In recent weeks, the Obama administration has released two documents related to its programme of extrajudicial executions: The first was the secret memo that, like the Bush torture memo, was drafted by political appointees provide legal cover for criminal conduct I which the administration wished to engage. The second came in the form of Attorney-General Eric Holder’s letter to Rand Paul (KY-Plutocrat) in response to the latter’s question about the possible use of drones to execute US citizens within the US. The one is a secret get-out-of-jail-free card for internal use, whereas the other is a policy statement for public consumption.
In order to understand what Obama & Co. are telling us, we must read the two documents in tandem.
The secret memo does not deal specifically with the execution of US citizens on US territory. It sets out the basis, such as it is, for the administration’s general claim of the authority to decide who lives and who dies both under the US Constitution (ignoring the fact that no US court has ever even dealt with the issue, let alone supported the administration’s position) and under international law (which the authors accomplish by ignoring what international law says about the use of force and the fact that international law explicitly prohibits extrajudicial executions). There is nothing explicitly asserting the power to carry out these executions on US territory, but neither is there any disclaimer of that power. It assumes that „[any] operation of the sort discussed here would be conducted in a foreign country against a senior operational leader of al-Qa’ida or its associated forces
In brief, the memo claims that US citizens can be executed without charge or trial when an „informed high-level official“ (no rank or title is specified) believes that the person is a „senior operational leader“ of al-Qa’ida or unspecified „associated forces“, that an attack by the person in question is „imminent“ (more on the administration’s peculiar definition of „imminent“ later), and capture is not „feasible“ (Memo, p. 1).
As Glenn Greenwald points out, it is important to note at this point that:
[When] this memo refers to „a Senior Operational Leader of al-Qaida“, what it actually means is this: someone whom the President – in total secrecy and with no due process – has accused of being that. Indeed, the memo itself makes this clear, as it baldly states that presidential assassinations are justified when „an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the US“.
This is the crucial point: the memo isn’t justifying the due-process-free execution of senior al-Qaida leaders who pose an imminent threat to the US. It is justifying the due-process-free execution of people secretly accused by the president and his underlings, with no due process, of being that. The distinction between (a) government accusations and (b) proof of guilt is central to every free society, by definition, yet this memo – and those who defend Obama’s assassination power – wilfully ignore it.
(emphasis in original)
The „white paper“ further notes that there may well be other cases not dealt with in the memo in which US citizens can be executed without charge or trial, stating that:
As stated earlier, this paper does not attempt to determine the minimum requirements necessary to render such an operation lawful, nor does it assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances. It concludes only that the stated conditions would be sufficient to make lawful a lethal operation in a foreign country directed against a U.S. citizen with the characteristics described above.
(Memo, p. 16)
In other words, the memo sets out just a few of a potentially unlimited number of circumstances in which the US government might claim the power to have a US citizen murdered without charge or trial.
Eric Holder’s letter to Rand Paul, on the other hand, deals quite specifically with the issue of executing citizens without trial on US territory, and was clearly drafted with the media in mind.
Thus, the letter begins by saying that:
As members of this Administration have previously indicated, the U.S. government has not carried out drone strikes in the United States and has no intention of doing so.
This, of course, is as far as the dominant media read (or at least reported). I, on the other hand, was immediately put in mind of East German president Walter Ulbricht’s famous 1961 announcement that „there is no intention to build a wall in Berlin“. The construction of the wall was completed within one year thereafter.
„No intention“ certainly sounds quite definitive and reassuring, as does the remark (in the next sentence) that:
As a policy matter, moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat.
Neither of these statements is remotely definitive or reassuring. Holder is a lawyer; he knows how to choose his words carefully. When a lawyer declares that her client has „no intention“ of doing something, at most, it means that the client has no current plans to do whatever it is. As for the future: Who can really say?
Holder could have said that extrajudicial executions of US citizens on US territory (whether by drone or other means – Holder is careful to refer only to drones!) were „illegal“ or „unconstitutional“ (and he would have been quite right). He could have gone even further with a rousing proclamation that the very idea was „anathema to any society calling itself democratic“ or even (given sufficient hypocrisy, and I think we can take that for granted) that it would be „immoral and reprehensible“ to execute US citizens on US soil without charge or trial.
Instead, all he says is that there is „no intention“ of carrying out extrajudicial executions by drones in the US, and that „as a matter of policy“, the Administration „reject“ the use of military force where (in their opinion and only their opinion) „law enforcement authorities…provide the best means for incapacitating a terrorist threat.“ That is a heavily qualified statement.
