No Comment — March 8, 2012, 12:07 pm

Holder Dances the Assassination Tango

On Monday afternoon, Attorney General Eric Holder appeared before law students and faculty at Northwestern University in Chicago to deliver a speech widely billed as a definitive statement about the law governing drone warfare. The speech had been anticipated for some time, thanks in part to Charlie Savage of the New York Times, who revealed in October the existence of a nearly fifty-page memorandum that David Barron and Martin Lederman, two academics then in the Justice Department’s Office of Legal Counsel, had prepared justifying a White House decision to kill Anwar al-Awlaki, an American citizen who resided in Yemen.

The memo reportedly concluded that the president had the authority to order the killing of a citizen in certain circumstances, and it provided legal rules to guide future action. Many people demanded publication of the OLC memo, and it seems that some in the Obama Administration—which arrived in Washington having pledged to publish just these types of legal analyses—supported these calls. But the intelligence community, jealously guarding its turf, pushed back aggressively. Daniel Klaidman of Newsweek later reported that the forces of secrecy were winning out, and that a proposed speech by Holder had been neutered.

It turns out that Klaidman was essentially right. The Holder speech offered hardly any information that had not been previously reported. Indeed, as a discussion of legal policy, it was muddled and sometimes just plain wrong, perhaps owing to a desire on the part of Holder’s speechwriters to play to a political audience. A good demonstration of this comes in this paragraph immediately following Holder’s description of the Abbottabad raid that resulted in the death of Osama bin Laden:

Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful—and therefore would not violate the Executive Order banning assassination or criminal statutes.

Holder is wrong here, and misleading. It’s certainly not true, as a historical matter, that “assassinations are unlawful killings.” Assassinations are politically motivated killings, including killings to advance the interests of a state (raison d’état). The practice of tyrannicide—the bold strike by citizens against those who usurp a democracy—was expressly made legal and rewarded in antiquity. Assassins were venerated, and the act of assassination is part of the iconography of the era—preserved, for instance, in the state seal of Virginia. It remained an important tool later on: Catherine de' Medici ordered the killing of Protestant leaders on St. Bartholomew’s Day in 1572. The United States took down the plane carrying Admiral Isoroku Yamamoto in 1943. These acts raised legal, moral and ethical issues, but it would be naive and simplistic to say they were “unlawful.”

Holder was referring specifically to Executive Order 13222, issued by President Ronald Reagan in 1981, which says, “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” But as with so much U.S. national-security legislation, this order turns out to be far less than meets the eye. Simplified, the present law of EO 13222 could be summarized this way: “No one shall be assassinated—unless the president authorizes it, in which case we will refrain from calling it an assassination.”

Assassination has distasteful connotations, yet it is implicit in the killing of Anwar al-Awlaki and the evolution of drone technology generally. In theory, at least, drones provide an opportunity to strike distant spots with precision, and with no risk of American casualties. In sum, they offer an opportunity to carry out assassinations—in deference to Holder, we can call them “targeted killings”—of carefully selected individuals on a wide scale and at little cost. Almost all Americans would agree that under some circumstances, the use of this technology is appropriate. But what are the guidelines, and who makes the decisions? These are important questions, because drones are becoming central to America’s security strategy, indeed redefining how we fight our enemies. And because America’s exclusive control of this weaponry is fading, drones will redefine the world in which we live.

Holder’s speech gave us some idea of the rules, but it was muddled on some key points. He said, for instance, that the rationale of the Supreme Court’s ruling in Mathews v. Eldridge applies, but he misstated the rule of the case by omitting one of its key factors: that the procedure the government follows has to avoid errors. This is not a trivial or technical point. One may very well argue that the president has the power to authorize such killings and still be concerned about the procedure he uses to pick his targets and authorize strikes. Indeed, the relatively large number of innocent victims killed in the strikes, and the number of cases in which the U.S. has relied on false information for its targeting, suggest that the current process accepts too much error. Holder also notes a prominent role for “immediate” threat, but the details of the al-Awlaki case show that Holder doesn’t use “immediate” the way most English speakers would.

Holder also failed to address the details of process. Who is making the decisions, and what specific authority have they been granted? It’s fairly clear that beginning in 2002, the White House was routinely reviewing and approving requests from the CIA and JSOC for targeted killings. The available evidence places Vice President Dick Cheney at the center of this process, and directly implicates members of his staff. President Obama seems to have picked up on Cheney’s procedures, with some modifications.

“This is an indicator of our times,” said Holder, “not a departure from our laws and our values.” That is the issue to be tested. At present, far too much remains secret to allow for meaningful assessment, but drones are clearly causing a thorough reformulation of tactics and strategies, and even a reconfiguration of the relationship between the intelligence community and the military. All of this is happening behind a curtain, with minimal public knowledge or input. Holder’s speech served mainly to highlight the many questions that remain to be answered. Some are likely addressed in the still-secret OLC memo. If America is truly sticking to her laws and values, then she should have no difficulty exposing her policies to public scrutiny.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 167 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

November 2017

Preaching to The Choir

= Subscribers only.
Sign in here.
Subscribe here.

