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Criminal Justice

Eric Holder vs. Colin Powell

I am somewhat stunned that the Obama Administration’s explanation of it’s ability and procedures for engaging in targeted killings of US citizens didn’t get more ink or discussion.  Then again, there were the important news stories related to Rush Limbaugh and Super Tuesday, and of course the saber rattling of the war drums against Iran which probably ended up being a distraction from Americans being provided a better understanding of when it is and isn’t ok for the POTUS to decide that another American should be offed.

personally, I understand, though don’t really agree, with the legal rationale for the Administration’s position.  With my limited legal background, my disagreement admittedly means a lot less since I am purely operating on what I’ve read about the issue.  However, regardless of whether one is in agreement with the legal rationale or not, my larger issue becomes that, if it is indeed such a slam dunk decisions that these bad guys are guilty enough to be drone missiled, then why is it so hard to make that case publicly…either before, or even AFTER the operation has been conducted?  Why is there so much secrecy around the entire program to the point that that there is no oversight and we are supposed to just trust that what we are being told is accurate under all circumstances?  And why is there no attempt to avoid creating loopholes instead of trying to fit the current reality related to non-state sponsored conflict to the spirit of the law that was abided by for decades until GWB decided it was no longer sufficient.  Something just doesn’t seem to square with me here.  It just seems like the current and past administrations have sought to expand definitions (for instance…what really is a “combatant?”  Or what is “imminent danger?”) and create legal openings as much as possible, and in secret no less, in order to suit their desires instead of working in a transparent way to actually put some boundaries on the power of the Executive Branch in a way that is consistent with how this country has idealized frequently and often operated in the past.

So, enter Eric Holder, with the unenviable task of trying to set the record straight on this issue regarding targeted killings, and really not doing it very well.  He reiterated the legalese quite well for the justification for why these operations can be conducted and then stated that there was oversight to make sure that the Administration followed it’s prescribed procedures.  However, as Kevin Drum argues:

Nonetheless, even more than a thousand words of throat clearing can’t hide the fact that Holder simply provided no evidence that the rigor of the executive branch’s due process procedures matches his rhetoric; no evidence that these procedures are consistently followed; and negative evidence that there’s any reasonable oversight of the process. Merely informing Congress is the farthest thing imaginable from rigorous, independent oversight.

Holder’s job, of course, was an impossible one. The Obama administration, like the Bush administration before it, has made a deliberate decision that actions like this are authorized by a combination of the 2001 AUMF and the president’s inherent commander-in-chief powers. By definition, this means that any oversight which limits his actions, even potentially, is unacceptable. And yet, a significant chunk of the public thinks oversight of the executive branch is a good idea. This means that lip service must be paid.

This is not to mention that people in the Congressional intelligence committees, much less the broader public, have not even gotten an opportunity to see the legal memo that the Administration’s lawyers pulled together to justify the drone program generally, and targeted killing and targeted killing of US citizens more specifically.  That doesn’t seem like much oversight to me, but call me crazy and radical.

This entire scene just reminded me of Colin Powell going before the UN to explain the rationale for going to war with Iraq.  In each case, the strategy seems to be to have sent out a respected man to make the case for something where no case could be made in order to try to use his stature to gloss over the fact that there really…actually….was no “there” there.  In each case, the strategy seems to be to hope that those (press, etc.)that would question others might avoid asking questions if there was such a respected front man (which succeeded in both Holder’s and Powell’s cases).  And of course with the backdrop of the question of whether both Powell and Holder even believed what they were trying to explain in the first place or were just being good soldiers.  So, in my opinion, Holder was presented with a similar task and performed it about as well as Powell did nearly ten years ago.  We can only hope that the outcome is different for him than it was for Iraq, not only for his reputation’s sake, but also for the rest of us as well.



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