Did someone mention consistency?

Recently, Clark posted a short thought about how our political outrage tends to wax and wane with the power our preferred party is holding at the time we access our emotions.

On that thought, as the resident liberal around here and a generally pro-Obama guy as these things go, I am outraged and disgusted by the legal analysis in the Justice Department white paper that is believed to be close to, if not the actual analysis, the Obama administration uses to justify extrajudicial killing of American citizens believed to be enemy combatants.

Take a look at that memo. Let your eyes adjust to the NBC News watermark, which might take a while, much of which will be spent trying to wrap your mind around NBC News breaking a story. Then read the memo. It is as broad a claim of executive power as you are likely to see. It is garbage. It claims virtually unlimited power while shedding crocodile tears for the cherished principles it dismantles in making the claim.

One ambiguous phrase is stacked on top of another until the inescapable conclusion is that extrajudicial killing is justified whenever the United States wants to use it. The threat matrix is basically an Excel spreadsheet where every cell says "Well, what do you WANT to do?"

The memo carefully cites prior case law as a prelude to stretching any leeway given to the Executive Branch well beyond reason. It is permissible to respond to imminent danger? Excellent. Imminent threat now means… threat. Seriously. The opinion literally reads the word 'imminent' out of the limitation on the grounds that imminence is complicated. "Senior operational officer" and "associated forces" – theoretically limitations – are not defined at all, so "what do you WANT to do" is the de facto standard. The "feasibility of capture" limitation is no limitation at all, since it justifies any scenario short of "you can not kill an Al Qaeda official who accidentally walks, unarmed, into a military prison." The less said about the wave of the hand the opinion gives to the need to limit collateral damage, the better, since the number and lethality of drone strikes in the last year should have embarrassed anyone out of citing that principle here.

Some pages follow about the Constitutional rights unique to Americans caught in the sights of the War on Terror but, honestly, who gives a shit? After you get through reading the broad authority given to assassinate, the idea that the 4th Amendment might somehow give pause is a joke. The power claimed to drop bombs in civilian areas to kill enemy combatants of ambiguous operational importance is the real moral horrorshow here. The Constitutional rights stuff is picayune academic jerking off.

There is probably a well-reasoned analysis of the appropriate circumstances for using drone strikes to kill enemy combatants. The analysis would genuinely grapple with what it means for a threat to be 'imminent'; for capture to be 'unfeasible'; for collateral damage to be 'humane.' This memo is not it, though it desperately pretends to be.

This document is David Addington's unitary executive wet dream, so we'll see how consistent the right stays. I'm predicting a surge in demand for fainting couches. Consistency is not for the faint of heart.

UPDATE: Might as well give credit where credit for something appalling is due: Republicans are lining up to agree with the broad executive power to kill on a hunch in the white paper. Consistent. Disgusting, but consistent.

Last 5 posts by Charles


  1. James Pollock says

    We're overdue for a lengthy discussion of the legal implications of unarmed surveillance drones, much less the armed variety.

    Constitutionally, what are the limits of the President's authority to act outside the borders of the United States? Treaties, of course, are supposed to be supreme law… but negotiating treaties falls under the President's scope of authority (with advice and consent, of course). Congress could cut off funding, if it finds the President's actions abhorrent enough, but even that might not be enough to stop a determined President (see Iran-Contra).
    I think you'll need an amendment to really deal with this problem.

  2. Matthew Cline says

    [T]he confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.

    “broader concept of imminence”. Just let that one sink in.

  3. Steve says

    Off topic, but: help me out here guys, isn't academic freedom your beat? Got nothing to say about CUNY?

  4. says

    I'm a liberal, and I find this sort of behavior abhorrent.

    As you point out, though, the level of outrage is always tempered by political considerations.

    So then the question becomes whether people would threaten the political power of the group they favor in order to change the undesired behavior, and if a transfer of power took place, would the abhorrent behavior be mitigated?

    I think the answer to both is no. The creep of executive power, particularly regarding extrajudicial killings and the use of military power for assassinations abroad has been going on for awhile now, under administrations of both parties.

    So if Democrats tell Obama, and their party, that this is unacceptable, the party is likely to find a polite way to reply, "what are you going to do about it? Vote Republican?"

    Such is the weakness of representative government. We elect representatives who largely act as they see fit, rather than how we see fit.

