Attorney General Eric Holder explained last week why it’s legal to murder people — not to execute prisoners convicted of capital crimes, not to shoot someone in self-defense, not to fight on a battlefield in a war that is somehow legalized, but to target and kill an individual sitting on his sofa, with no charges, no arrest, no trial, no approval from a court, no approval from a legislature, no approval from we the people, and in fact no sharing of information with any institutions that are not the president. Holder’s speech approached his topic in a round about manner:
“Since this country’s earliest days, the American people have risen to this challenge – and all that it demands. But, as we have seen – and as President John F. Kennedy may have described best – ‘In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger.'”
Holder quotes that and then immediately rejects it, claiming that our generation too should act as if it is in such a moment, even if it isn’t, a moment that Holder’s position suggests may last forever:
“Half a century has passed since those words were spoken, but our nation today confronts grave national security threats that demand our constant attention and steadfast commitment. It is clear that, once again, we have reached an ‘hour of danger.’
“We are a nation at war. And, in this war, we face a nimble and determined enemy that cannot be underestimated.”
Can’t Be Underestimated
So, if I were to estimate that Al Qaeda barely exists and is no serious threat to the Homeland formerly known as the United States, I would not be underestimating it? If I were to point out that no member of that horrifying outfit has been killed in Afghanistan this year, that fact would not contribute to an
unacceptable underestimation? What fun it is to fight the most glorious of wars in the hour of maximum danger against an enemy so pitiful that it literally cannot be underestimated.
If the people of Iraq and Afghanistan hadn’t risen up and defeated the trillion-dollar U.S. military with some homemade bombs and cell phones, and were Iran not threatening to fight back if attacked, this might be all fun and games. Except that Holder isn’t talking about those wars that still sort of look like wars. He’s talking about a war paralleling the Soviet Threat, a war that is everywhere all the time, a war that encompasses the murder of anybody anywhere as an “act of war,” even if there’s nothing warlike about the victim or the situation other than the fact that we are murdering him or her.
What Does Justice Dept. Head Know About Justice?
“I know that – more than a decade after the September 11th attacks; and despite our recent national security successes, including the operation that brought to justice Osama bin Laden last year – there are people currently plotting to murder Americans, who reside in distant countries as well as within our own borders. Disrupting and preventing these plots – and using every available and appropriate tool to keep the American people safe – has been, and will remain, this Administration’s top priority.”
Osama bin Laden was murdered. No attempt was made to capture him. You can defend that murder, but to call it “bringing to justice” and to get away with that characterization is to win the argument before you’ve begun it. This speech was advertised as a legal defense of such murders, and such a defense can hardly begin and end with equating murder with justice.
Nor can promising not to spy on U.S. citizens without proper procedures satisfy concerns with the claiming of power to kill people, including U.S. citizens. Here’s Holder:
“Let me give you an example. Under section 702 of the Foreign Intelligence Surveillance Act, the Attorney General and the Director of National Intelligence may authorize annually, with the approval of the Foreign Intelligence Surveillance Court, collection directed at identified categories of foreign intelligence targets, without the need for a court order for each individual subject. This ensures that the government has the flexibility and agility it needs to identify and to respond to terrorist and other foreign threats to our security. But the government may not use this authority intentionally to target a U.S. person, here or abroad, or anyone known to be in the United States.”
Nor can promising to imprison people without a fair trial justify murdering people. But Holder does not do that. He promises kangaroo courts:
“Much has been made of the distinction between our federal civilian courts and revised military commissions. The reality is that both incorporate fundamental due process and other protections that are essential to the effective administration of justice – and we should not deprive ourselves of any tool in our fight against al Qaeda.”
Why is This Foe of Justice Working for Obama?
Even though al Qaeda cannot be underestimated! Most legal observers do not take this seriously for a minute. Here’s 2008 presidential candidate Barack Obama: “As president, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists … Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.” Go Team!
Holder then explains, sensibly enough, why non-military courts work just fine (unless an extreme record of nearly 100% convictions worries you):
“Simply put, since 9/11, hundreds of individuals have been convicted of terrorism or terrorism-related offenses in Article III courts and are now serving long sentences in federal prison. Not one has ever escaped custody. No judicial district has suffered any kind of retaliatory attack.”
But he returns immediately to defending courts that lack basic protections, claims those protections have now been put in place, and asserts that military commissions have been successfully reformed. Among those who have not been convinced is the former chief prosecutor of the military commissions at Guantanamo, Col. Morris Davis who said in November: “a decision to use both legal settings is a mistake. It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantanamo and justice are mutually exclusive.” Of course the question of how bad military commissions are also does nothing to advance a case for legal murder.
How About NDAA?
Holder turns next to the presidential power to imprison people that was signed into law on New Year’s Eve as part of the National “Defense” Authorization Act:
“This Administration has worked in other areas as well to ensure that counterterrorism professionals have the flexibility that they need to fulfill their critical responsibilities without diverging from our laws and our values. Last week brought the most recent step, when the President issued procedures under the National Defense Authorization Act. This legislation, which Congress passed in December, mandated that a narrow category of al Qaeda terrorist suspects be placed in temporary military custody.”
This legislation did nothing of the sort. For one thing, Obama unconstitutionally altered it in a signing statement as it applied to a huge prison full of largely non-al Qaeda prisoners in Afghanistan. In addition, there has been quite a bit of discussion of the power this bill creates to imprison U.S. citizens. The State of Virginia has forbidden state employees from assisting with that. Senator Diane Feinstein has introduced a bill to undo it. And, despite tremendous, often willful, confusion, the history is clear that Obama insisted on the power to imprison U.S. citizens and to do so outside of the military.
Three quarters of the way through a speech on the legality of murdering people, Holder begins to approach that touchy topic. Here is what he says:
“Now, I realize I have gone into considerable detail about tools we use to identify suspected terrorists and to bring captured terrorists to justice. It is preferable to capture suspected terrorists where feasible – among other reasons, so that we can gather valuable intelligence from them – but we must also recognize that there are instances where our government has the clear authority