The White Paper and its Critics

Someone for reasons unknown last week leaked the classified Department of JusticeWhite Paper” on targeting with drone attacks the numerically tiny number of US citizens overseas who have joined al Qaida or affiliated groups. The leak set off an outburst of public debate, much of it ill-informed by people who did not bother to read the white paper and some of it intentionally misleading by those who had and, frankly, know better.

Generally, I’m a harsh critic of the Holder DOJ, but their white paper, though not without some minor flaws of reasoning and one point of policy, is – unlike some of the critics – solidly in compliance with the laws of war, broader questions of international law and the major SCOTUS decisions on war powers. It was a political error to classify this document in the first place rather than properly share it with the relevant Congressional committees conducting oversight

Here it is and I encourage you to read it for yourself:

Lawfulness of Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of al-Qa’ida

Much of this white paper debate has been over a legitimate policy dispute (“Is it a good idea if we use drones to kill AQ terrorists, including American ones?”) intentionally being mischaracterized by opponents of the policy (or the war) as a legal or constitutional question. It is not. The law is fairly settled as is the question if the conflict with AQ rises to a state of armed conflict, which SCOTUS dealt with as recently as Hamdi and for which there are ample precedents from previous wars and prior SCOTUS decisions to build upon. At best, framed as a legal dispute, the opponents of the drone policy would have a very long uphill climb with the Supreme Court. So why do it?

The reason, as I discern it, is substituting a legalistic argument and judicial process (“FISA court to decide drone killings”) to conceal what is really a debate over American war policy   and the President’s war powers in order to accrue domestic political advantage or at least avoid paying the costs of advocating a potentially unpopular position. Otherwise, opponents have to argue on the merits that the US should not as a matter of policy kill al Qaida terrorists sheltered by Pakistan or beyond the reach of government control in Yemen. Or that we are not “really” at war or that Federal judges are better suited for picking bombing targets than Air Force and CIA analysts and that “due process” should apply to enemy combatants on the battlefield. Many of these arguments are valid ones to raise and debate but are unlikely to be persuasive to the public or Congress; if they were, they would have prevailed in 2010 (drones) or 2001 (“are we at war?).

A straightforward legal analysis begins and stops with ascertaining whether or not we are in a state of armed conflict with al Qaida. The white paper used a “kitchen sink” approach to try and cover all legal bases, perhaps to create a basis for a later freewheeling peacetime use of armed drones – which incidentally, I am not in favor of – but it is not required here and actually distracts from the strongest legal argument – the administration is lawfully fighting an enemy in an armed conflict declared by Congress.

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