Due Process and Drone Strikes

Micah Zenko, who normally does outstanding work at the Council on Foreign Relations, got a bit sloppy with his “Year in Quotes” at Foreign Policy.  Among the twenty quotes that Zenko describes as “puzzling, hypocritical, and revealing”  is the following:

4. Attorney General Eric Holder: "An individual's interest in making sure that the government does not target him erroneously could not be more significant." ("Remarks at Northwestern University School of Law," March 5, 2012.)

Holder offered this remarkable observation during a landmark speech that provided the Obama administration's justification for why U.S. citizens can be killed, and why secret Executive Branch discussions are sufficient to deprive a citizen of his Sixth Amendment right to due process.

 (emphasis mine).  While Attorney General Holder did give a speech at Northwestern’s Law School defending U.S. counterterrorism policies, his defense of the targeted killing of (presumably) Anwar al-Aulaqi did not center around the Sixth Amendment but the Fifth Amendment.  The Sixth Amendment deals with criminal procedures like trial by jury whereas the Fifth Amendment deals with Due Process. 

More importantly, Holder did not argue that “Executive Branch discussions are sufficient to deprive a citizen of his [Fifth Amendment] right to due process.”  Rather, Holder rightly argued that Fifth Amendment protections exist on a continuum that balances individual rights against the interests of the state.  That is, the amount of process owed to an individual depends on the significance of liberty the individual will be deprived of and the significance of the state’s interest in depriving the individual of that liberty.  Obviously, life is a fundamental individual interest but likewise the state’s interest in survival is paramount:

Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad.   Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.   But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.   Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.
 The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.   In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.   Where national security operations are at stake, due process takes into account the realities of combat. Here, the interests on both sides of the scale are extraordinarily weighty.   An individual’s interest in making sure that the government does not target him erroneously could not be more significant.   Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

In the case of Anwar al-Aulaqi and other U.S. citizens who are actively waging an armed conflict against the United States, Holder is asserting that state owes those individuals a fairly small amount of process compared to, say, an individual who is accused of murder. This is not terribly controversial—consider, as Holder analogizes, the case of U.S. citizens who fought for Nazi Germany during World War II or U.S. citizens who were in rebellion during the Civil War. In each of these cases, it would be preposterous to assert that it was incumbent upon the United States to single out U.S. citizens fighting in opposition to the United States, serve them with warrants, and try them for domestic law violations.  No, these citizens exhaust heavily weight the due process balancing test in favor of summary state action by taking up arms with the enemy and actively opposing the United States.

The discomfort that arises in the case of al-Aulaqi and others is that these citizens were singled out for targeted strikes. But this discomfort is misplaced—at least in Zenko’s formulation. We are not discomfited by a supposed violation of the due process clause but, rather, by the notion of targeted killings in general—a notion that we too easily conflate with assassination. 

Presidential Debate #1 Drinking Game

Tonight is the first of three presidential debates, and while everyone agrees the main event is really Uncle Joe versus Paul Ryan Hayek, your editors felt a drinking game was necessary. So without further ado, here are the drinking game rules for Presidential Debate #1.

- When Romney starts his opening statement take a shot of milk.

- When Obama starts his opening statement take two shots of Evan Williams whiskey, to compensate for Romney's sobriety and Obama is a "man of the people".

- Every time a candidate says the word "Jobs" put a nickel in your pocket. You're going to need the savings after your laid off.

- Every time stimulus is mentioned take a swig of beer and tweak your nipple

- Every time Romney has a zinger take a shot of Jaegermiester and roll your eyes

- Every time Obama or Romney says "Obamacare" lick the bar. Don't worry, you're most likely covered by insurance now.

- If you're a woman, take your free birth control pill with a cosmo chase

- Every time Salt Lake City Olympics are mentioned, enjoy a cup of hot cocoa with extra government subsidized sugar to really sweeten its success. 

- Every time Obama says Osama finish your beer.
- Every time Romney says Osama, but means Obama smash your glass over the head of the person to your right

- Every time Obama or Romney talks about their "plan" for anything, spin in place three times. When you stop and are dizzy the explanation of the plan will make perfect sense.

