A New Yorker article on the title book with a somewhat melodramatic subtitle that is not really met by the book itself cites AG Holder's analysis:
This sort of thing, along with discussions where the Administration specifically didn't use lethal force because various legal tests weren't met as applied to various troublesome foreigners in places like Somalia, is fairly reassuring to me. It turns out that there are rules and restraints, even in the midst of an authorization of force and so forth though you wouldn't know it from certain people. The reply to this in the article, however, is "It would be difficult to list all of the ways in which Holder’s arguments are disturbing." Really. For instance, after all, "the risk of creating political turmoil in Yemen is reason enough to avoid attempting an arrest there," political opposition to trials factored in the decision-making (the book doesn't lead me to think it had a sine qua non effect in any real fashion overall) and some risk of harm (some risk? you mean in isolated areas of Yemen?) should be acceptable.
On that last point, Congress authorized force against Al Qaeda. Why should it really be even necessary to risk the life of special forces to avoid the killing of some top operational leader of Al Qaeda? Why would it be that "disturbing" not to do that? As to the second concern, given the civil war there is a big factor is advancing the cause of Al Qaeda, putting aside that any decision probably has various factors involved, that isn't really a trivial concern. Like "well, it might make the leader there look a bit bad, so let's just kill the guy!," isn't quite the deal.
I'm sympathetic to Harold Koh, the liberal professor/activist turned lead legal adviser of the State Department, the department that was most sane in the Bush years. He was put out there to give a speech to discuss the legality of use of drones [a good summary] and other techniques, noting the authorization of force and the rules of national self-defense. The latter is well recognized but provide a limited test and Koh argued for a certain degree of risk to the U.S., the book noting he used a "battered wife" rule where the risk need not be then or there, but imminent enough. Also, the target (let's say Awlaki) has to be senior and directly involved enough. Rules are somewhat weaker on the traditional battlefield, that is, the Afghan/Pakistani border type situation.
The book covers various decisions and administration goings on though is not comprehensive -- a lot of focus on Lindsey Graham (who basically turns out to be a false hope) but not too many other political figures. No reference to the attempt by Awlaki's father to go to court to protect his son. Some emphasis on the attempt to bring KSM to trial in civilian court, something the book basically has blocked by Republican opposition, Democratic weakness and fear of backlash and pragmatic forces in the administration not willing to risk it all though Obama if given his druthers would do it, citing the judge's sentencing statement for Richard Reid:
The book is reassuring in the fashion that the current administration applies the rules in a serious and reasonable fashion. It provides a fairly positive vision (the usual caveats regarding the leanings of the sources) though generally suggests the Obama way is a bit muddled, which seems about appropriate given the messiness of the options. A brisk read, it is a helpful addition to the literature, providing some details from the inside. The book ends in the early part of 2012, basically in media res, though noting Al Qaeda appears to have been seriously harmed.
But, the "war on terror" or whatever you want to call it has a hydra quality to it. And, Gitmo is still open ... the final word of the book in fact. On that front, the book notes the troubling fact that the administration had no good way to deal with captures outside of the traditional battlefield. There, you can put someone in Bagram. For some, let's say a Somali pirate (not covered in the book), the criminal process is possible. But, what about someone seized in Somali as some possible terrorist figure? They managed one capture of such a person and he was nice enough to work with the authorities and he was eventually tried criminally.
Anyway, here's a review from Lawfare, which the book praised as a good source of material. Let me add that one thing that annoys me is the lack of openness in some ways, though the Koh speech underlines some rules have been publicly discussed. Jack Goldsmith, e.g., doesn't think it is a problem to release the legal memorandum justifying the Al Awlaki killing. This moves into the continuance of the state secrets privilege in some blatant ways. It would be nice also that some more clarity via legislative rules as to capture and international law, but on that front, the book sadly seems accurate that the dark side of politics is the more likely result.
As Ann Romney says, it's hard. Yeah.
Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.
But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens—even those who are leading efforts to kill innocent Americans. An individual’s interest in making sure that the government does not target him erroneously could not be more significant. Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.
Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.
