The
progressive 'empathy gap', a strain of liberal authoritarianism, and a
distortion of Holder's letter are invoked to defend Obama
By Glenn Greenwald
Commencing immediately upon the 9/11 attack, the US government
under two successive administrations has spent 12 straight years
inventing and implementing new theories of government power in the name
of Terrorism. Literally every year since 9/11 has ushered in increased
authorities of exactly the type Americans are inculcated to believe only
exist in those Other, Non-Free societies: ubiquitous surveillance,
impenetrable secrecy, and the power to imprison and even kill without
charges or due process. Even as the 9/11 attack recedes into the distant
past, the US government still finds ways continuously to increase its
powers in the name of Terrorism while virtually never relinquishing any
of the power it acquires. So inexorable has this process been that the
Obama administration has already exercised the power to target even its
own citizens for execution far from any battlefield, and the process has
now arrived at its inevitable destination: does this due-process-free
execution power extend to US soil as well?
All of this has taken
place with very little public backlash: especially over the last four
years. Worse, it has prompted almost no institutional resistance from
the structures designed to check executive abuses: courts, the media,
and Congress. Last week's 13-hour filibuster of John Brennan's
confirmation as CIA director by GOP Sen. Rand Paul was one of the first -
and, from the perspective of media attention, easily among the most
effective -Congressional efforts to dramatize and oppose just how
radical these Terrorism-justified powers have become. For the first time
since the 9/11 attack, even lowly cable news shows were forced - by the
Paul filibuster - to extensively discuss the government's extremist
theories of power and to debate the need for checks and limits.
All
of this put Democrats - who spent eight years flamboyantly pretending
to be champions of due process and opponents of mass secrecy and
executive power abuses - in a very uncomfortable position. The
politician who took such a unique stand in defense of these principles
was not merely a Republican but a leading member of its dreaded Tea
Party wing, while the actor most responsible for the extremist theories
of power being protested was their own beloved leader and his political
party.
Some Democrats, to their credit, publicly supported Paul,
including Sen. Ron Wyden, who went to the Senate floor to assist the
filibuster. Sens. Jeff Merkley, Pat Leahy and (independent) Bernie Sanders
all voted against Brennan's confirmation, citing many of the same
concerns raised by Paul. Some prominent progressive commentators praised
Paul's filibuster as well: on CNN, Van Jones - while vowing
that "I love this president" - said "Sen. Rand Paul was a hero for
civil liberties" and that "liberals and progressives should be ashamed."
But most Democratic Senators ran away as fast as possible from having anything to do with the debate: see here
for the pitifully hilarious excuses they offered for not supporting the
filibuster while claiming to support Paul's general cause. All of those
Democratic Senators other than Merkley and Leahy (and Sanders) voted to
confirm the torture-advocating, secrecy-loving, drone-embracing Brennan
as CIA chief.
Meanwhile, a large bulk of the Democratic and liberal commentariat - led, as usual, by the highly-paid DNC spokesmen called "MSNBC hosts" and echoed, as usual, by various liberal blogs,
which still amusingly fancy themselves as edgy and insurgent checks on
political power rather than faithful servants to it - degraded all of
the weighty issues raised by this episode by processing it through their
stunted, trivial prism of partisan loyalty. They thus dutifully devoted
themselves to reading from the only script they know: Democrats Good, GOP Bad.
To accomplish that, most avoided full-throated defenses of drones
and the power of the president to secretly order US citizens executed
without due process or transparency. They prefer to ignore the fact that
the politician they most deeply admire is a devoted defender of those
policies. After stumbling around for a few days in search of a tactic to
convert this episode into an attack on the GOP and distract from
Obama's extremism, they collectively settled on personalizing the
conflict by focusing on Rand Paul's flaws as a person and a politician
and, in particular, mocking his concerns as "paranoia" (that attack was
echoed, among others, by the war-cheering Washington Post editorial page).
Just
as conservatives feared non-existent black helicopters in the 1990s,
they chortled, now conservatives are hiding under their bed thinking
that Obama will kill their neighbors or themselves with drones while
they relax at a barbeque in their backyard. In this they echoed Bush
followers, who constantly mocked
objections to Bush/Cheney executive power abuses as nothing but
paranoia. Besides, they claim, Attorney General Eric Holder has now made
crystal clear that Obama lacks the authority to target US citizens on
US soil for execution by drone, so all of Paul's concerns are nothing
more than wild conspiracies.
The reality is that Paul was doing
nothing more than voicing concerns that have long been voiced by leading
civil liberties groups such as the ACLU. Indeed, the ACLU lavishly praised Paul, saying that "as a result of Sen. Paul's historic filibuster, civil liberties got two wins". In particular, said the ACLU:
"Americans
learned about the breathtakingly broad claims of executive authority
undergirding the Obama administration's vast killing program."