    Ideally I'd like to see a lot more direct voting on referenda, but I can also easily see a lot of drawbacks there…

  5. AlphaCentauri says

    People are stuck on the "unarmed drones" issue. That's brought matters to a head, because they can accomplish their goals more successfully with less immediate risk. But it's just another way to kill people before they kill us. The underlying issues aren't new.

    A large proportion of the population would agree with the proposition that the best solution to people who are a threat to our safety is to kill them first. There's very little thought about the subsequent consequences or whether the first-strike strategy actually protects us.

    We may disagree on what is morally acceptable. But everyone prefers being safe over being in danger. If our actions are making us less safe rather than more safe because they are fomenting hostility toward Americans, we need to change course.

  6. Xenocles says

    "I think you'll need an amendment to really deal with this problem."

    What we really need is a better class of politician, and in turn a better class of electorate to vote for them. All laws are powerless if the people behind them don't respect them.

    And no, I don't have a clue on how to get there from here.

  7. Nicholas Weaver says

    At least John Yoo had the balls to sign his reprehensible shit. So right there, thats one way that Bush administration has beat the Obama administration in this area.

  8. says

    Steve, Let me help you out.

    Our "beat" is whatever we want to write about at any given moment. In this case, it's a fine post by Charles, our least prolific author, on a matter of importance far greater than whatever silliness the usual suspects at a city college are thinking up in the name of political correctness: the subversion of the republican ideal that American citizens have a right to trial by jury before their government can impose a sentence of execution.

    And here you've gone and shat all over the post, with your whinging, petulant demand that we rush to write about some trifle that won't be remembered in two weeks, something that's of interest to you only.

    I can promise you this: We will never write about whatever trivia is going on at CUNY. If the Soviet Union detonated an airburst over the campus of CUNY, we'd stand mute. Professors at CUNY could discover a practical method of delivering fusion power, freeing all mankind from work, and we wouldn't bother to thank them.

    All because of YOU.

  9. Megadan says

    The writing at this blog is exceptional and far exceeds any of the meandering nonsense that passes for "front line reporting" these days. Thanks to Charles, Patrick and Ken for their efforts.

  10. Chris says

    They reserve the right to kill americans extra-judiciously, I reserve the right to inflict the Law of Unintended Consequences back on them. 4th Generation Civil War here we come!!!

  11. Daniel says

    I'm profoundly unsurprised by the administration's analysis. What did we EXPECT the reasoning to be? There are only so many ways to interpret the 4th amendment, and 'ignore that unenlightened drivel' is the only one that allows one person in the executive branch to authorize assassinations of U.S. citizens.

  12. says

    As a conservative who regularly discussed my problems with this sort of expansion during the Bush II years, I pledge the following, as I have serious problems with this and other related issues of this administration:

    1. This is now on my list of "utterly horrible illegal crap."

    2. If there is a Republican or other President ever again (I expect a reign of semi-benevolent tyrants, neither Republican nor Democrat, at any given election), I promise to discuss these matters in the same tone, if not more shrilly for being my own party.


  13. says

    Though Patrick's approach is correct, since Brooklyn College is walking distance from my house, re: CUNY, Dershowitz can pound sand. Until either Brooklyn College or CUNY cancels the BDS panel it is a non-issue but for the political grandstanding. Other people have this one covered.

  14. says

    Patrick: "I can promise you this: We will never write about whatever trivia is going on at CUNY. […] All because of YOU."



  15. CWuestefeld says

    the party is likely to find a polite way to reply, "what are you going to do about it? Vote Republican?"

    Such is the weakness of representative government.

    More specifically, it's the weakness of a representative government with a thoroughly-entrenched two-party system, so that there's no viable alternative than choosing one of the sides of the same coin.

  16. says

    "There is probably a well-reasoned analysis of the appropriate circumstances for using drone strikes to kill enemy combatants."

    I'm a-thinking'… in an actual declared war? When they're shooting at you?

    On the other hand, applying the gov standards to personal self defense would beat hell out of the simple castle doctrine. [grin]
    [cue music]
    If someday it may happen that a victim must be found
    I've got a little list, I've got a little list
    Of society's offenders who may well be underground
    And who never would be missed, they never would be missed.

  17. says

    David Josselyn wrote:

    So if Democrats tell Obama, and their party, that this is unacceptable, the party is likely to find a polite way to reply, "what are you going to do about it? Vote Republican?"

