Kill Lists: The Neo-Warrior's View
Of course, there are always others who see it differently. Unsurprisingly, one of those "others" is John Yoo, of the DOJ torture memo fame. Via Jack Goldsmith at Lawfare, Yoo has offered his views at the Wall Street Journal.
Not only are the complaints of a wholesale lack of due process misguided, but the real problem is that we're even uttering the words "due process" at all. Not for the benefit of terrorists, Yoo argues, but because affording rights to military enemies "risks stretching those protections a mile wide and an inch deep—weakening them for all Americans."
The real story revealed by the memo is that the Obama administration is trying to dilute the normal practice of war with law-enforcement methods. Its approach reflects the mind-set of an administration populated with officials who spent the Bush years decrying military methods then employed and are now trying to impose a weaker law-enforcement approach to combating terrorism. . . .
The memo shows that for the first time in the history of American arms, presidential advisers will weigh the due-process rights of enemy combatants on the battlefield against the government’s interests, judge an individual’s “imminent” threat of violence, and ponder whether capture is feasible before deciding to strike. Under these provisions, the U.S. military’s speed and decisiveness will suffer, even as the intelligence needed to identify drone targets dries up with the withdrawals from Iraq and now Afghanistan.
The memo even suggests that American al Qaeda leaders such as Anwar al-Awlaki (killed in a 2011 drone strike in Yemen) enjoy due-process rights. But in doing so, it dissipates the rights of the law-abiding at home.
And lest you think it's only the torture-loving Yoo who sees things in black and white, the New York Times Room for Debate covered the issue, and found others, like Pepperdine lawprof Gregory McNeal, who agree with Yoo.
Military targets — whether persons or objects — are simply not an appropriate subject for judicial review, and this is a good thing.
The Constitution, McNeal contends, isn't offended when we kill our military enemies, and whose passport they carry doesn't change the threat.
What appears to give rise to these polar views isn't a different view of the constitutional command for due process, but rather a problem with the definition of a military enemy. As the government uses the word "war" as a rhetorical device, it's meaning has been diminished for some and embraced by others. This problem was clear long ago, when former Attorney General John Ashcroft explained life to us dopes:
Apparently, this is all a matter of how we define "war", and who our enemies might be. Sure, the phrase "war on terrorism" has become ubiquitous in public discourse, but it's just a phrase designed to capture a sense of gravity. It's not literal. At least I thought it wasn't. Ashcroft thinks otherwise.
There is no comparison with the "war" Ashcroft speaks about. Some will argue that the soldiers in a jihad don't wear uniforms, so it's foolish to argue that the lack of a uniform makes them immune from being prisoners of war. But this returns us to the question of whether this is a war, or something else. Terrorists don't wear uniforms. Terrorists don't serve a country. Terrorists don't fit neatly within the confines of our historic understanding of war.
This rationale, that anything we chose to call a war thus becomes one, shows a fundamental rift in our American psyche. We want to be protected from international terrorism, but can't find a pigeonhole to fit it so that it neatly fits within any recognized paradigm that tells us how to address it.
That was written four years ago. If the lie is perpetuated long enough, it becomes real. Clearly, it's very real to John Yoo, as it is to others. By embracing the rhetoric of "war," it all makes sense. Obviously, judges play no role on the battlefield. Clearly, our Constitution doesn't dictate who dies in battle. But that requires us to view the world as a battlefield, from Des Moines to Kabul.
The problem with blurring definitions is that you end up with blurred definitions. When Timothy McVeigh bombed the Murrah Couthouse, it wasn't a declaration of war, but an act of a deadly madman. When the Twin Towers came down, it was different because they weren't from here. The rhetoric changed. War was declared. Americans rallied against a vague group called "Islamic terrorists" who represented no sovereign and wore no uniform. Rather than consider whether this undermined the definition of war, our frenzy and anger seized control and we let the lines blur.
More than a decade later, we are paying the price for ignoring Orwell. There will be many Americans for whom the rhetorical device of "war" remains sufficiently convincing to answer the question of whether our President is engaged in the killing of Americans without due process or whether he is fulfilling his constitutional duty to protect us against an aggressor who would destroy our nation.
Soon after the atom bombs were dropped on Hiroshima and Nagasaki, the Empire of Japan unconditionally surrendered to the United States of America. On September 2, 1945, a delegation, both in uniform and in the daytime formal wear of diplomats, signed the treaty.
This delegation represented the sovereign against whom America fought and for whom their soldiers died. They had the authority to end the war. Who would John Yoo look to if his enemy combatants decided to surrender? No one speaks for those who hate America. They wear no uniforms. They have no diplomats. They represent no nation. So who, if Yoo has his way and we characterize this as neo-war and the world as the battlefield, would unconditionally surrender if we win?
If there is no one to surrender, there can be no war, because our enemies can never be known and the hostilities can never end. Maybe it isn't the same as crime, but it also isn't the same as war. But when the targets of our drones to be killed because the President says so are our own people, we cross a line should never be blurred. And that's why due process matters before the American government can kill Americans.