Attorney General Eric Holder  made the pitch on behalf of the administration that we should trust President Obama to exercise the utmost care before executing Americans without trial or conviction.  This didn’t fly when Nixon was president, but then, Holder was smart enough not to invoke that particular ghost.

Since this country’s earliest days, the American people have risen to this challenge – and all that it demands.   But, as we have seen – and as President John F. Kennedy may have described best – “In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger.”

 

Half a century has passed since those words were spoken, but our nation today confronts grave national security threats that demand our constant attention and steadfast commitment.   It is clear that, once again, we have reached an “hour of danger.”  

 

We are a nation at war.  And, in this war, we face a nimble and determined enemy that cannot be underestimated.

Scary stuff. Scary enough to follow up with this.

It is preferable to capture suspected terrorists where feasible – among other reasons, so that we can gather valuable intelligence from them – but we must also recognize that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.

***

Our legal authority is not limited to the battlefields in Afghanistan.   Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.   We are at war with a stateless enemy, prone to shifting operations from country to country.

***

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.

The distinction is a fine one. When the president deems it necessary, it’s not an assassination. That would be unlawful.  But when the target of “lethal force” is someone who presents an “imminent threat of violent force,” it’s entirely different. A good killing.

Lawyers like to take ideas to their logical extreme. It’s a game we play to see whether the rationale holds up to scale, because experience shows that once authority is taken to kill people without trial or conviction because we call them terrorists in our War on Terror, it’s just a baby steps to apply it to our other wars.

To be clear, the use of the word “war” as a rhetorical trick has been around for a while.  In the 60s, we had a war on poverty.  Fortunately, the poor weren’t shot.  We’ve since had war on drugs, war on crime, now war on terror.  The beauty of calling an initiative a war is that it causes pride to swell in the hearts of patriots.  As on part of the body grows larger, it tends to edge out space for another. In this case, the losing body part is usually the brain.

There is a real thing called “war.”  It’s where sovereign nations, with armies and armaments, decided that the best way to address their respective might was on a battlefield. You knew who the enemy was, and there was a natural beginning and end, when one mighty army defeated the other mighty army.  Then it was over and we all went back to whatever we were doing before, with the exception of returning soldiers who were given a parade before they were ignored and forgotten.

The problem with our loosey-goosey use of “war” is that it fails to comport with the definition that allows us to bring it to an end.  If the only criterion was the number of Americans killed, we would be fighting the war on automobiles rather than bailing them out of their financial woes. It’s way too easy to add the words “war on” before a perceived evil and thereupon invoke the power of the executive to fix the problem with extreme prejudice.

GW Lawprof  Jonathan Turley wrote a good op-ed about AG Holder’s speech.

Holder became highly cryptic in his assurance that caution would be used in exercising this power — suggesting some limitation that is both indefinable and unreviewable. He promised that the administration would kill Americans only with “the consent of the nation involved or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.” He did not explain how the nation in question would consent or how a determination would be made that it is “unable or unwilling to deal” with the threat.

There is no shortage of threats to our American way of life, though we tend to exclude those threats that could conceivably put us in the firing line.  If the only limitation is that the evil in the Government’s crosshairs is one with popular approval, then pretty much any “war on” will do. It’s a very effective publicity stunt, much like Reefer Madness was in its day.  With a catchy phrase and perhaps a decent theme song, it’s not particularly  hard to get the nation to back up the President on who we should hate today, who is destroying the fabric of our society.

So today it’s President Obama with his finger on the trigger. And today it’s the operational leaders of Al Qaeda, who everybody knows are terrible, evil people bent on destroying our nation.  Who doesn’t want them gone?

And tomorrow, there will be someone else with his finger on the trigger. And tomorrow, there will be someone else in the crosshairs. And if the Government has the authority to kill whoever it deems undesirable today, it will have the same authority to do so tomorrow. But then, what do you care? You won’t be the enemy of our nation.  Right, Pogo?