Wednesday, February 6, 2013

Killing American Al Qaeda – A Justice Department White Paper

Sanka freeze dried version will involve a not-so freeze dried analogy:

Scenario 1:

Imagine there is a “no go” zone (NGZ) of some city, which over time, police have found very dangerous to impossible to patrol. Armed drug gangs run the area, and also plan and carry out attacks on civilian and governmental targets in other parts of that city, as well as surrounding areas, and nearby towns and cities. The armed gangs have amassed quite a quasi-military force, both collectively and severally. Retaking the area would be an operation akin to warfare. In lieu of engaging in war in the NGZ, the local police force has resorted to using armed remotely piloted aircraft. Using these, they gain detailed knowledge about the movements of the operational leaders of the drug gangs and begin to take them out using those aircraft. They also take out people engaged in operations. The local government does not, (because it cannot) capture and try these leaders. Capture is very unlikely, and also likely to cause unacceptable levels of collateral damage amongst the innocent civilians of the NGZ. Instead, the government makes painstaking efforts to confirm that the targets are involved in an ongoing basis in the planning and/or attack phases of the gangs’ operations against civilian targets. When the evidence reaches a high level, the lethal operations are undertaken on the orders of the mayor of the city.

 Assume this is all this is going on in the United States. Assume there is no other recourse for the city fathers. They cannot call in the National Guard or military forces. It doesn’t matter how you fill in the details or explanations as to why they cannot, but this is what is going on.  Say the city we are discussion is Minneapolis; the Twin Cities gone bad.  Is anything about this drone strike program ethically problematic?  Should we fret that it is killing U.S. citizens without due process, which is guaranteed by the Constitution?

In simpler scenarios it is already the case that police can use summary lethal force against citizens to protect lives, that is; they are allowed to do so sans due process.  When the threat is real and immanent, and the prospects for capture are remote, or too costly in lives of innocents or officers, police are morally permitted and legally allowed, to summarily use lethal force on American citizens. Snipers taking out a person who has taken a school, killed people and is holding others hostage would be an example. Police snipers shooting that man during his shooting spree would be another obvious one.

Second scenario:

Much like the first, but now the NG Zones are located in foreign states, the U.S. citizens involved are members of Al Qaeda or other such groups, and have been for some time. They are operational members, planning and/or carrying out attacks on U.S. citizens in various parts of the world. Also, assume that a system is in place much like that which is incorporated in the Twin Cities gone bad scenario, where the CIC is now the ‘mayor,’ the person who ultimately makes the call on whether to take out targets. A similarly high level of care is used by the DOJ, CIA and the military in making the case for inclusion of individuals on the kill list, as is used in Minneapolis by the police force and the Mayor.

In that circumstance are these individuals any more entitled to stand trial than the drug gang members in Minneapolis gone bad?  The answer to that question, according to this MEMO or ‘white paper’ from DOJ is “no.” If a reasonable case can be made that taking these people out will prevent future attacks, then the strikes can go on, provided there is no other feasible route to removing them from their roles in the terrorist organizations (such as capture). When capture is not feasible, then obviously, trial by jury is not possible. A defendant must be able to attend that trial.

But, wait a minute: Shouldn’t we have trials in absentia for folks such as this?  Perhaps, but only if they are no longer operationally involved in the belligerent organization, and still immune from capture, I would suggest. If the person has retired to the AQ Swiss Chalet, and is living the good life, we have the luxury of the trial (though I’m not at all sure that we owe it to him). Why? Because such trials, to be fair, will need to be lengthy, thus affording the target more time to live. In his retired state, he won’t be doing any planning or attacking. There is no significant change in threat level caused by his continuing to live. So, we can have our trial. After that trial, the lethal aircraft can deal justice. The wait poses no jeopardy to the lives of citizens.

However, if the hostile U.S. citizen still remains operational, the government’s over-riding obligation is to the safety of citizens threatened by this person’s actions. It cannot, and should not afford him any more time to undertake his lethal actions, which is precisely what it would be doing by undertaking a lengthy trial in absentia.  The state, in this scenario, is like the snipers in the school scenario mentioned above. It can and should take him out summarily. Therein lays its primary obligation.

That’s the gist of this Justice Department white paper, filled out, of course with a great deal of references to international law, LOAC and constitutional law. Fascinating reading. My reaction? I had no more problem with Bush era anti-terror programs than I do with this.  

Exit question: If, as is stated in the paper, the government has an obligation to prevent future attacks, and removing such folks from this mortal coil is one way to do so (when capture is not possible), does it not also follow by parity of reasoning, when capture IS possible, and it is also possible to extract information from captured belligerents that will effectively increase the number of lives protected or saved due to thwarting of plots, does it not follow, I repeat, that there is an obligation to hold on to these people and extract that information?