Monumental Error

= Subscribers only.
Sign in here.
Subscribe here.

Star Search

= Subscribers only.
Sign in here.
Subscribe here.

Pushing the Limit

= Subscribers only.
Sign in here.
Subscribe here.

Bumpy Ride

Bad Dog

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Pushing the Limit·

= Subscribers only.
Sign in here.
Subscribe here.

In the early Eighties, Andy King, the coach of the Seawolves, a swim club in Danville, California, instructed Debra Denithorne, aged twelve, to do doubles — to practice in the morning and the afternoon. King told Denithorne’s parents that he saw in her the potential to receive a college scholarship, and even to compete in the Olympics. Tall swimmers have an advantage in the water, and by the time Denithorne turned thirteen, she was five foot eight. She dropped soccer and a religious group to spend more time at the pool.

Illustration by Shonagh Rae
Article
Star Search·

= Subscribers only.
Sign in here.
Subscribe here.

On December 3, 2016, less than a month after Donald Trump was elected president, Amanda Litman sat alone on the porch of a bungalow in Costa Rica, thinking about the future of the Democratic Party. As Hillary Clinton’s director of email marketing, Litman raised $180 million and recruited 500,000 volunteers over the course of the campaign. She had arrived at the Javits Center on Election Night, arms full of cheap beer for the campaign staff, minutes before the pundits on TV announced that Clinton had lost Wisconsin. Later that night, on her cab ride home to Brooklyn, Litman asked the driver to pull over so she could throw up.

Illustration by Taylor Callery
Article
Monumental Error·

= Subscribers only.
Sign in here.
Subscribe here.

In 1899, the art critic Layton Crippen complained in the New York Times that private donors and committees had been permitted to run amok, erecting all across the city a large number of “painfully ugly monuments.” The very worst statues had been dumped in Central Park. “The sculptures go as far toward spoiling the Park as it is possible to spoil it,” he wrote. Even worse, he lamented, no organization had “power of removal” to correct the damage that was being done.

Illustration by Steve Brodner
Article
Bumpy Ride·

= Subscribers only.
Sign in here.
Subscribe here.

One sunny winter afternoon in western Michigan, I took a ride with Leon Slater, a slight sixty-four-year-old man with a neatly trimmed white beard and intense eyes behind his spectacles. He wore a faded blue baseball cap, so formed to his head that it seemed he slept with it on. Brickyard Road, the street in front of Slater’s home, was a mess of soupy dirt and water-filled craters. The muffler of his mud-splattered maroon pickup was loose, and exhaust fumes choked the cab. He gripped the wheel with hands leathery not from age but from decades moving earth with big machines for a living. What followed was a tooth-jarring tour of Muskegon County’s rural roads, which looked as though they’d been carpet-bombed.

Photograph by David Emitt Adams
Article
Bad Dog·

= Subscribers only.
Sign in here.
Subscribe here.

Abby was a breech birth but in the thirty-one years since then most everything has been pretty smooth. Sweet kid, not a lot of trouble. None of them were. Jack and Stevie set a good example, and she followed. Top grades, all the way through. Got on well with others but took her share of meanness here and there, so she stayed thoughtful and kind. There were a few curfew or partying things and some boys before she was ready, and there was one time on a school trip to Chicago that she and some other kids got caught smoking crack cocaine, but that was so weird it almost proved the rule. No big hiccups, master’s in ecology, good state job that lets her do half time but keep benefits while Rose is little.

Illustration by Katherine Streeter

Number of cast members of the movie Predator who have run for governor:

3

A Georgia Tech engineer created software that endows unmanned aerial drones with a sense of guilt.

Roy Moore, a 70-year-old lawyer and Republican candidate for the US Senate who once accidentally stabbed himself with a murder weapon while prosecuting a case in an Alabama courtroom, was accused of having sexually assaulted two women, Leigh Corfman and Beverly Young Nelson, while he was an assistant district attorney in his thirties and they were 14 and 16 years old, respectively.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Report — From the June 2013 issue

How to Make Your Own AR-15

= Subscribers only.
Sign in here.
Subscribe here.

By

"Gun owners have long been the hypochondriacs of American politics. Over the past twenty years, the gun-rights movement has won just about every battle it has fought; states have passed at least a hundred laws loosening gun restrictions since President Obama took office. Yet the National Rifle Association has continued to insist that government confiscation of privately owned firearms is nigh. The NRA’s alarmism helped maintain an active membership, but the strategy was risky: sooner or later, gun guys might have realized that they’d been had. Then came the shootings at a movie theater in Aurora, Colorado, and at Sandy Hook Elementary School in Newtown, Connecticut, followed swiftly by the nightmare the NRA had been promising for decades: a dedicated push at every level of government for new gun laws. The gun-rights movement was now that most insufferable of species: a hypochondriac taken suddenly, seriously ill."

Subscribe Today