- Every time Romney speaks to his kinship with the one of seven states he claims to be from chug a beer from that state.

- Every time you hear the words "business" or "equity" order a glass of scotch and light a dollar bill on fire.

- Every time Romney mentions "apologizing for America," drink a Budweiser and thank God you can still have all American beer. Wait, maybe not.

- If Obama mentions Romney's taxes, returns, or rate, finish your drink and flee the bar without paying your tab.

- When the Republicans in the audience violate the rules by cheering or booing, have an old fashion and lament what could have been had this President recognized the futility of working with the GOP at the outset. 

- Anytime Obama mentions the 47% tell the barkeep to put your drinks on the government tab

- Anytime "you didn't build that" comes up yell, "Take your government hands off my Medicare!" at the top of your lungs. Take a shot of schnapps for medicinal purposes.

Finally, when the debate is over and the candidates shake hands, order a bottle of Tsing Tao because we're all going to belong to the Chinese regardless of the election.

Sovereignty and Inapt Analogies

On Wednesday, the Wall Street Journal published a stunning article detailing the interaction between the United States and Pakistan—the CIA and the ISI, really—that the United States interprets as Pakistani consent for drone strikes.  The CIA faxes a geographic description of where strikes will take place.  Pakistan does nothing—previously, the ISI would fax a response acknowledging receipt of the description.  The United States effectively equates its notice with Pakistani consent and goes forth with drone strikes.  It bear emphasis here that Pakistan does take positive steps that indicate consent, such as clearing airspace in the region described in the faxes.  That said, the question of what constitutes actual consent by one state for another state to violate the first state’s sovereignty is extraordinarily deep.  Lawfare and Brooking’s Benjamin Wittes offers this:

In many ways, the CIA here is only behaving towards Pakistan the way it behaves every day in briefing Congress on covert actions. Members of Congress listen to briefers and often stay silent so as to be able to criticize the operation if it goes bad and not be too implicated in it. The CIA, in turn, has learned to consider such silence to be the intelligence committees’ consent: The agency, after all, has given the committees the information they need to stop a program and they have not acted to do so. Here it is really treating the ISI the same way. (Never mind that the if the Pakistanis acted to stop the strikes, the U.S. would probably consider that evidence that the country was unwilling or unable to stop terrorist activity emanating from Pakistan’s soil—and consider that to be legal grounds for U.S. unilateral action on Pakistani territory.) . . .
 On the other had, there’s a long history in property rights disputes of flagrant assertions of right leading to legally recognizable claims–squatters who acquire residency rights, residents who over time acquire title, and the like. So whether implied consent has any legs is highly dependent on context.

For the moment, let us put aside the question of whether implied consent is sufficient consent for one state to authorize a violation of its sovereignty.  As noted, this is a deep question and requires, at the least, a discussion of the international community’s evolving understanding of sovereignty, and the debate between strong- and weak-sovereignty proponents—the debate that underlies the debate over R2P.

Instead, let us consider Wittes’ comparisons of supposed Pakistani permission for U.S. drone strikes to the interaction between the CIA and Congressional intelligence committees, and adverse possession.  Both comparisons are inapt and, with respect to adverse possession, Wittes clearly misunderstands its operation.

Wittes’ analogy between Congressional intelligence committees and Pakistan suggests that the CIA derives its authority to conduct operations in general from notifying Congress of an action and Congress failing to object.  But this is not correct.  The CIA’s authority to conduct operations—actually, the President’s authority to conduct covert actions—does not derive from prior notification to Congress met by Congressional silence.  Instead, the President’s authority comes from prior Congressional grant in a variety of acts including the National Security Act of 1947, as amended, and the Intelligence Authorization Act of 1991. 

Congressional notification of covert actions is an accountability mechanism but Congress’ reaction to the notification—silence or vociferous endorsements—does not change the legality of the covert action.  So long as the action satisfies the other legal requirements including a presidential finding, the notice is just that: notice.  Notice is necessary for the action to be executed but Congressional reaction—positive, negative, or neutral—is immaterial.  Congress could, of course, legislate to prevent or specifically authorize a given covert action.