    OR… Consider that it is very likely that the Republican nominee would continue the practice (a safe bet, IMHO). They could stay home on election day, but that's a very quiet protest. A lot of us chose to vote for a guy who had no chance to win, but who would very definitely (and loudly) decline to continue the practice, calling it murder. It was Gary Johnston, Libertarian, this time.

    Of people who had a chance to, a bit more than 1% voted Johnston. It's not that he's a threat to win, but can "serious" politicians really ignore it?

  18. Keith says

    The negative effects of executive power expansion are cumulative.

    People who give tacit (or even explicit) approval to such expansion simply because their preferred political party is in charge should consider how the power could be abused when another party holds office.

  19. Dan Weber says

    I can definitely see the same people who freaked over Bush's indefinite confinement don't care about drone killings, or vice versa.

    In both, I think you can make a case that the President should have the power — but that's something that should happen after a discussion, not because the President simply assumed the power and no one "important" felt like standing up to him.

  20. jpe says

    I can definitely see the same people who freaked over Bush's indefinite confinement don't care about drone killings, or vice versa.

    I'm a liberal, and my primary objection to Bush turned on separation of powers: the warrantless wiretapping, torture, Gitmo (at first!), etc., were all violations of duly enacted US law.

    I never really had any civil rights objections to the treatment of al-Qaeda members (although his sloppy incompetence probably meant a lot more false positives than there should have been), and still don't. Obama is acting pursuant to Congressional statute and is in acting broadly in accordance w/ the laws of war.

    I'd be open to more Congressional oversight, but I'm certainly not having any fainting spells like the firebagging left is.

  21. Orv says

    Ultimately NO president, of either party, is going to willingly reign in executive power. Anyone elected president is going to think they deserve all of it and then some. It's up to Congress and the courts to make that happen.

  22. Steve says

    Patrick: Wow. Touched a nerve? Not questioning your right to write about whatever you want. Maybe go back and read the question? It's your call, but I was requesting, not demanding, a polite, reasoned answer to a simple question. No "shit" involved, unless by shit you mean criticize in any way. The funny thing is, I agree with you that compared to other infringements of liberty such as being assassinated, academic freedom is pretty far down the list. The point I was trying to make is that other authors on this blog have made a big deal out of the issue when the infringement was coming from the left. Apropos of the title of this post, the silence on CUNY seems inconsistent. If you or anyone else would like to respond in reasoned and polite way, I'd like to hear it. Otherwise my request is that you keep it to yourself. Thanks.

  23. says


    If you get bloggers together, they'll argue about everything.

    Except one thing: they all despise "why aren't you writing about X?" comments.

    And now you're doubling down, insinuating that the reason that we haven't written about this one topic is some sinister ideological bias.

    If course, if you didn't have your head up your ass, you might have noticed that I hadn't blogged for about a month and a half until this week, and that blogging by others has been sparse as well.

    It's possible we haven't ordered our lives according to your particular preferences.

    Why don't you fuck off?

  24. says

    Also, Steve … THERE HAS BEEN NO CENSORSHIP. Some people are complaining but as far as I know the conference is going ahead as planned, with the department sponsorship intact and with the original panel. It is a non-story, censorship-wise. It is more of a story asshat-wise but so is most of the news.

  25. says

    You better back up, Steve. You're playing with fire and you WILL. BE. BURNED.

    You didn't just interrupt Charles with your "simple question." You insulted Charles. You insulted Ken. You insulted David, and Derrick, and Grandy.

    And you insulted me.

    At Popehat, we have these boys that have gone out there, night in and night out, doing everything they can to be the very best at what they choose to do with their life. Those boys have given their lives to the blog. Those boys are here tonight! WE ARE!

    When my man Charles wrote this post, he was laying it all out on the line. He wrote without fear. He gave it all he had. He was rapping the stone truth. The truth you didn't want to hear.

    Well HEAR ME NOW Steve, and man up to the truth. Because the truth hurts baby, but if it doesn't kill you, it makes you stronger. And the truth is, you just crossed the line. This is OUR HOUSE, and YOU WILL NOT disrespect us, or you will be OUT IN THE STREET!