But
almost without exception, progressives who defend Obama's Terrorism
policies steadfastly ignore the fact that they are embracing policies
that are vehemently denounced by the ACLU. That's because they like to
tell themselves that only Big, Bad Republicans attack the ACLU - such as
when George H.W. Bush tried to marginalize Michael Dukakis in 1988 by linking him to that group
- so they ignore the ACLU and instead pretend that only right-wing
figures like Rand Paul are concerned about these matters. It's
remarkable indeed how frequently, in the Age of Obama, standard partisan
Democrats embrace exactly the policies identified by the ACLU as the
most menacing. Such Obama-defending progressives also wilfully ignore
just how much they now sound like Sarah Palin, Karl Rove, and George
Bush when ridiculing concerns about due process for accused Terrorists:
Bush in his 2004 Convention speech mocking John Kerry: "After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers";
Rove in 2005 mocking liberals: "Liberals saw the savagery of the 9/11 attacks and wanted to prepare indictments";
Palin in her 2008 RNC Convention speech mocking Obama: "Al Qaida terrorists still plot to inflict catastrophic harm on America, and he's worried that someone won't read them their rights".
Find any defender of Obama's claimed power
to assassinate accused Terrorists without due process and that is
exactly what you will hear. That's why it is no surprise that the
conservatives whom Democrats claim most to loathe - from Dick Cheney to John Yoo to Lindsey Graham to Peter King
- have been so outspoken in their defense of Obama's actions in this
area (and so critical of Paul): because the premises needed to justify
Obama's policies are the very ones they so controversially pioneered.
In
sum, virtually all of the claims made by these progressive commentators
in opposition to Paul's filibuster are false. Moreover, last week's
Senate drama, and the reaction to it by various factions, reveals
several critical points about how US militarism and the secrecy that
enables it are sustained. I was traveling last week on a speaking tour
and thus watched all of it unfold without writing about it, so I want to
highlight three key points from all of this, centered around myths
propagated by Democrats to demean Paul's filibuster and the concerns
raised by it:
(1) Progressives and their "empathy gap"
The
US government's continuous killing, due-process-free imprisonment, and
other rights abuses under the War on Terror banner has affected one
group far more than any other: Muslims and, increasingly, American
Muslims. Politically, this has been the key fact enabling this to
endure. Put simply, if you're not Muslim, it's very easy to dismiss,
minimize or mock these issues because you can easily tell yourself that
they don't affect you or your family and therefore there is no reason to
care. And since the vast, vast majority of Democratic politicians and
progressive media commentators are not Muslim, one continuously sees
this mentality shaping reaction to these issues.
Yesterday, the Nigerian-American writer Teju Cole, in an interview with Mother Jones, said the key fact about US drone killings is that what "we're facing here is an empathy gap". He added:
"Killing a bunch of people in Sudan and Yemen and Pakistan, it's like, 'Who cares - we don't know them.' But the current discussion is framed as 'When can the President kill an American citizen?' Now in my mind, killing a non-American citizen without due process is just as criminal as killing an American citizen without due process - but whatever gets us to the table to discuss this thing, we're going to take it."
Writing in Salon,
the South-Asian-American philosophy professor Falguni Sheth blasted
Democrats and progressives for leaving it to Rand Paul to protest "the
White House's radical expansion of executive power". She noted: "rather
than challenge a Democratic administration in defense of constitutional
principles that all citizens should insist be guaranteed, Democrats
embraced party tribalism." She argues in particular that as Democrats
attack Paul on the grounds of his support for racist policies, they
support or acquiesce to all of these War on Terror policies that have an
obvious racial - and racist - component, in light of the very specific
types of individuals who are imprisoned, and whose children are killed
by drones, and whose rights are systematically abridged.
Some
progressives are unintentionally candid about their self-interest
leading them to dismiss these issues on the ground that it doesn't
affect people like themselves. "I can think of lots of things that might
frighten me, but having a drone attack me in my bed tonight is not one
of them", declared one white progressive at a large liberal blog in the course of attacking Paul's filibuster. Of course
that's not a concern of hers: she's not in the groups who are so
targeted, so therefore the issues are irrelevant to her. Other writers at large progressive blogs have similarly admitted
that they care little about "civil liberties and a less bellicose
foreign policy" because they instead are "primarily interested in the
well-being of the American middle-class": ie, themselves. And, of
course, the same is true of all the MSNBC hosts mocking Paul as
paranoid: they are not the kind of people affected by the kinds of
concerns they aggressively deride in order to defend their leader.
