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Monday, March 5, 2012

Eric Through the Looking Glass

We were stuck outside while Eric Holder addressed a group of Northwestern Law students and others this afternoon. We could catch glimpses, through the dark glass of the building lobby, of the crowd filing in to the Thorne Auditorium to hear the speech.

Afterward one audience member summed up the speech as he left:
"He pretty much said he can kill anyone he wants."
Any questions?


U.S. Attorney General Eric Holder


Yes, yes, of course you want to hear the specifics. I must warn you, however, that you are insisting on hearing something that will turn you more topsy-turvy than anything Alice experienced when she ventured through the looking glass.

Here then are some excerpts, together with my commentary, from the posted version of Holder's speech.

Holder launches genteelly into the subject of assassinating people (including through the use of drones):

"An individual’s interest in making sure that the government does not target him erroneously could not be more significant."

He then proceeds to say exactly NOTHING about how an individual might protect that interest of his/hers. For instance, can the individual expect the courts to protect that interest?

"Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process."

Okay, silly question. So perhaps Congress is where the individual will find his/her interest protected?

"That is not to say that the Executive Branch has – or should ever have – the ability to target any such individuals without robust oversight. Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens."

Why do I get the feeling that the august oversight being described would be of the kind that happens months -- if not years -- after the individual in question has been incinerated in a drone strike?

Well, at least the individual can expect the protection of an ironclad standard of proof on the part of the Executive Branch, right? Holder identifies six criteria for assassinating -- sorry, killing -- an American citizen:

"[A]n operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles."

Now that's all very nice, except that the only criterion named by Holder that can be determined with any degree of objectivity is the first one, i.e. whether or not the U.S. citizen in question is in the U.S. or in a foreign country. What is the objective basis for determining if someone is an operational leader of al Qaeada? In fact, what criteria are there of any kind, beyond the testimony of people being held in some form of indefinite detention and without legal protections by the United States government or its proxies? What is the objective basis for demonstrating that someone poses an imminent threat? What evidence of this type has ever been produced? What is the objective basis for determining that "capture is not feasible"? (I wonder how domestic police operations would look if police commanders were permitted to make findings that "capture is not feasible"!) And, just to be clear, are we talking about making the U.S. government subject to the laws of war? i.e. international law, such as the Geneva Conventions? Or are we only talking about the "principles" associated with the law of war (?) ... and then only those Eric Holder deems "applicable"?

"An individual’s interest in making sure that the government does not target him erroneously could not be more significant." Really? Really, Eric Holder? On the contrary, it sounds to me as if your concern for the miscarriage of justice via the extrajudicial executions you carry out can be boiled down to four words:


OFF WITH HER HEAD!

But don't just take my word for it: read the whole speech -- if, that is, you're not afraid to see how deep the rabbit hole goes . . . !


Related posts

If the public will join us in asking the question "Who decides?" about drone executions, I believe they will rapidly come to realize that they are utterly dissatisfied with what the government is saying.

(See Who Decides? (When Drones are Judge, Jury, and Executioner) )











The story of the past decade-plus has been the story of the assertion by some that the conception of law that our society has is not sufficient.  Simply put, there are those who say that there is a third, "in-between" category of behavior -- and legal status -- that is not civilian (subject to criminal law) and not military (subject to military law and the laws of war). And since there are no rules about how to deal with that third category . . . .

(See Using the Good, Old Criminal Justice System: Worth a Try?)




The crime of Extrajudicial Execution is described on the website for Mike Haas' book, George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes. Here, we will look at the specific legal basis for charging perpetrators as war criminals for Extrajudicial Executions, and list sources reporting relevant U.S. actions in Afghanistan.

(See VAU Afgh 101: Extrajudicial Executions )


Here, we will look at the specific legal basis for charging perpetrators as war criminals for Failure of Commanding Officers to Ensure That Subordinates Understand Geneva Convention Obligations Regarding the Conduct of Warfare, and list sources reporting relevant U.S. actions in Afghanistan.

(See VAU Afgh 101: Geneva Convention Obligations )












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Holder photo: NPR
Illustration of the Red Queen: Curiouser and Curiouser: The Evolution of Alice

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