That Silly Old "Rule of Law" Again


"To hell with your courts, I know what justice is."
                                           - Jack White, IWW


The big stories in the wake of Rand Paul's drone-themed filibuster in the Senate last week are, as usual, concerning the rule of law.  Specifically, the focus is on whether or not it was legal for the government to target and kill U.S. citizen Anwar al-Awlaki, who, living in Yemen, became a 'mouthpiece' for al-Qaida.  And while it's important to dissect the lies and manipulation of the law our government feeds us on a regular basis (as Marcy Wheeler has done here and here), by getting caught up in legal arguments we tend to lose sight of the more important ethical values laws are supposed to represent.  After all, when we ask "what gives you the right to kill these people?", we aren't asking for a lawyer, we're asking for a compelling moral justification.

The Obama administration originally had killed Anwar al-Awlaki without much of a real thought.  He was a clear 'bad guy' - U.S. citizen or not - and had been regularly called out as such in the media.  Only later did the administration attempt to reconcile what they had done with existing law - interestingly enough, this was prompted by a few hostile blog posts making the legal case for referring to al-Awlaki's death as murder.  And, now that it has become an even bigger issue due to the filibuster, the ever-faithful New York Times has been called in to rectify the situation.  The Times makes some rather serious mistakes in that article (see the emptywheel links above), but the purpose is to appeal to those who are already on the fence about supporting such actions, not to find some sort of flawless logic that will convince those of us who are critics.  After all, the vast majority of evidence in these cases is either circumstantial or purposefully withheld by the government in appeals to national security.

It is not coincidental that this article has appeared right as President Obama is due to give a speech defending the drone program.  Given how the Times consistently repeats shaky administration claims without challenging them - a function which it can be expected to fulfill in nearly every foreign policy discussion (and in the wake of the Iraq War, this should be an uncontroversial statement) - some amount of collusion is a given.  It's not some wild conspiratorial party or anything.  The Times simply lets government officials say what they want, when they want.  That's what they do.

But this tired episode really isn't about the pathetic lapdogs of the rich and famous we call the media.  It instead speaks to a point which I keep finding myself coming back to time and time again: that those in power act first, and only later search the law in attempt to justify what they've done as legal when objections arise.  They don't always have to do this (because they generally control how the law is written in the first place), but when its necessary they don't even hesitate.

The debate over white papers, legal memos, and state secrets has only helped to take the focus off of the facts on the ground, off of the realization that the government will simply do whatever it wants to achieve its goals - the rule of law be damned.  Let us not forget that the lovely people filling the ranks of the executive (including and especially the CIA) have never let illegality stand in the way of their crusade to bring about American dominance over the world and all of its many resources.  As Henry Kissinger was fond of saying when he was forced to be diplomatic, "The illegal we do immediately; the unconstitutional takes a little longer."  Just as it was then, so it is now.  If they cannot manage to persuade Congress to change existing law, well, then they simply "find substantial progress under the existing law."

That is, they'll find a new way to interpret the law which makes their crimes legal.

But while the executive does feel the need to establish the legitimacy of its actions under the law in order to fully absolve itself, this is almost never how it sells any of its actions to the public.  The average person is still much more concerned with 'good' and 'bad' than with stuffy law-speak, and the masters of propaganda know that better than anyone.  So, while Glenn Greenwald and others focus on how wrong the arguments laid out by the Times and the Obama administration are, the underlying debate is one which has already been lost.  Even if you were to convince most people that the government was trying to kill al-Awlaki when he was just a spokesman, they'll say "okay, but I'm still glad he's dead."

The simple fact is, a great majority of Americans have been persuaded to believe that the government can and should kill people based only on suspicion.  They don't care if the evidence doesn't stand up in a court of law, just as they don't care if the person killed is an American citizen (as long as they have dark skin, are a Muslim, or otherwise 'clearly' an enemy).  Remember: drones have only come into the spotlight now that the Obama administration refuses to even say that it won't use them to kill American citizens in the United States.  And even in that case, there's a significant fraction of the public which would still be okay with it.

To them, al-Awlaki's killing was justified because he regularly spoke out on behalf of al-Qaida and against the United States.  Greenwald may believe that is protected speech, but most people do not.  As much as the First Amendment is held in high regard, the charge of 'enemy' still resounds much louder in the heads of patriots - much as it always has.

