The issues the white paper does and doesn't raise (updated)

NBC reporter Michael Isikoff got access to a Justice Department white paper on targeted drone killing by the Obama administration. I haven't read the whole 16 page report mostly because NBC made that difficult by stamping the whole thing in order to ensure that no one misses that this is an "exclusive." But I did read Isikoff's report and watched Rachel Maddow's segment on it - including an interview with Isikoff.

One of the big errors Maddow made in her reporting - which was then corrected by Isikoff - is that she wanted to make a big deal out of the idea that the administration has never publicly defended their legal case for targeted killing. She totally ignored the speech Attorney General Eric Holder gave last March on exactly that topic. In that speech, Holder identified a three-part test for when targeted killing is legal:

1. The target poses an imminent threat of violent attack against the U.S.
2. Capture is not feasible, and
3. Killing would be consistent with the law of war

Holder (and the recently released memo) also make it clear that the basis for all this is what President Obama has called "the war on al Qaeda" (refocused from the Bush's "global war on terror") that was approved by Congress' 2001 Authorization for Use of Military Force.

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Equating the Bush administration's use of torture - which was clearly NOT consistent with the "law of war" - with these principles is nonsense. You can make a moral argument that killing someone is worse than torturing them. But that's the kind of challenge one undertakes when trying to make a moral case for war - which is ultimately about killing people.

Apparently the white paper expands the idea of "imminent threat" in Holder's first test and also the circumstances he described under which "capture is not feasible." In the paper, the latter condition is met if capture poses an undue threat to U.S. military personnel and/or if the home country would not approve of such an operation. Those qualifications seem consistent to me with the way similar matters are handled in domestic law enforcement and don't seriously trouble me in the context of "war." Let's remember that Bush/Cheney avoided all of these dilemmas by simply invading whole countries and killing hundreds of thousands of people.

That leaves me with two serious concerns. First of all, the expansion of the idea of "imminent threat" is troubling. From Isikoff's article:

“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.

Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.”

That leaves the barn door too wide open in my opinion - especially regarding the lack of exculpatory evidence given some of both the limitations and ineptness we've seen from our intelligence community in the not-to-distant past.

My second concern is the one I've always had...the open endedness of the 2001 AUMF that provides the legal framework for this kind of thing.  As I've always said, too many progressives focus on this as a domestic civil liberties issue when that is not the case the administration is making. The laws of war are very different than those that protect our domestic civil liberties. Representative Barbara Lee - the only member of Congress to vote against the AUMF - understands that. She has introduced legislation to repeal it. If progressives wanted to be effective in ending this practice, they'd support her in those efforts.

One final thought. Does anyone think that the release of this white paper was done without approval from the highest echelons of the Obama administration - probably the President himself? We know that they have been signaling the need to codify this policy for themselves and future administrations. I expect that this will spark just the kind of public conversation that they had in mind.

UPDATE: Of course Glenn Greenwald has written about this. He makes his usual bombastic points that we've been reading from him for years now. But he also makes one point that I think is important to consider about the "global battlefield."

That theory is both radical and dangerous because a president's powers are basically omnipotent on a "battlefield". There, state power is shielded from law, from courts, from constitutional guarantees, from all forms of accountability: anyone on a battlefield can be killed or imprisoned without charges. Thus, to posit the world as a battlefield is, by definition, to create an imperial, omnipotent presidency.

With that Greenwald is giving the very argument the Obama administration is making...that the relevant rules are those of war, not domestic civil liberties.

But he's right that opening up a global battlefield is a dangerous proposition. And yet, if we are going to have any coherent response to terrorism - which is very different from conventional war carried out on a "battlefield" - we need to struggle with this question in a way we haven't had to in the past. The kind of "war" Greenwald envisions is not likely to be the kind of war we face now or in the future. That's exactly why this conversation is so important.