When
you combine what Teju Cole describes as this selfish "empathy gap"
among progressives with the authoritarian strain in American liberalism
that worships political power and reveres political institutions
(especially when their party controls them), it's unsurprising that they
are so callous and dismissive of these issues (I'm not talking about
those who pay little attention to these issues - there are lots of
significant issues and one can only pay attention to a finite number -
but rather those who affirmatively dismiss their significance or
rationalize these policies). As Amy Goodman wrote in the Guardian:
"Senator Paul's outrage with the president's claimed right to kill US
citizens is entirely appropriate. That there is not more outrage at the
thousands killed around the globe is shameful … and dangerous."
For
a political faction that loves to depict itself as the champions of
"empathy", and which reflexively accuses others of having their
political beliefs shaped by self-interest, this is an ironic fact
indeed. It's also the central dynamic driving the politics of these
issues: the US government and media collaborate to keep the victims of
these abuses largely invisible, so we rarely have to confront them, and
on those rare occasions when we do, we can easily tell ourselves (false though the assurance is)
that these abuses do not affect us and our families and it's therefore
only "paranoia" that can explain why someone might care so much about
them.
(2) Whether domestic assassinations are imminent is irrelevant to the debate
The
primary means of mocking Paul's concerns was to deride the notion that
Obama is about to unleash drone attacks and death squads on US soil
aimed at Americans. But nobody, including Paul, suggested that was the
case. To focus on that attack is an absurd strawman, a deliberate
distraction from the real issues, a total irrelevancy. That's true for
two primary reasons.
First, the reason this question matters so much - can the President target US citizens for assassination without due process on US soil? -
is because it demonstrates just how radical the Obama administration's
theories of executive power are. Once you embrace the premises of
everything they do in this area - we are a Nation at War; the entire
globe is the battlefield; the president is vested with the unchecked
power to use force against anyone he accuses of involvement
with Terrorism - then there is no cogent, coherent way to say that the
president lacks the power to assassinate even US citizens on US soil.
That conclusion is the necessary, logical outcome of the premises that
have been embraced. That's why it is so vital to ask that.
To see how true that is, consider the fact that a US president - with very little backlash - has already asserted this very theory on US soil. In 2002, the US arrested a US citizen
(Jose Padilla) on US soil (at the O'Hare International Airport in
Chicago), and then imprisoned him for the next three-and-a-half years in
a military brig without charges of any kind. The theory was that the
president has the power to declare anyone (including a US citizen) to be
an "enemy combatant" and then punish him as such no matter where he is
found (including US soil), even if they are not engaged in any violence
at the time they are targeted (as was true for Padilla, who was simply
walking unarmed through the airport). Once you accept this framework -
that this is a War; the Globe is the Battlefield; and the
Commander-in-Chief is the Decider - then the President can treat even US
citizens on US soil (part of the battlefield) as "enemy combatants",
and do anything he wants to them as such: imprison them without charges
or order them killed.
Far from being "paranoid", this theory has
already been asserted on US soil during the Bush presidency. It has been
applied to US citizens by the Obama administration. It does not require
"paranoia" to raise concerns about the inevitable logical outcome of
these theories. Instead, it takes blind authoritarian faith in political
leaders to believe that such a suggestion is so offensive and
outlandish that merely to raise it is crazy. Once you embrace the US
government's War on Terror framework, then there is no cogent legal
argument for limiting the assassination power to foreign soil. If the
Globe is a Battlefield, then that, by definition, obviously includes the
US.
Second, presidents change, and so do circumstances.
The belief that Barack Obama - despite his record - is too kind, too
good, too magnanimous, too responsible to target US citizens for
assassination on US soil is entirely irrelevant. At some point, there
will be another president, even a Republican one, who will inherit the
theories he embraces. Moreover, circumstances can change rapidly, so
that - just as happened with 9/11 - what seems unthinkable quickly
becomes not only possible but normalized.
The need to object
vehemently to radical theories of power has nothing to do with a belief
that the current president will exercise it in the worst possible way.
The need is due to the fact that acquiescing to these powers in the
first instance means that they become institutionalized - legitimized -
and thus become impossible to resist once circumstances change (another
Terrorist attack, a president you trust less). That's why it is always
the tactic of governments that seek to abuse power to select the most
marginalized and easily demonized targets in the first instance (Anwar
Awlaki): because they know that once the citizenry cheers for that power
on the ground that they dislike the target, the power then becomes
institutionalized and impossible to resist when it expands outward, as
it always does.
That's what Thomas Jefferson meant when he wrote:
"In questions of power . . . let no more be heard of confidence in man,
but bind him down from mischief by the chains of the Constitution."
It's also what Frederick Douglass meant when he warned:
"Find out just what any people will quietly submit to and you have the exact measure of the injustice and wrong which will be imposed on them."
Human
nature means that once you vest a power in political leaders, once you
acquiesce to radical theories, that power will inevitably be abused. The
time to object - the only effective time - is when that power theory
first takes root, not later when it is finally widespread.
