The not war and the not law

No prizes for guessing what provoked this entry. Nothing less than the ‘Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.’…

… the title of  a 16 page “confidential” Justice Department memo – unsigned & undated –  detailing the legal case for the killing of (U.S.) citizens, made public just hours ago by MSNBC News. The parenthesis are quite deliberate because contrary to what you will read or have already read in today’s headlines, the memo provides a legal argument not just for the execution of U.S. citizens, but for citizens of all other nations as well. I’m always perplexed as to why the killing of U.S. citizens is seen as horrific while the mechanized and far more extensive execution of foreign nationals, say in Afghanistan, Pakistan or Yemen, is hardly worthy of comment. Such visible blindness speaks, I think, to the decidedly American-centric focus of some U.S. human rights groups and news agencies, a territory I won’t wade into right now. The pdf (available here) is much more interesting than the syndicated stories which are circulating and only by reading it in full is it possible to understand the intricacies behind the legal argumentation.

There is lots to say about the memo, so I will split my response into two posts (see also ‘Geography unlimited and not quite extra-judicial killing’)

Let me start this post by pointing out what this ‘memo’ is not: it is not a legal ruling by a court. Rather, it is a partly-anonymous legal opinion from the viewpoint of the U.S. Government Justice Department which contains a plausible – if not persuasive – legal argument for the killing of citizens far away from any battlefield. Its primary purpose is a defensive one: it responds to (without directly addressing) accusations made against the US military and the CIA that there is no legal authority for the execution of individuals outside the warzone – even less the execution of U.S. citizens. There is a backstory to all of this, however,  which I think is immensely significant.

First, the memo tells us little that we did not already know and provides nothing in the way of legal argument that has not already been parroted in speeches by the Obama administrations legal staff (see for example the speeches of Harold Koh; John BrennanEric Holder; Jeh Johnson) . Moreover, as early as 2011 the New York Times learnt of the contents of this exact memo and released an extended report of its alleged content (see here). All that today’s memo does is confirm this report.  The basic legal justification for targeted killing remains the same as it has been for many years, and which, of course, pre-dates Obama. It is the 2001 Authorization for the Use of Military Force and it does as it says. Enacted just days after 9/11 it is Congress’ authorization to the President to:

“use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

While the AUMF (full text) has the force of law, the memo released today does not. The fact is that while there might be all kind of legal power to justify targeted killings,the centre of the debate is still a very very gray area. Many of the legal debates could be settled if the U.S. Supreme Court would hear the case and issue its opinion on the legality of targeted killings, but the truth is that there is strategic value in postponing such a hearing for as long as possible. Why? Because international law progresses through transgression and the more practice – custom – there is, the more likely it is that targeted killing will be, if it is not already, a non-question: it will become legal. Jurisprudence (scholarly opinion), legal speeches (such as those just mentioned) and U.S. practice (i.e. targeted killing) – all sources of customary law while not quite law themselves, will all be summoned to make targeted killing legal in the U.S. context. In Israel, of course, it is already legal and has been since the Israeli Supreme Court heard the case on targeted killing in 2006. But circumstances in the U.S. are very different and the case for the legality of targeted killing is much more difficult to make.

The following three paragraphs demonstrate the point that the U.S. prefers what we might call a ‘not law’ approach to lawfare: the use of informal law, rather than hard law as a weapon of fighting and defining war.

In 2010 the U.S. District Court of Columbia dismissed Nasser Al-Aulaqi’s petition to provide justification as to why the killing of his son, Anwar al-Aulaqi, had been authorized (Al-Aulaqi v. Obama et al2010). The dismissal was on procedural grounds; the Court insisting that Nasser, the father,  had no standing (right of appearance)  in the Court and that in turn the Court had no jurisdiction over the case. What this amounted to, in effect, was clear: the U.S. court system is not ready (or does not want) to hear a case on targeted killing.