In contrast, there is no supervening license to violate sovereignty in international law—with the notable exception of self-defense.  Instead, sovereignty is presumptively inviolable and international law’s overarching norm is non-interference.  So far as we know, Pakistan has not provided the United States with a broad license to violate Pakistani sovereignty.  In the absence of such a grant—and under extant international law—mere notice (acknowledged or otherwise) is insufficient.  Thus, Wittes’ Congress-Pakistan comparison is inapposite.

If Congressional silence upon notification has taught the CIA to treat silence as authorization in all situations regardless of the applicable legal regime then the CIA’s very capable lawyers have failed singularly in this instance.  That strikes me as unlikely.

Wittes’ analogy between adverse possession and authorization for drone strikes is similarly unpersuasive.  But unlike Congressional authorization contingent upon notice, which is a regime founded on actual authorization with notice acting as an accountability mechanism, adverse possession by its nature unauthorized.  Indeed, the term itself—adverse possession—suggests that it is possession without consent.  It is the process by which one person gains title to another person’s property through squatting.  But adverse possession requires hostile possession of another person’s property—once consent is given, the process of title acquisition via adverse possession is interrupted.  You see, not only does adverse possession not result in consent, consent is actually fatal to adverse possession.

While Wittes is most certainly correct that what constitutes consent is context dependent, analogies are only useful in so far as they share similar premises.  In employing these two inapt analogies, Wittes not only fails to elucidate the real issues of sovereignty implicated by U.S. drone strikes in Pakistan, he downplays—wrongly in my estimation—the serious concerns raised by the CIA’s novel practice.  

UPDATE: Greg Miller in the Washington Post reports Saturday afternoon that Yemen's President approves every drone strike launched in Yemen.  Such approval would be an example of actual consent.

The Least-Bad Option in Pakistan?

Over at the Atlantic, JoshuaFoust takes issue with the new Stanford and NYU report, Living Under Drones, and argues that drone strikes are the least-bad option in Northwest Pakistan.  Says Foust:

In the short run, there aren't better choices than drones. . . .

Drones represent the choice with the smallest set of drawbacks and adverse consequences. Reports like Living Under Drones highlight the need for both more transparency from the US and Pakistani governments, and for drawing attention to the social backlash against their use in Pakistan. But they do not definitively build a case against drones in general. Without a better alternative, drones are here to stay.

But Foust is suffering from at least two ailments common to the debate about drone strikes in Pakistan.  The first is subscribing to the premise that action—specifically U.S. action—is required; the second is lumping all drone strikes against all targets in Northwest Pakistan together.

Under the first ailment, observers and policymakers presuppose that the situation in Northwest Pakistan demands kinetic action.  Across the spectrum of vectors by which to deliver that kinetic action—drone strikes, U.S. military incursions, Pakistani military actions—drones offer the least-bad option because they offer a high degree of precision and the impact from individual strikes is fairly circumscribed.  However, it is not entirely clear that military action is required—and, even if some action is required, it is not clear that the scale of U.S. action in Pakistan is appropriate.  First, Northwest Pakistan is home to a mélange of non-state actors pursuing varied agendas, targeting different populations.  The correct approach to addressing these various actors is almost certainly not uniform.  Instead, responses ought to be highly contextualized—drones, because of their relative ease of use, offer a low-cost alternative to formulating complex policy.  Second, to the extent that Foust is right and all of these actors exist due to “the Pakistani government’s reluctance to grant the FATA the political inclusion necessary for normal governance or to establish an effective police force,” drone strikes offer a solution wholly inapposite to the problem at hand.  Rather than in any way addressing the underlying causes that Foust identifies, drones strikes substitute a tactic for a strategy and act as a mere—if perpetual—stop-gap.

The second ailment that Foust and many others suffer from is lumping the myriad non-state actors in Northwest Pakistan together.  This facet, combined with the penchant for painting the targets of drone strikes with a broad brush, leads to statements like:

The targets of drone strikes in Pakistan sponsor insurgents in the region that kill U.S. soldiers and destabilize the Pakistani state (that is why Pakistani officials demand greater control over targeting). They cannot simply be left alone to continue such violent attacks.

