The War on Terror has always been antagonistic to law. There was no time to build or follow a coherent legal framework when everybody could die at any moment all the time. Hell, securing a warrant can take upwards of ten minutes. In ten minutes, everybody could be dead, everywhere, perhaps forever. So we invaded countries on fabricated evidence and we tried suspects in kangaroo courts on evidence elicited by torture. We had to because we were afraid.
History is full of overreactions and bad judgments that are corrected with time, or at least condemned in hindsight. But the US government doubled down on the secrecy and the extra-judicial violence. And now the Obama administration wants to legalize murder.
Let’s back up. On Monday, Attorney General Eric Holder delivered a speech at Northwestern Law School to formally defend the War on Terror, arguing that we can, should, and will follow these practices in the future. Of course, Holder is silent on the issue of torture. Apparently, that page has turned.
Instead, Holder focused first on the recent killing of the American citizens Anwar al-Awlaki and his 16-year-old son, Abdulrahman al-Awlaki, by CIA-operated drones in Yemen. Holder offered these killings as a model for future US policy. His justification is simple: We are at war with al Qaeda and those we deem members of al Qaeda are soldiers. And we fight these soldiers on a global battlefield, so we have the right to kill them anywhere. Holder assured his audience that this policy follows the letter of international law—a claim that’s arguable at best.
But far more important are Holder’s arguments about the controversial practice of preemptive self-defense. In theory, preemptive self-defense is Country A attacking a column of Country B’s tanks just before they cross the border into Country A. In practice, preemptive self-defense is invading Iraq because of an aluminum tube.
But preemptive self-defense has nothing to do with the invasion of Afghanistan, which was authorized by the UN Security Council. The only thing we’ve done in the past ten years on the basis of preemptive self-defense is invade Iraq. And the reasons for doing that were famously manufactured and the cause of the war is beyond rehabilitation.
Holder doesn’t even make a persuasive case for preemptive war, and his sole legal justification is that the Constitution allows for it. This is technically correct, because the Constitution has absolutely nothing to do with preemptive self-defense. He may as well cite the Uniform Commercial Code. A lawyer of Holder’s skill and education making a legal argument this bad to a room full of law students and professors is surreal.
Holder makes clear that he isn’t just trying to justify past or current misconduct. He wants to lay the groundwork for future wars and assassinations, and makes arguments as though it were September 12, 2001. He warns that America is in an “hour of danger,” and makes sweeping references to the innumerable—and unspecified—threats we’ll face in the future. Holder wants us to be afraid indefinitely.
All of this fear mongering is offered without a shred of evidence, without reference to any plot or person or group. And on the basis of a great, terrifying nothing, he wants to take the extraordinary step of applying the doctrine of preemptive self-defense against civilians.
It will only take a short deployment to kill these civilians, by drone or otherwise. The President can order short military deployments without congressional approval. And it goes without saying that Holder sees no place for courts and judges in this new system.
He is careful to note that “due process” does not necessarily mean “judicial process.” But it’s unclear what “due process” could even mean in this context, for the Obama administration policy allows for no hearing, no record, and no public oversight. Eric Holder, Attorney General of the United States of America, thinks the government has the power and authority to kill American citizens without anything that could possibly amount to due process as it’s currently understood. We have more stringent procedures when the state revokes a driver’s license.
We invaded a country on the basis of preemptive self-defense, citing remarkably dubious evidence. There’s no telling what level of proof Holder will deem sufficient to have individuals killed. Worst of all, he has the gall to argue not only that the United States Constitution is the source of that dystopian power, but that the Constitution somehow requires a system where the President has the unchecked power to declare US citizens enemies of the state and have them killed. He wants us to accept this. Apparently, we have to because we will be afraid forever.