Really, Holder could have said anything. What did he ultimately decide on? „No intention“. That alone should suffice to give us pause.
But wait! As Dan Savage might say, „It gets better“.
A few paragraphs later, Holder opines that
It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.
The examples of such „extraordinary circumstances“ Holder provides are Pearl Harbour and the 11 September 2001 attacks. However, every state invokes „extraordinary circumstances“ to engage in extraordinary crimes.
In this context, it is worth returning to the secret memo in order to understand what the government Holder represents means by this reference to Pearl Harbour or 9/11.
As noted above, the secret memo holds extrajudicial executions of US citizens to be acceptable in the event of an „imminent“ attack. „Imminent“ is one of those words we have grown accustomed to hearing in the past twelve years, but this appears to have been the first time the government have seen fit to define what it means when they say it.
It is a most peculiar definition indeed.
In everyday parlance, when we speak of an „imminent threat“ or the like, we imagine situations such as a loaded gun being pointed at us. This is also, by and large, the sort of „imminent threat“ courts in the US and elsewhere generally require for a criminal defendant to validly claim self-defence. Certainly, this is what most people will have taken the government to mean back when they were claiming (despite knowing better) that Iraq was an „imminent threat“.
From the secret execution memo, we learn how wrong we were. That memo explicitly states that the authors, and the government they represent, do not mean „imminent“ to mean „imminent“ at all. Rather, in the words of the memo, this requires „additional explication“:
[The] condition that an [alleged] operational leader present an „imminent“ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.
With this understand, a high-level official could conclude, for example, that an individual poses an „imminent threat“ of violent attack against the United States where he is an [alleged] operational leader of al-Qa’ida or an associated force and is personally and continually involved in planning terrorist attacks against the United States. Moreover, where the al-Qa’ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.
(Memo, p. 8, emphasis supplied)
In other words, there is no need for actual evidence of an imminent attack. It is enough for our „high-level official“ to believe that the intended victim might carry out such an attack sometime in the future, even if there is no evidence to support this assumption. Indeed, the memo goes so far as to state that the „imminence“ criterion could be met where the „informed, high-level official“ is satisfied (in his or her sole and unaccountable discretion!) that the intended victim has engaged in such attacks in the past, or, in a remarkable feat of circularity, in unspecified „activities posing an imminent [!!] threat of violent attack against the United States“, i.e., in circumstances where the „high-level official“ does not even have any evidence of participation in past attacks, but merely alleged affiliation with al-Qa’ida or an „associated force“.
In other words, when Obama & Co. say „imminent“, they mean hypothetical.
What, then, does this tell us of Holder’s invocation of „extraordinary circumstances such as PearlHarbour or 9/11? Certainly, nothing particularly reassuring.
Given the administration’s definition of „imminence“, what holder is telling us is that the administration might be willing to start executing US citizens on US soil without charge or trial if they believe there to be a hypothetical possibility of an attack like PearlHarbour or 9/11.
This is hardly an „extraordinary circumstances“. There will always be some hypothetical possibility of an attack like those Holder mentions, certainly as long as the US keeps attacking, invading, occupying, and carrying out military coups in other people’s countries.
Holder is thus „reassuring“ us that the administration he represents will murder anyone they want, when- and wherever they want, as long as they are convinced that they really want to do it.
I feel safer already.
Much has been made in this context of the possibility of drone strikes within the US. Indeed, as noted above, the correspondence between Paul and Holder is explicitly about executions by drones within the US. This, unlike the executions themselves, which the government assure us are entirely probable, seems quite unlikely to me.
In Yemen, Pakistan, Somalia, Afghanistan, Libya, and Iraq (etc., etc., etc.), the US government can (and do) do whatever they want, and can rely on our „cantankerous press“ not to notice. However, if the government were to fire off enough high explosives to take out a city block here at home, that might not play well in Peoria. Even Andrew Sullivan, who supported the US government claiming dictatorial powers before Obama made it cool, might find that a bit excessive. The government want to avoid discussion of these issues, not encourage it.
There is no shortage of more subtle ways of murdering people one wants to get rid of. A quick glance southward, where people have years of experience with US-installed and -supported regimes that claim the right to carry out extrajudicial executions, shows that there is generally a marked preference for more quiet murders that can’t be clearly attributed to the dictator in question.
In Chile, for example, Pinochet preferred to simply make people „disappear“ by abducting them to some secret torture facility, killing them there, denying ever having arrested the victim, and burying them in secret (or dumping them into the Pacific Ocean from helicopters). Between the NDAA – authorising arbitrary, indefinite, incommunicado abduction of anyone the executive branch wants to lock up – and the execution memo, there is certainly no reason to rule out the ever-popular „disappearance“ method.
