Blog Ipsa Loquitur

Published on under Well They Sound Harmless

Recommended reading: Jeffrey Goldberg’s 20,000-word novella on President Obama’s foreign policy in The Atlantic. We’re in the final year of Obama’s presidency, so a lot of this isn’t really news, but there are still plenty of great quotes from his advisors on thought processes and sausage making. For example, you know America didn’t fight a ground war in Libya, and we’re even more hands-off in Syria. What differentiates those theaters, and how that affected the president’s decision, isn’t always clear from daily reporting. And then there are the drones:

This is one of the larger ironies of the Obama presidency: He has relentlessly questioned the efficacy of force, but he has also become the most successful terrorist-hunter in the history of the presidency, one who will hand to his successor a set of tools an accomplished assassin would envy. “He applies different standards to direct threats to the U.S.,” Ben Rhodes says. “For instance, despite his misgivings about Syria, he has not had a second thought about drones.” Some critics argue he should have had a few second thoughts about what they see as the overuse of drones. But John Brennan, Obama’s CIA director, told me recently that he and the president “have similar views. One of them is that sometimes you have to take a life to save even more lives. We have a similar view of just-war theory. The president requires near-certainty of no collateral damage. But if he believes it is necessary to act, he doesn’t hesitate.”

If anything, that paragraph understates the extent to which America has a swarm of flying murder bots. The president can and has ordered the death by remote control of thousands of foreign nationals and even a handful of American citizens. Suffice to say, the Constitution is completely silent on the issue of presidential robot death squads, flying or otherwise. But killing American citizens without due process is absolutely unconstitutional. That begs the question, though: have you ever wondered what due process means?

cool because this is a law blog

You can probably think of process as the stuff that happens during the run-up to the trial, during the trial, and then at the appeal. Your lawyer versus the government’s lawyer. Motion to do X, hearing on Y. Judge rules on this, jury finds that. There are so many moving and interlocking pieces—prejudicial evidence gets excluded, witnesses got cross-examined, etc—that even if some mistakes are made, things will balance out in the end. Overall, the legal process gets it right.

President Obama, a former constitutional law professor, would be the first to explain that the process someone is due under the Constitution can depend on the circumstances. For example, it violates due process to execute someone who has only been accused of a crime. But if that person points a gun at a police officer, they’re suddenly due a whole lot less process while the officer’s life is in danger.

White House lawyers wrote a memo explaining how much due process you have if you’re accused of being a terrorist, but you haven’t been tried or convicted, and if you’re in a foreign country. The relevant part of that memo starts on page 38, although you’ll note much of the discussion has been redacted. Secret logic for killing American citizens isn’t a great look, to say the least.

The memo comes down to ‘just like a police officer can kill a suspect without a trial, flying murder bots can kill American-citizen terrorists without a trial.’ There are some impressive legal phrases trotted out to frame this, like “continued and imminent threat of violence or death” to (other) American citizens, and the “highest officials in the Intelligence Community” having reviewed the facts behind the kill order. Additionally, the White House needs to show that capture is “infeasible,” but that the CIA and Department of Defense are “continually monitoring” whether the circumstances have changed so a capture would be feasible.

There’s also this odd bit about “the realities of combat” and “the weight of the government’s interest in using authorized lethal force,” and I don’t really understand the legal implications of either of those. Not to be overly reductive, but the former is essentially “hey, shit happens” and the latter boils down to “it’s important that this look official.”

Remember a few paragraphs ago, that bit where I said that the legal process was built to have a lot of moving pieces, so errors in one direction can balance out errors in another? At a certain point in this memo, it feels like the lawyers kept adding these legal standards—like the “realities of combat” test, or the “infeasible capture” test—to make the process feel as deliberative and complex as the judicial process.

It’s a tough sell, because there are other important parts to due process; the government is zealously advocating one way while the defendant’s lawyer is pushing the other way and a judge makes sure both sides follow the rules. It’s not enough to just have parts that can move. Your car’s transmission has parts that can move, but you’re going to be late for work if the gears are all laid out randomly.

my favorite part

The Atlantic article doesn’t quite go into these legal fine points. Again, at only 20,000 words, there just wasn’t enough time to squeeze in everything. But there are definitely a number of gems here:

Those who speak with Obama about jihadist thought say that he possesses a no-illusions understanding of the forces that drive apocalyptic violence among radical Muslims, but he has been careful about articulating that publicly, out of concern that he will exacerbate anti-Muslim xenophobia. He has a tragic realist’s understanding of sin, cowardice, and corruption, and a Hobbesian appreciation of how fear shapes human behavior. And yet he consistently, and with apparent sincerity, professes optimism that the world is bending toward justice. He is, in a way, a Hobbesian optimist.

A Hobbesian optimist! It’s a delightful turn of phrase that reminds me of one of my favorite quotes: “the test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function.” Optimists who think that humans are built to war against each other forever? Classic!

In all seriousness, I think Hobbes’s point is that the world bends toward justice because the Leviathan sits on the bad guys until they stop being bad guys. That’s an intrinsically optimistic worldview, because the bad guys stop being bad guys and get day jobs. It makes sense for President Obama to think this way: he’s the guy whose job is basically “Leviathan of all Leviathans.” If he thinks the world is bending toward justice, that means he’s confident that he’s doing enough bending.