Stopping the Obama Kill Doctrine
by David Atkins
By now it seems fairly clear: neither Republican nor Democratic administrations take basic civil liberties terribly seriously. It's pretty scary. The Bush Administration saw the elevation of torture and unlimited warrantless wiretapping to open national public policy. The Obama Administration has apparently now made extrajudicial killings part of its national public policy apparatus, so much so that FBI Chief Mueller is too confused--or refuses--to say whether the President has the authority to assassinate civilians on U.S. soil.
Now, it's important to have some historical perspective on these things. There can be little doubt that during the Cold War and during other conflicts, our various secretive spy agencies have been conducting targeted killings, probably including American citizens. And there have been far more egregious civil rights abuses in the past. The nation did, after all, survive slavery, the Japanese internment camps, Joseph McCarthy and J. Edgar Hoover. It survived John Adams' Alien and Sedition Acts, Lincoln's suspension of habeas corpus, and Nixon's indiscriminate lawbreaking. And it will likely survive this. There is a tendency on the left to assume a gradual decline in civil liberties from some mythic high point, leading inexorably to a fascist state. More realistically, the nation goes through phases wherein it feels more or less threatened, and presidents tend to grab power accordingly in order to neutralize "the threat." The threat subsides, and the nation goes back to pretending that totalitarianism is a trend that can only happen to other people.
What's a little different about this time, though, is the openness of it all. In most of the nation's other cases of civil liberties abuses, the abuses were conducted secretively, during times of fully armed conflict, against targeted minority groups, or some combination of the above. The Bush and Obama Administrations' abuses are more disconcerting considering that, granted the need to act against Al Qaeda after September 11th, we have conducted wars more of choice than necessity, not involving conscription. Our killings policies are not being conducted secretively by people who know they're illegal but feel they must act in defense of country regardless, but rather shockingly openly. And the target universe is not some currently despised minority group--bad enough, of course, but at least theoretically temporary and irrational--but rather the entire civilian population for an indiscriminate period of time. Openness is usually good thing. But open law-breaking is not. One should hope that people engaging in criminal activity--even if they believe they're doing so for the right reasons--at least have the good grace to do so under cover of darkness, rather than attempt to openly justify clearly illegal actions based on specious legal reasoning.
But the other problem that should be fairly obvious by now is that despite the shocking nature of what is going on, most Americans simply do not care. Most Americans don't know who Anwar Al-Awlaki was. When they do find out, most don't care that he was killed.
I admit to sharing in this lack of emotional grievance myself. As I explained before, I don't shed tears for Al-Awlaki. I understand at a rational level that his killing sets a terrible precedent for Presidential power. But I don't care any more about him for having been born on American soil, than I do about Osama Bin Laden. Osama Bin Laden was never tried in any American court, and the only evidence we have as to his guilt comes from his own admission in addition to the statements of various government officials in multiple countries. I celebrated Bin Laden's demise. I see no reason to disbelieve that Anwar Al-Awlaki recruited terrorists and encouraged them to engage in terroristic acts. I wouldn't shed a tear for his death had he been born in Yemen, and I don't shed a tear for his death knowing he was born in the United States, either. The fact that he was hiding in Yemen, deliberately avoiding capture, also makes it harder to argue that the United States should have conducted a dangerous military raid to capture him, giving him more protection than any foreign-born target would have had.
But at a rational level, of course, we are a nation of laws. Once you allow openly for extra-judicial killings of citizens abroad (regardless of their guilt) simply based on Presidential say-so, there's no real legal line that stops anywhere short of the unthinkable nightmare of targeted killings on U.S. soil for political reasons. It's all a matter of trust at that point. No one sane believes the Obama Administration would do such a thing, but that's not important: what's important is the precedent being set for future Administrations that would indeed like to have that sort of power.
But what would it take to get people to care? To make people understand that this is a real problem that has to be dealt with, and that American presidents must not be given this sort of authority?
The answer is, as I've said before, a much stronger framework and enforcement of international law.
Right now, your average American is presented with a binary choice: 1) let guys like Al-Awlaki do their thing with impunity, or 2) give the American President the authority to do something about it since no one else will. Given those two choices, most Americans are more than happy to go with option two, whether it's a Republican or Democratic president.
This calculus doesn't end at Islamist terrorists, either. The recent explosion of Youtube attention to murderous bastard Joseph Kony provides another such example. The situation in Uganda with Kony is more complex than is often understood, but it remains nothing short of pathetic that the international community hasn't found itself able to do anything about Kony. Nor would almost anyone but a few concerned civil libertarians be terribly concerned if the President ordered the man's assassination by SEAL squad or drone missile alike, despite the clear violations of international law that such an action would entail. No, most would doubtless celebrate. Does that mean the President should do such a thing? Of course not. What it means is that the enforcement of international law to deal with people like Kony and Al-Awlaki--or Dick Cheney, for that matter--needs to be far, far stronger. It needs to have teeth. And it needs to have inherent legitimacy.
Because as long as the only choices available are allowing 1) evil people to operate indiscriminately with a pseudo-isolationist policy, or 2) giving the American President carte blanche to take whatever action he or she sees fit, most Americans are going to pick option number two every single time. And they'll figure that like Lucius Cincinnatus or Christopher Nolan's incarnation of Batman, the President will give up his authority once the "threat" has subsided.
If that sounds as scary to you as it does to me, then the answer isn't to point to the Constitution screaming "Rule of Law!" It doesn't work for the tea party types who oppose universal healthcare, and it's not going to work for civil libertarians. The answer is to build stronger international institutions that can deal with people like Kony and Al-Awlaki appropriately, such that it would be as much an overreach of Presidential power and jurisdiction to take such an action, as it would be for your local sheriff to attempt to arrest Bin Laden in Pakistan.
As with so much else, the answer lies not in a backward retreat toward isolationism and reverence for nation-state constitutions, but rather in a forward advance toward a more tightly bound and accountable international community.
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