A year later the American Civil Liberties Union (ACLU) filed a Freedom of Information (FOI) request to the U.S. Government seeking information about the targeted killings of three  U.S. citizens.  It wasn’t just Anwar al-Aulaqi that was killed in Yemen’s al-Jawf province in the autumn of 2011; just two weeks later, Abdulrahman Al-Aulaqi along with his cousin Samir Kahn – both U.S. citizens – as well as eight other ‘al-Qaeda militants’ were killed by a drone missile. (Again, it is not clear why so much attention has been given to Al-Aulaqi).In defence of the attack “U.S. officials” (they never have names), claimed that the son had associations with al-Qaeda and in response to claims that he was a minor, insisted that Abdulrahman was a 21 year old adult. A week later the al-Aulaqi family released his Colorado birth certificate. He was just sixteen years old. No evidence has been given as to his involvement and role in al-Qaeda. But the actual precedent which normalised the summary execution of U.S. citizens abroad has a much longer history and we should not forget that the first ever targeted-killing strike in Yemen, back in 2002, also killed a U.S. citizen, 29 year old Kamal Derwish (see Bill Vann’s report here) – but I digress. The ACLU FOI sought disclosure of the legal memorandum written by the Department of Justice Office of Legal Counsel that provided justifications for the targeted killing of Anwar al-Awlaki, as well as records describing the factual basis for the killings of all three Americans. The Government refused to release the documents. It has become obvious only today that this is the document – or something like it – that the ACLU originally requested, but not quite: this is the ‘unofficial’ version meaning that nobody has to stand behind or defend it. If it has a bad reception, which I suspect it might, then it can easily be dismissed.

Two years earlier, in 2009 the ACLU were chasing information about U.S. drone operations and had filed another FOI  requesting “records pertaining to the use of unmanned aerial vehicles (“UAV’s”) […] by the CIA and the Armed Forces for the purpose of killing targeted individuals.”. The response, far from helpful was at least interesting: The Departments of Defense, Justice, and State responded by releasing some records and withholding others. The CIA denied the request by refusing to confirm or deny whether the CIA drone strike program even exists. This amounts to what is called a ‘Glomar response’, the official legalese of the classic neither confirm nor deny stance we have come to expect from the CIA. In response, the ACLU filed a lawsuit against the CIA in 2010 stating that the denial of the FOIA request was not lawful because the CIA Director and other officials had already publicly acknowledged the existence of the CIA’s drone program. The court (ACLU vs. Dept. of Justice et al.) ruled in favour of the CIA.

This is, I realise, a lot of detail about nothing but I mention it all because it aptly demonstrates the refusal of the U.S. courts and the failure of other official legal channels to provide an actual substantive case on the legality of targeted killing. This ‘memo’ will not suffice for a legal explanation because it is patently one sided (and doesn’t even pretend not to be): it is the legal equivalent of hearing the defence without first standing accused and without hearing the case of the plaintiff. Seen thus, the anonymous ‘Justice’ Department has become the judge, jury and executioner of U.S. targeted killing policy.

The question is not even whether this is a plausible legal argument, but whether it is one that would persuade a court. In absence of a court decision the question turns on the court itself and we must ask why the judiciary will not hear the case on targeted killing. The answer, I suspect, is that there is little legal basis for the kind of expansively defined war that is being carried out in the name of targeted killing, just as there is little basis for the lax definition of ‘imminent threat’ which bankrolls the whole policy (more on these two points in the following post).

But this great conversation over the legal intricacies of targeted killing has two effects which speak to what Jaques Derrida once called the mystical foundations of law. First, the whispers of legality which grow later into speeches, opinions and memos entrain us – as publics and subjects – to think of targeted killing only as a legal problem. Its a rather technical affair, however, and all but some lawyers and a few legal experts understand the legal intricacies involved: it is, therefore, a debate that only lawyers and legal experts can win.  To say it is pointless for the rest of us would be hyperbole, but there might be something to be said for entering the targeted killing debates (plural) on grounds that we are more familiar with, be that art, ethics, politics or even critical legal studies. Second, such memos as the one released today register the rumour of legality in the consciousness of those who read such stories: it is a way not so much of creating facts on the ground as sewing plausible legal theses in the public domain. Law is a tactic of persuasion and we must be aware of its cunning, for as  Anthropologists John and Jean Comaroff once noted, formal law and legal judgement – as well as informal law and lawfare – are accompanied by a rhetorical performance which wraps politics and war in a “skein of lawfulness”.

My initial response then is that its not law, and even if it was I wouldn’t be persuaded.

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