The after-the-fact propaganda, on the other hand, is aimed mostly at the privileged, who tend to hold more respect for the rule of law (it benefits them, does it not?), and can be persuaded by insider accounts of What Really Happened.  The Times' piece is especially useful there, because it goes on about how the administration was careful to respect the First Amendment and not target al-Awlaki (a blatant lie) when he was "only an inciter".  By the time the fatal strike took place, evidence has been concocted out of thin air - the Times calls on "senior officials" who speak of an "interrogation" - and the final decision seems both serious and thoughtful, when it was nothing of the sort.

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The expansion of governmental authority is a game presidents now play in the open.  The DoJ is regularly working at the executive's behalf to expand executive power and legally fight for more 'breathing room' with the other two branches of power.  This is why, during the Bush and Obama years, we've seen the two use an unprecedented number of signing statements - almost all of which present arguments relating to executive power.  This is why they've blanketly assumed a whole swath of powers under 'war on terror' auspices, which would otherwise be considered tyrannical.  In fact, the Obama administration has even argued against codifying these into law, for fear that doing so would actually restrict its authority.  For instance, when Congress sought to insert language allowing indefinite detention into the 2012 NDAA, the administration argued that[PDF]: "Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk.".  This was not an isolated occurrence, either.

Certainly, these authoritarians do also believe what they're doing is in the interests of 'national security' - words so vague they can - and do - mean anything in today's world.  But it should be more than obvious in the current environment that they don't care about the 'spirit of the law' one trifling bit.  They will go to whatever lengths necessary to legitimize the actions they take, and their never-ending assault on the English language proves that:

"Terrorism" means, frankly, whatever they want it to mean.  After all, was not "Shock and Awe" terrorism?  An act of violence meant to intimidate a civilian population, no?  Drone strikes are unquestionably a form of terror[PDF] too, but who dares call the CIA terrorists?

What about "militants" and "combatants"?  Well, they're any males of military age which happen to be caught up in a drone strike, of course.  And, you know, probably anyone else who can't be identified because they've been blown to pieces which hardly resemble a human being.

And "citizens" can certainly be terrorists, but can you just outright kill them if you deem them to be?  That's a grey area, so instead the debate shifts to: well, is someone really a citizen if they've "joined the enemy"?  That seems to revoke their citizenship.  A victory.  Now, how shall we define "joining the enemy"?  Do we need to revive the House Committee on un-American Activities for that?

Then you have the "battlefield", which is everywhere and anywhere.  If you accept this, nothing is beyond the scope of military action, and any restriction on civil liberties can be justified.  Where does the argument "this is war, and we have to do everything in our power to win" end?  The answer is: it doesn't.

Now "imminent" truly is a difficult one.  When is a terrorist attack "imminent"?  According to the administration, it seems to be always and forever.  Imminence apparently "does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future."  Exactly the type of postmodernist nonsense you'd expect from a legal team which works to defend the indefensible.

It's a shame, really.  You'd think we would have learned from "enhanced interrogation techniques".

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There was once a school of thought which said that if a law turns out to justify an immoral act, there then becomes sufficient reason to either alter or strike down the law in question.  Unfortunately, it seems this went out of style some time ago.  It's now the stuff of history, locked away alongside the words of French anarchists - fit only for a casual read in sociology class or on the bookshelf of a "dangerous" hacker.

But this position is both simple and elegant.  I say: if the murder of al-Awlaki turns out to have been legal, the law should be changed so that similar acts are not.  If the murder of the younger 16-year-old al-Awlaki turns out to be legal, we not only need the law to be changed, but we need to have a serious national discussion on how something like that could ever - ever - be justified.  It's really no more difficult than that.  You can't - you shouldn't - just kill people because they say mean things about you, or because you don't like them, or for any other reason than you had no other choice.  To do otherwise is a fundamental crime.

And please, let's do away with spending more time arguing over intent and meaning of centuries old law than actually considering the ethics the law should be articulating in the first place.

A humane, rational, and honest society does not forsake its own ethics to debate legality, especially when the question is as serious as murder.  That society instead realizes that the rule of law is regularly abused for the benefit of the powerful, and that fawning over it only distracts us from the more tangible crimes committed on a regular basis, just as the focus on the elder al-Awlaki has distracted the American public from the far greater crime of the murder of the younger.

So, yes, point out the glaring abuse of law necessary to prove the point, only don't stop there.  Forge a path ahead on moral ground - you never know, maybe it will start a movement people can actually get behind.

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