Top Five Objections to the White House's Drone Killing Memo

By Juan Cole, Informed Comment

06 February 13

BC's Michael Isikoff has revealed the text of a white paper composed for Congress by the Department of Justice that sheds light on the legal arguments made by Eric Holder in justifying the killing by drone strike of Americans abroad, who are suspected of belonging to al-Qaeda. That the memo did not even require that the US know of a specific and imminent plot against the US, of which the al-Qaeda member was guilty, for it to kill him from the skies, alarmed all the country's civil libertarians.

Here are five objections to the vision of the memo, which it seems to me is directly contrary to the spirit and the letter of the US constitution. It is contrary in profound ways to the ideals of the founding generation.

1. In the Western tradition of law, there can be no punishment without the commission of a specific crime defined by statute. The memo does not require that a specific crime have been committed, or that a planned criminal act be a clear and present danger, for an American citizen to be targeted for execution by drone.

2. To any extent that the president's powers under the memo are alleged to derive from the 2001 Congressional Authorization for the Use of Military Force, i.e. from the legislature, they are a form of bill of attainder (the History Learning Site explains what that is here):

"A bill, act or writ of attainder was a piece of legislation that declared a person or persons guilty of a crime. A bill of attainder allowed for the guilty party to be punished without a trial. A bill of attainder was part of English common law. Whereas Habeus Corpus guaranteed a fair trial by jury, a bill of attainder bypassed this. The word 'attainder' meant tainted. A bill of attainder was mostly used for treason . . . and such a move suspended a person's civil rights and guaranteed that the person would be found guilty of the crimes stated in the bill as long as the Royal Assent was gained. For serious crimes such as treason, the result was invariably execution."

What, you might ask, is wrong with that? Only that it is unconstitutional. Tech Law Journal explains:

"The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: "No Bill of Attainder or ex post facto Law will be passed." . . .

"These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment." William H. Rehnquist, The Supreme Court, page 166.

The form of the AUMF, in singling out all members of al-Qaeda wherever they are and regardless of nationality or of actual criminal action, as objects of legitimate lethal force, is that of a bill of attainder. Congress cannot declare war on small organizations - war is declared on states. Such a bill of attainder is inherently unconstitutional.

3. The memo's vision violates the principle of the separation of powers. It makes the president judge, jury and executioner. Everything is done within the executive branch, with no judicial oversight whatsoever. The powers the memo grants the president are the same enjoyed by the absolute monarchs of the early modern period, against whom Montesquieu penned his Spirit of the Laws, which inspired most subsequent democracies, including the American. Montesquieu said:

"Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

Most kingdoms in Europe enjoy a moderate government because the prince who is invested with the two first powers leaves the third to his subjects. In Turkey, where these three powers are united in the Sultan's person, the subjects groan under the most dreadful oppression.

Ironically, given contemporary American Islamophobia, the Obama administration has made itself resemble not the Sun-King, Louis XIV, who at least did have a court system not completely under his thumb, but rather, as Montesquieu saw it, the Ottoman sultans, who he claimed combined in themselves executive, legislative and judicial power. (Actually the Muslim qadis or court judges who ruled according to Islamic law or sharia were also not completely subjugated to the monarch, so even the Ottomans were better than the drone memo).

3. The memo resurrects the medieval notion of "outlawry" - that an individual can be put outside the protection of the law by the sovereign for vague crimes such as "rebellion," and merely by royal decree. A person declared an outlaw by the king was deprived of all rights and legal protections, and anyone could do anything to him that they wished, with no repercussions. (The slang use of "outlaw" to mean simply "habitual criminal" is an echo of this ancient practice, which was abolished in the UK and the US).

I wrote on another occasion that the problem with branding someone an "outlaw" by virtue of being a traitor or a terrorist is that this whole idea was abolished by the US constitution. Its framers insisted that you couldn't just hang someone out to dry by decree. Rather, a person who was alleged to have committed a crime such as treason or terrorism had to be captured, brought to court, tried, and sentenced in accordance with a specific statute, and then punished by the state. If someone is arrested, they have the right to demand to be produced in court before a judge, a right known as habeas corpus ("bringing the body," i.e. bringing the physical person in front of a judge).

The relevant text is the Sixth Amendment in the Bill of Rights:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

4. The memo asks us to trust the executive to establish beyond the shadow of a doubt the guilt of an individual in a distant land, to whom access is so limited that the US cannot hope to capture him or have local authorities capture him. But Andy Worthington has established that very large numbers of the prisoners the US sent to Guantanamo were innocent of the charges against them. If the executive arm of the government can imprison people mistakenly, it can blow them away by drone mistakenly. A US government official once told me the story of an Iraqi Shiite who had fled persecution under Saddam through Iran all the way to Afghanistan. In 2001, locals eager to make a buck turned him in as "Taliban" to the US military, which apparently did not realize that Iraqi Shiites would never ever support a hyper-Sunni movement like that. So the Iraqi Shiite was sent to Guantanamo and it could even be that Taliban themselves were paid by the US for turning him in. The official may have been speaking of Jowad Jabar. These American officials are way too ignorant to be given the power to simply execute human beings from the sky on the basis of their so-called 'intelligence.'

5. The memo, as Glenn Greenwald points out, ratifies the Bush/Cheney theory that the whole world is a battlefield on which the US is continually at war. Treating the few hundred al-Qaeda, spread around the world in 60 small cells, as an enemy army, making them analogous to German troops in WW II, is insane on the face of it. Our current secretary of state, John Kerry, largely rejected the notion. Al-Qaeda consists of criminals, not soldiers, and they pose a police counter-terrorism problem, not a battlefield problem. The notion that the whole world is a battlefield violates basic legal conceptions of international law such as national sovereignty.