If people started asking questions, Pinochet arranged, with the help of his allies in the press, to claim that the „extremists“ in question had killed each other, or that they had been killed in a shootout with the police. When union leader Tucapel Jiménez was murdered, the CNI (secret police) made it look like a robbery, and even had an unemployed alcoholic by the name of Juan Alegría commit „suicide“ after writing out a false confession to Jimenez‘ murder. Former president Eduardo Frei Montalva, who became a prominent opponent of the dictatorship in the 1980s, was dispatched with weaponised botulism whilst in hospital for routine surgery. „Natural causes“. This practice of staging evidence to give the dictatorship deniability is known as montaje („montage“).
If and when this or a future government should find the circumstances sufficiently „extraordinary“, it is much more likely that they will resort to „disappearances“ and montajes than to taking out entire neighbourhoods with drone bombs. Ask Fred Hampton.
Things like this are, needless to say, profoundly terrifying to talk about. That’s the whole idea.
Most of the discussion of the US government’s attacks on human rights at home has been dedicated to establishing that those attacks are real, despite the official denials and rationalisations. As such, anyone who has paid attention – and is not in profound denial – knows that, over the past decade or so, the US government has put in place as official policy all of the emblematic crimes – torture, „disappearance“, and now extrajudicial executions – that characterised terror states like Chile under Pinochet or Guatemala under Ríos Montt.
That is scary shit, and is proof that we – especially those of us who are Muslim, or have Muslim-sounding names, or are active in one way or another against war and imperialism and the capitalist system they rode in on – are living in very dangerous times.
However, the truth alone does not necessarily set you free; often enough, it is equally capable of terrifying you into inaction.
Virtually all of what I’ve read has focussed on establishing the facts, but neglected the most important question of all, the question that really can begin to set us free: What do we do about it?
So far, the main approach has been to challenge at least some of these egregious human rights violations in court. In itself, this is not a bad start, but we need to break away from the illusions we learnt in school: The courts and the highly overrated Constitution will not protect us from oppression. Free speech was in the Constitution for a century and a half before we had anything that could seriously be called freedom of speech in this country. The Equal Protection Clause didn’t end Jim Crow. And even a federal court order has not always been enough to secure the freedom of the abductees illegally held in the Guantánamo concentration camp.
More often than not, going to court makes us feel like we are taking action, when in fact we are just spinning our wheels.
We need to do more. This is too serious to be left up to the judges.
What, then, can we do?
One thing we need to do is to learn how to operate in this „New Normal“, and fast. In every country that has been subjected to the rule of terror states like those of Pinochet or Ríos Montt (or Videla in Argentina, or D’Aubuisson & Co. in El Salvador, or the Lobo dictatorship in Honduras today), there have been courageous, ordinary people who organised to expose the crimes of the dictatorships, provide support to victims and their families, provide safe havens to those in danger, and fight back.
Latin America – thanks to the Good Neighbour in the north – is full of people with years of knowledge and experience in circumstances more „extraordinary“ than those we currently face (but, as a guest character on ER once said, „Every new day brings its own surprises.“) We need to be learning from those people – they know a lot more about this than we do, because they’ve seen it before.
Another good start would be to drop this facile distinction – imposed by the law and dominant in the culture – between those who have US passports and those who do not, between those whose papers are in order, and those without papers, and between „us over here“ and „them over there“. We have many more interests in common with undocumented workers from Nicaragua, villagers in Pakistan, and Palestinian peasants than we will ever have in common with our all-American ruling class.
In this series of attacks on fundamental human rights at home and abroad, the ruling class has made it clear that the whole world is their battlefield, and we are all – citizen or not, „over here“ or „over there“ – potential enemies. We need to act accordingly and struggle together.
 It is common in the media and in official pronouncements to hear this practice described as „targeted killing“. However, leading human rights groups, and the US State Department’s own human rights reports, refer to this practice of giving the executive blanket authority to order the murder of persons as „extrajudicial execution“, and I will not euphemise the practice here.
 A distinction I will accept here only reluctantly, and only because the distinction is made in the two documents, and because US law made such distinctions in many contexts even before this latest attack on human rights. I in no way accept its legitimacy.
 The standard of „imminence“ required in order for a country to lawfully use or threaten the use of military force in self-defence under international law is even stricter, requiring the actual or imminent attack to be so overwhelming and immediate that there is no time to consider any other option.