    We're not going anywhere. You can't hold us in your hands. You can't predict our life. We've bled and we've sweated. When was the last time you wrote for an hour, cut yourself five times, bled for forty-five minutes, WHEN… WERE… YOU… THERE?!? You weren't! You weren't!

    You were never on the firing line, on the road, forty days and forty nights, bleeding, sweating, crying, preaching the Word. You can't hold people's lives in your hand. We're the greatest blogging crew of all time. I want to say it again. You can't control us or our future. Our future is not set. There is no fate but what we make for ourselves.

    In closing, let me tell you something. In all my years in blogging, my greatest brother with this band has been Charles. So if we're going out, we're going out on a high note, Charles! I want Charles right here, and I want Charles to know I have his back. That's right, that's right! And I will destroy ANY MAN WHO TRIES TO TAKE what I got.

  26. Xenocles says

    "I never really had any civil rights objections to the treatment of al-Qaeda members…"

    You mean whomever the President or the people he delegates decide is a member of al-Qaeda, right? Because that's the gist of the memo.

  27. nlp says

    I read the NBC article yesterday, and then read it again, then gave it one more try. All I was left with was that the president is allowed to name anyone, including American citizens, as an enemy, and to kill them without any recourse to the judicial requirements of a trial, including indictments, hearings, representation by an attorney, a chance to defend oneself, a trial, a jury, and an appeal. Just a decision by the president that someone is a threat of some kind.

    I'm glad to see some moral outrage about it. I haven't seen that kind of outrage in the news, and am relieved that thoughtful people I have come to trust have considered the matter and are appalled by it.

    (Also, I have no idea what is going on at CUNY, but I really wish that New Yorkers would stop considering themselves as the center of the universe).

  28. says

    Off topic, but why haven't you guys written on CBS banning "thong type costumes" and "bare fleshy under curves of the buttocks and buttock crack" during the Grammy awards. I thought that censorship by "the man" was your beat over here.

  29. Xenocles says

    Now that I think about it, one virtue of the inconsistency and TEAM cheerleading that we have now is that these issues are at least talked about with someone on the right side, if only by accident.

  30. says

    Actually, I wanted to point out that I don't experience "feelings" as you ephemerals understand the term, and as such it's not really possible for someone to find a proper frame of reference to insult me.

  31. James Pollock says

    "Ultimately NO president, of either party, is going to willingly reign in executive power."
    Flatly wrong and easily disproved. First off, there's the obvious case of Ford.
    The different elements of the federal government jostle for power, with some waxing and some waning at any given time. It's usually a zero-sum game, with increased power for one coming at the expense of decreased power of the other(s). So, after Watergate, Congress increased its own power at the expense of the executive, and Ford allowed it to happen. Periodically, the Court gets involved, too… and as the Court has no authority other than its own gravitas, any time it cuts the power of either of the other two branches it is because those branches concede.
    The recent court ruling regarding recess appointments, for example, seems likely to provoke some conflict, if it isn't overturned, because the Obama administration doesn't seem to want to accept it (I think they're right, and the circuit court is wrong, on that issue… and I thought the same thing when it was Democrats holding phony sessions to attempt to block President Bush from making recess appointments, too… Congress is not "in session" if there aren't enough Congresscritters to make a quorum within 50 miles of the Capitol).

  32. James Pollock says

    I should probably also point out that persons identified as "criminals" often get pre-emptive death sentences at the hands of law enforcement personnel right here at home. You don't have to go anywhere near the middle-east to see (or at least, read about) this sort of thing.
    For that matter, wanted posters used to be payable "dead or alive", no? Is the complaint that by using drone strikes, the President has ousted the private sector from this lucrative business opportunity?

  33. AlphaCentauri says

    Republicans lining up to agree with the white paper should be a slap upside the head to alert Obama that he needs to reverse this policy.

  34. Sam says

    All of this information was available before the election. Obama's supporters clearly aren't so disgusted as to take their votes elsewhere.

  35. nodandsmile says

    @Patrick: if there's a reference there, I'ma missin it but 'tis a beautiful thing. preach it brother

    @general: maybe a liberal… helluva lot o' crap going on, this WH 'opinion' is a sublime example of killing a beautiful, always flawed but beautiful experiment in humanity

  36. says

    This is great news!

    We are one more ridiculous and insulting power-grab closer to the next revolution. We still have a long way to go, however.

    Come on, Obama, you can do it!