(3) Holder did not disclaim the power to assassinate on US soil
Defenders of the Obama administration now insist that this entire controversy has been resolved by a letter written to Paul
by Attorney General Eric Holder, in which Holder wrote: "It has come to
my attention that you have now asked an additional question: 'Does the
President have the authority to use a weaponized drone to kill an
American not engaged in combat on American soil?' The answer to that
question is no." Despite Paul's declaration of victory, this carefully
crafted statement tells us almost nothing about the actual controversy.
As Law Professor Ryan Goodman wrote yesterday in the New York Times,
"the Obama administration, like the Bush administration before it, has
acted with an overly broad definition of what it means to be engaged in
combat." That phrase - "engaged in combat" - does not only include
people who are engaged in violence at the time you detain or kill them.
It includes a huge array of people who we would not normally think of,
using common language, as being "engaged in combat".
Indeed, the
whole point of the Paul filibuster was to ask whether the Obama
administration believes that it has the power to target a US citizen for
assassination on US soil the way it did to Anwar Awlaki in Yemen. The
Awlaki assassination was justified on the ground that Awlaki was a
"combatant", that he was "engaged in combat", even though he was killed
not while making bombs or shooting at anyone but after he had left a cafe where he had breakfast.
If the Obama administration believes that Awlaki was "engaged in
combat" at the time he was killed - and it clearly does - then Holder's
letter is meaningless at best, and menacing at worst, because that
standard is so broad as to vest the president with exactly the power his
supporters now insist he disclaimed.
The phrase "engaged in
combat" has come to mean little more than: anyone the President accuses,
in secrecy and with no due process, of supporting a Terrorist group.
Indeed, radically broad definitions of "enemy combatant" have been at
the heart of every War on Terror policy, from Guantanamo to CIA black
sites to torture. As Professor Goodman wrote:
"By declining to specify what it means to be 'engaged in combat' the letter does not foreclose the possible scenario - however hypothetical - of a military drone strike, against a United States citizen, on American soil. It also raises anew questions about the standards the administration has used in deciding to use drone strikes to kill Americans suspected of terrorist involvement overseas . . .
"The Obama administration's continued refusal to do so should alarm any American concerned about the constitutional right of our citizens - no matter what evil they may or may not be engaged in - to due process under the law. For those Americans, Mr. Holder's seemingly simple but maddeningly vague letter offers no reassurance."
Indeed, as both Law Professor Kevin Jon Heller
and Marcy Wheeler noted, Holder, by deleting the word "actively" from
Paul's question (can you kill someone not "actively engaged in
combat"?), raised more questions than he answered. As Professor Heller
wrote:
"'Engaged in combat' seems like a much broader standard than 'senior operational leader'. which the recently disclosed White Paper described as a necessary condition of killing an American citizen overseas. Does that mean the President can kill an American citizen inside the US who is a lower-ranking member of al-Qaeda or an associated force? . . . .
"What does 'engaged in combat' mean? That is a particularly important question, given that Holder did not restrict killing an American inside the US to senior operational leaders and deleted 'actively' from Paul's question. Does 'engaging' require participation in planning or executing a terrorist attack? Does any kind of direct participation in hostilities qualify? Do acts short of direct participation in hostilities - such as financing terrorism or propagandizing - qualify? Is mere membership, however loosely defined by the US, enough?"
Particularly since the Obama administration continues to conceal the legal memos defining its claimed powers - memos we would need to read to understand what it means by "engaged in combat" - the Holder letter should exacerbate concerns, not resolve them. As Digby, comparing Bush and Obama legal language on these issues, wrote yesterday about Holder's letter: "It's fair to say that these odd phrasings and very particular choices of words are not an accident and anyone with common sense can tell instantly that by being so precise, they are hiding something."
At
best, Holder's letter begs the question: what do you mean when you
accuse someone of being "engaged in combat"? And what are the exact
limits of your power to target US citizens for execution without due
process? That these questions even need to be asked underscores how
urgently needed Paul's filibuster was, and how much more serious
pushback is still merited. But the primary obstacle to this effort has
been, and remains, that the Democrats who spent all that time parading
around as champions of these political values are now at the head of the
line leading the war against them.
Related matters
While
the Obama administration continues to resist judicial review and
statutory disclosure on all of these matters by invoking secrecy, dozens
of current and former Obama officials (yet again) ran to the New York
Times to anonymously justify what the US government is doing
(specifically what it did in the Awlaki case), and the New York Times
(yet again) published an incredibly sympathetic version of events based on what they were told. Marcy Wheeler will spend the day dissecting the worst parts of that NYT story, but last night she began with one particularly egregious attempt to justify what Obama administration lawyers David Barron and Marty Lederman did when legally authorizing the assassination.
Last
week, in Portland, I gave the keynote speech to the ACLU in Oregon's
annual Liberty Dinner, and that 25-minute speech related to many of the
issues discussed here: http://vimeo.com/61306840
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