The groups targeted by drone strikes in Pakistan include al Qaeda, the Afghan Taliban, Tehrik-e-Taliban Pakistan, the Haqqani Network, and many others.  These groups don’t have different names just to confuse the West.  No, they have different names because theyare distinct organizations, with distinct orders of battle, distinct agendas,and different enemies.  The last is perhaps the most important piece.  By treating these groups as an undifferentiated mass, the United States tends to drive them together—making them stronger—where it could potentially (in some cases, easily) drive a wedge between them.

More to the point, however, the targets themselves are not all “sponsor[ing] insurgents.”  The vast majority of the militants killed by drone strikes are not leaders.  The vast majority of those fighters killed are mere foot soldiers.  This fact alone begs the question of why drones are employed so frequently.  It is perhaps an inefficient use of resources to employ a drone—relatively cheap though it may be—to kill a grunt.

Fundamentally, drone strikes are here to stay not because they are the least bad option but because the problems in Northwest Pakistan are complicated and, potentially, intractable.  Addressing those problems is both difficult and not the responsibility of the United States—it is, instead, the responsibility of the Pakistani state.  In so far as those festering problems present an immediate threat to the United States, and the Pakistani state is unwilling to address it, then the United States should—and has every right to—avail itself of self-defense.  However, rightly employed, these invocations would almost certainly occur far less frequently than do drone strikes today.

Obamacare: Losing the Battles of Communication & Facts

There's a brief post up at Economist's Democracy in America blog commenting on a speaking appearance by Valerie Jarrett, Senior Adviser to the President. When asked what the administration's biggest mistake has been so far, Ms. Jarrett reportedly said it was a failure to communicate the benefits of the administration's policies. "If people voted their self-interest, they would vote for [President Obama]."

The author of the post calls this sort of response "arrogant," and in full said:

I think, goes to the heart of one of the Obama administration's weaknesses, one that certainly cost him the 2010 mid-terms and might cost him the presidency itself in two month's time. It is the idea that if only people were in full command of the facts, they would immediately see that the president was wise and right. It is arrogant, and, when you think about it, fundamentally anti-democratic. And it leads you to push policies that voters don't actually like.

 I have to disagree with the author that this sort of response is arrogant. I think ACA (Obamacare) is a great example of this. When people are polled on the individual elements of the legislation they support many of the pieces, but the administration has lost the battle of communicating the law in totality. Now part of losing that battle is the willful cognitive dissonance of the conservative attack on the legislation, perhaps tippified by this absurdly false and misleading advertisement from the 60 Plus Association, which perpetuates Vice Presidential candidate Paul Ryan's shameful and repeated attack that the Obamacare cuts $716 billion from Medicare (when it's actually future savings, not diverted funds) when Ryan himself would have included the same cuts in his Medicare plan.

The broader point being, healthcare reform as enacted by Obamacare is incredibly complex. The individual parts, healthcare for dependents up to age 26, no exclusion for pre-existing conditions, insurance plans required to cover birth control, poll incredibly well. The parts that don't poll well, like wringing $716 billion in savings over ten years from Medicare, which helps perpetuate the Medicare program aren't as easy to understand immediately. The point being, it's easier to point at these things, call them flaws, and harp on them at the cost of not telling the whole story.

That's where the administration is suffering. On certain elements they have been drowned out by misleading half-truths on policies that aren't simple to understand. This is all by way of saying that facts aren't what they used to be and if you lose the communication battle it can obscure the positive effects that the facts would seem to indicate, because everybody is getting skewed facts. I don't think it's "arrogant" on the part of Ms. Jarrett to says that's a mistake. I think it reflect the reality of a conservative movement that has systematically created a world of parallel facts designed to discredit ideas not aligned with their ideology.

I'm not sure how we fix it, but it is frightening that beyond trying to get an electorate engaged, we will now constantly debate who's facts to believe.

Coke Comes to Somaliland

Although Somaliland remains unrecognized--and remains substantially more stable and democratic than internationally recognized Somalia--the Coca Cola corporation has provided it with a measure of recognition.  That's right, Somaliland is the proud host of Africa's latest Coca Cola bottling plant.  NPR has the story.

