proof, or should I file this alongside Saddam’s weapons of mass destruction?

  106. Barry:

    Which still means a worldwide war against anybody the president (or various people in the executive branch) secretly decide upon.

  107. Random:

    Where ‘sudden attacks’ means exactly what it says, really.

    He issued kill-orders that were such an immediate and imminent threat to the targets of those orders that they had to go into federal protective custody and will never again get to use the names their parents gave them. That alone indicates that law enforcement agencies outside of the executive’s immediate control also considered this individual to present an imminent, immediate threat of death to US citizens. And that’s just one of the many ways that you can demonstrate based on non-secret info that this individual was an imminent threat.

    AA directly stated that it was his intention to murder as many American citizens as possible after previously attempting to murder as many American citizens as possible only a few months prior to that. All while being a high-ranking member of a formally-declared hostile foreign military entity with whom we have a formal declaration of war and engaging in meetings with other high-ranking members of said formally-declared hostile foreign military entity.

    And yes, WWII was too a global-scale war in which we pursued hostile powers in any foreign nation, hence the appellation “World War”

  108. Random:

    AA was an imminent, immediate threat to civilians under standards of the common-sense understanding of ‘imminent’ that predates Bush’s presidency. He had helped launch prior attacks in attempts to murder civilians, repeatedly and publicly stated his further intention to continue murdering civilians (he bragged about it actually) and was in the process of plotting more attacks to murder civilians in conjunction with other individuals who had previously plotted attacks to murder civilians and also stated their further intention to keep murdering civilians.

    Seriously, common sense tells you that this is an ‘imminent threat’ and given that he’s a member of a formally-declared hostile foreign military I don’t see any US president failing to attempt to either detain him or kill him given the opportunity.

  109. Random:

    Actually yes there is extensive public proof beyond any possible argument that AQAP was an AQ affiliate as well as ample evidence that they had launched numerous violent attacks against civilians and US military here and abroad, including attacks in the domestic United States (they were responsible for planning the deaths of soldiers who were killed in Little Rock actually) and had repeatedly broadcast their direct intention to continue carrying out such attacks. They certainly constitute an imminent threat to civilians under any common sense understanding of the word ‘imminent’.

    Yemen-based AQ members attacked our military before 9/11 actually during the Cole incident.

  110. Random:

    http://www.merriam-webster.com/dictionary/imminent

    AQAP was an imminent threat, their members constituted an imminent threat, and AA was an imminent threat. I don’t really need specific foreknowledge on exactly where and the exatc time that they are going to murder civilians in order to determine the imminence of the threat posed, though I’d bet money the administration has concrete intel on that too.

  111. Random:

    It’s a good question to ask, but in this instance there’s not much debate that AQAP is an AQ affiliate, given that it is largely made up of members of Al-Qaeda who were driven out of Saudi Arabia.

  112. Random:

    “Which still means a worldwide war against anybody the president (or various people in the executive branch) secretly decide upon.”

    That doesn’t seem to be the case, nor does it appear to have actually happened. AQAP very definitely is an AQ affiliate with members of AQ who formed it from Saudi Arabia and is covered by AUMF and were definitely an imminent threat under the definition of the word ‘imminent’.

  113. Random:

    Goes back to Monroe at least, we’ve definitely authorized military action against non-state actors.

  114. Random:

    AQAP is formed from members of the Saudi branch of Al-Qaeda, yes it is covered by AUMF.

  115. Hogan:

    Did we kill only those members of the Japanese military who carried out the attack on Pearl Harbor?

  116. djangermats:

    They immediately jumped to the bottom of the slope, thats totes okay lol

  117. Random:

    I was unaware that it was a civil liberty to join a bona fide terrorist group who is also a formally-designated enemy of the US, operationally assist them in the murder of civilians, insist you intend to work with them to effect the murder of more civilians at every possible opportunity, and plot with other individuals who also have operationally assisted in the murder of civilians and insisted their intention to murder more civilians at the earliest possible opportunity.

    But really my favorite part of this is these amazing heretofore unknown rights that the Constitution grants us is the one to actively work to murder civilians and announce our intention to murder more civilians at every possible opportunity, then take active measures to prevent the government from giving you a trial for that and continue to work full-time on effecting the murder of civilians, then turn around and cry dirty pool when we blow you up on the grounds that you didn’t get a trial first.

    I’m pretty sure that’s something you guys pulled out of your butts the other day and it’s just not holding up very well. You don’t have a right to avoid trial and you damn sure don’t have a right to avoid trial and then continue to kill people and claim immunity from neutralization of the imminent threat you pose because you haven’t had a trial.

  118. Random:

    Until Ralph Nader can demonstrate the ability to get, say, 10 out of 100 Senate seats for his party, I’d say it’s a waste of time to elect him to the Executive Branch and expect any of those things to actually happen.

  119. root_e:

    I’m completely puzzled by your argument since you state: ” In some respects, this focus is misplaced. If military action is truly justified, then it can be exercised against American citizens (an American fighting for the Nazis on the battlefield would not have been entitled to due process.) ”

    and the 3rd criteria of the white paper is that the attack must be justified under the laws of war. That is, the other two criteria describe ADDITIONAL safeguards when a US citizen is known to be involved.

  120. Random:

    This is a great quote, true.

    However in this case the number of attacks per month from AQAP is quantifiable. That rate is a precise number, not something that is ambiguous or vague or nebulous. And that rate just plain flat-out justifies attributing the label ‘imminent threat of attack’ to AQAP. It’s not ambiguous people, it’s not nebulous, it’s a concrete number that can be verified and that number indicates they are going to try to kill ass-loads of people sometime in the next three months.

  121. root_e:

    The US constitution changed in 2009 to limit the powers of the executive in ways previously unknown.

    George Washington, when he sent an army to shoot US citizens in MA for rebelling, did not realize he needed a judicial determination on each case. Certainly Abe Lincoln didn’t know that US citizens in hostile military forces could not be shot out of hand.

    Thomas Jefferson didn’t know that he was violating the law by engaging in war with Barbary pirates – since they really couldn’t be called organized states.

    FDR didn’t realize that attacking German units that contained US citizens was illegal until those units were in imminent stage of attack.

    So amazing.

  122. root_e:

    True, life under the Romney/Ryan administration would have Rocked. Capital R.

  123. Jesse Levine:

    Give it up already.

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