March 11, 2013

Multiple Choice

Glenn Greenwald analyzes this fascinatingly constructed NYT article on the alleged process by which Anwar al-Awlaki was targeted and killed by a drone strike in September, 2011, and concludes that the article is little more than a narrowly tailored news-ified apologia written by administration apparacthiks, obediently put into New York Times format, salted with objectivesque, newsy sounding bits, and presented as "news." The ludicrous image presented of CIA bosses wanting to kill al-Awlaki but reluctantly holding back, saying "shucks, his preaching is protected by the First Amendment, guys. Much as we want to get him, our hands are tied. Unless we can catch him operationalizing, he's got us over a barrel" made me snort audibly when I read it over the weekend. And the idea that al-Awlaki's presence in the target zone of the first, unsuccessful attack was a mere coincidence (because the timing just didn't happen to work out with regard to the post hoc justification offered by the Times) is similarly preposterous.

Ann Althouse, noting the administration's slippery definition of "engaged in combat," seems to have come to a similar conclusion, expressed obliquely in this very interesting set of possible orders of operation for the targeted killings, presented as a multiple-choice quiz:

In what order do they make these decisions? Consider these 4 permutations.
1. They want to kill X.
2. They arrive at the decision that X is an enemy combatant.
3. They kill X.

1. They want to kill X.
2. They kill X.
3. They arrive at the decision that X is an enemy combatant.

1. They arrive at the decision that X is a enemy combatant.
2. They want to kill X.
3. They kill X.

1. They kill X.
2. They want to have wanted to kill X.
3. They arrive at the decision that X is a enemy combatant.

"It's a clusterfuck of A, B, C, and D" is closest to the correct answer no doubt, as a general matter. But to the degree that the targeted killing program has any claim to legitimacy (and leaving aside the problem of it all being self-adjudicated without any outside oversight or review) the only conceivably reasonable, defensible process would be C. In the case of al-Awliki, the New York Times Bureau of the White House Communications Department can't manage to present much better than A, and even then you have to go along with the notion that the first, unsuccessful strike that occurred between steps 1 and 2 was unrelated to the process. But, the answer is clearly B.

Of course, all four of these orders of operation are available to be employed at any time, including D. In fact, there's also an E: "they kill X, never mind why" and an F: "there's no way of determining if anyone was killed or why, so I don't know what to tell you." With no judicial review or outside oversight, it's more or less an "anything goes" standard.

One of Rand Paul's most compelling challenges to his Congressional peers is to say, basically, "we shouldn't be asking what the rules are, we should be writing the rules." And he's right, of course. I imagine that the result of this rule-writing would be something like C., subject to judicial review, possibly with a ban on due process-less executions of American citizens on US soil. Even with this there would be serious moral and practical objections to the targeted killing program, here and abroad, but it would be considerably more than what we've currently got, which is not too far off from an "anything goes, just trust us" standard. Of course to imagine that the Congress would do that, or that the executive would submit itself to such oversight, or that the courts would require it to, is an outlandish indulgence in pure fantasy. That's crazy, and sad.

Posted by Dr. Frank at March 11, 2013 09:24 PM