Romney's 98 Page Millstone, Courtesy of Rep. Ryan

Been devoting all your time to the Olympics this week? Have you, like me, been talking less about the sports and more about NBC awful coverage?  Then maybe you missed the news that Gov. Romney selected Rep. Paul Ryan to be his running mate.  Now a lot of the smart money had been on Sen. Rob Portman of Ohio, but I'm on record thinking that if Romney went "outside the box" that would lead to Paul Ryan.  Rep. Ryan is more exciting (just barely) than Sen. Portman, less confrontational than Gov. Chris Christie, less green than Sen. Marco Rubio, and more everything else than Gov. Tim Pawlenty.

But Rep. Ryan comes with one big problem for Romney.  He's very very specific about the changes he would make to federal spending and the tax code. Like, nearly 100 pages specific.  Remember a week ago when the Brookings Institute's Tax Policy Center said Romney would have to raise taxes on the middle class to make his sketch of a tax plan revenue-neutral? Remember when Romney's campaign said the study, put out by a highly respected think tank that gave every possible positive assumption to Romney, was "a joke?" Well, Romney could bob and weave on the study because conservatives have been living to discredit studies that have anyone associated with it who once breathed on a Democrat. He could have gotten past that.

But Romney's selection of Ryan suggests that he doesn't believe he can win running as "the not Obama," as Ezra Klein wrote about on Saturday, "you don't make a risky pick like Paul Ryan if you think the fundamentals of the campaign favor your candidate." I tend to agree.  And that could be true, I mean people could figure out that a good part of the reason unemployment remains so doggedly high is because the government isn't replacing jobs it's lost. So instead of playing it safe and seeing if he can knock off an incumbent beset by poor economic performance, he decides to pick Ryan and strap a 98 page millstone around the neck of the campaign. Remember when Romney's campaign was arguing revenue neutrality? You can forget about revenue neutrality the second you say, "Paul Ryan."

Why do I describe Ryan's plan as a millstone?  Take it away Washington Post:

His proposals contain three major elements:First, the Ryan plan would overhaul the entitlement programs that have grown to consume about 40 percent of the budget, reshaping Medicare coverage for the elderly, and cutting deeply into Medicaid, food stamps and other programs for the poor. Second, he would rewrite the tax code, slashing the rates paid by corporations and the wealthy. Finally, Ryan would cut spending on other federal programs and agencies, with the exception of the Pentagon. Most controversial is Ryan’s proposal to transform Medicare so that the government, rather than paying for health care for the elderly directly, would give beneficiaries a set amount of money to shop for a private health insurance plan.

Now, without a doubt, there is a certain segment of the Republican party that will get very excited about this plan, but I don't think you'll excite too many undecided independents with that plan.  Lest we forget, Newt Gingrich said the Ryan plan was "right-wing social engineering." Of course, now that Ryan's on the ticket, Newt's position on the Ryan budget plan has evolved. The point being, Romney didn't need to tap Ryan to be VP. He could have tilted toward the Ryan plan, without totally, completely embracing it and lived in an ambiguous policy space until the election.  The math was not on President Obama's side. Romney didn't need to rile up his base, considering a fair percentage of that base believes the entire Obama presidency is illegitimate anyway, and I'm even sure Ryan does that.

But what Ryan does do it change the decision making process for discontented independents.  Until this weekend it was pretty straightforward: Do we stick it out with Obama, or do we make a change to Romney? Now the decision becomes: Do we want to gut government programs and remove safety nets for the less fortunate or do we want to keep those programs?

I was tempted at the end of last week to write up a post about how petty this presidential race has been so far.  It appears we could have the sweeping ideological debate that this country needs, provided we can all be honest about what these choices mean. And I think that's good for the country, but I'm not so sure that's good for candidate Romney. But hey, if this election doesn't go his way, maybe he can go to NBC and fix their Olympic coverage in time for Sochi.  NBC sucks.

Further reading: Jacob Weisberg at Slate says what I'm saying, only better.  Why do you think I put this link at the bottom of the post?