This sort of thing, along with discussions where the Administration specifically didn't use lethal force because various legal tests weren't met as applied to various troublesome foreigners in places like Somalia, is fairly reassuring to me. It turns out that there are rules and restraints, even in the midst of an authorization of force and so forth though you wouldn't know it from certain people. The reply to this in the article, however, is "It would be difficult to list all of the ways in which Holder’s arguments are disturbing." Really. For instance, after all, "the risk of creating political turmoil in Yemen is reason enough to avoid attempting an arrest there," political opposition to trials factored in the decision-making (the book doesn't lead me to think it had a sine qua non effect in any real fashion overall) and some risk of harm (some risk? you mean in isolated areas of Yemen?) should be acceptable.
On that last point, Congress authorized force against Al Qaeda. Why should it really be even necessary to risk the life of special forces to avoid the killing of some top operational leader of Al Qaeda? Why would it be that "disturbing" not to do that? As to the second concern, given the civil war there is a big factor is advancing the cause of Al Qaeda, putting aside that any decision probably has various factors involved, that isn't really a trivial concern. Like "well, it might make the leader there look a bit bad, so let's just kill the guy!," isn't quite the deal.
I'm sympathetic to Harold Koh, the liberal professor/activist turned lead legal adviser of the State Department, the department that was most sane in the Bush years. He was put out there to give a speech to discuss the legality of use of drones [a good summary] and other techniques, noting the authorization of force and the rules of national self-defense. The latter is well recognized but provide a limited test and Koh argued for a certain degree of risk to the U.S., the book noting he used a "battered wife" rule where the risk need not be then or there, but imminent enough. Also, the target (let's say Awlaki) has to be senior and directly involved enough. Rules are somewhat weaker on the traditional battlefield, that is, the Afghan/Pakistani border type situation.
The book covers various decisions and administration goings on though is not comprehensive -- a lot of focus on Lindsey Graham (who basically turns out to be a false hope) but not too many other political figures. No reference to the attempt by Awlaki's father to go to court to protect his son. Some emphasis on the attempt to bring KSM to trial in civilian court, something the book basically has blocked by Republican opposition, Democratic weakness and fear of backlash and pragmatic forces in the administration not willing to risk it all though Obama if given his druthers would do it, citing the judge's sentencing statement for Richard Reid:
Here in this court, where we deal with individuals as individuals, and care for individuals as individuals, as human beings we reach out for justice, you are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist.I do wish that would have been what happened. Basically, and various pathetic Republicans railing against Obama (he led the killing of OBL ... if a Republican was in office, the party would think that alone should guarantee re-election) pissing in their pants about any alleged terrorist being tried in the U.S. ("I'm so scared! keep them away!!!!") didn't help, the nation wasn't mature enough for that sort of thing. Some want Obama to be above the fray, to be so much better than the nation as a whole, but this is fantasy. Instead, we have the imperfect system in place and we have to handle the current bunch applying it.
The book is reassuring in the fashion that the current administration applies the rules in a serious and reasonable fashion. It provides a fairly positive vision (the usual caveats regarding the leanings of the sources) though generally suggests the Obama way is a bit muddled, which seems about appropriate given the messiness of the options. A brisk read, it is a helpful addition to the literature, providing some details from the inside. The book ends in the early part of 2012, basically in media res, though noting Al Qaeda appears to have been seriously harmed.
But, the "war on terror" or whatever you want to call it has a hydra quality to it. And, Gitmo is still open ... the final word of the book in fact. On that front, the book notes the troubling fact that the administration had no good way to deal with captures outside of the traditional battlefield. There, you can put someone in Bagram. For some, let's say a Somali pirate (not covered in the book), the criminal process is possible. But, what about someone seized in Somali as some possible terrorist figure? They managed one capture of such a person and he was nice enough to work with the authorities and he was eventually tried criminally.
Anyway, here's a review from Lawfare, which the book praised as a good source of material. Let me add that one thing that annoys me is the lack of openness in some ways, though the Koh speech underlines some rules have been publicly discussed. Jack Goldsmith, e.g., doesn't think it is a problem to release the legal memorandum justifying the Al Awlaki killing. This moves into the continuance of the state secrets privilege in some blatant ways. It would be nice also that some more clarity via legislative rules as to capture and international law, but on that front, the book sadly seems accurate that the dark side of politics is the more likely result.
As Ann Romney says, it's hard. Yeah.
No comments:
Post a Comment
Thanks for your .02!