We the Targets: Obama's Combat Lawyers and a Fairy Tale of Law

Last night, NBC news broke the story of an Obama Justice Department memo on extrajudicial assassination of American citizens that screams off the page with the self-delusion and pity of an abused child writing a fairytale. It is a story of calmly supervised adult violence buried under the story-time adventure of so many princes, swords nominally at their sides, who keep hitting and hitting, because they have to.

This compensatory fantasy is the only way a Constitutional Law professor like Barack Obama can face his reflection in the camera lens. It's a story of hunches and God-given visions verbally tortured and parsed into "science," like a square hammered into a circle. It's a tale of an American hero spraying Terror Windex on the smudged screen of a threat matrix, mumbling to himself in the ObamaSpeak of Terror Tuesdays and disposition matrices.

The part of the fairy tale where one says, "And then a wizard fixed everything," has been replaced with its legal equivalent, the blackwhite Orwellian cant of calibrated pseudoscience, the probity of the imperium and an infinity of reason. The story of how Barack Obama kills Americans ventures both high and low for its rationalizations of untruth, even as its secret—that man is matter—spills across the floor at potentially any point on earth.

As Gawker's Taylor Berman noted last night, the memo expands on comments made by Attorney General Eric Holder and by Obama's Counterterorrism Adviser John Brennan. As of yesterday, Brennan was expected to sail through Senate confirmation as the next Director of the CIA, home of American assassination and, now, its own drone force.

Brennan originally spoke of an "inherent right to self-defense," while Holder stated that kill orders would be limited to deterrence of the "imminent threat of violent attack." This new memo makes those terms vague to the point of uselessness as law, and to the point of great utility if you merely desire the thinnest veneer of it. The memo's definition of an imminent threat revises the meaning of those words sharply downward, stating,


Now, a terrorist is someone who "recently" participated in threatening "activities"—the parameters of those words are undefined—then failed to noticeably renounce them. The establishment of what is recent, an activity and a threat will be determined by an "informed, high-level" official, with the definitions of that also left blank. Further, the determination of whether to abandon the obligation to capture and try said American citizen—i.e. the clumsy trappings of constitutionally guaranteed due process—hinges on whether it poses "undue risk" to U.S. personnel and "unfeasability."

This is a stupid idea that tries very hard not to sound stupid by being translated into the creole dialect of Concerned Legalese and Passive Voice. Even before these recent expanded definitions, listening to Eric Holder try to describe the administration's criteria is simultaneously terrifying and hilarious—a man tiptoeing around the pitfalls of signifying nouns and emphatic verbs as if conscious of what future questions he might be asked in a War Crimes deposition. In language so boldly obfuscatory, you could describe going to the toilet in such a way as to remove all bodily functions. You can instantly imagine Holder going through this process:

Periodically, in the course of normative operations, it becomes not only a necessity but an inevitability that, via one of many apertures within a collection of cells, effluvia or energy-production byproducts' expulsion must be effectuated.

And that's how befouling the basic laws of a nation is something people can come to tolerate, even from someone so thoroughly full of shit.

This is the kind of language people like Holder and Brennan must employ, because writing the same policy in plain English reveals a patent and fundamental hideousness. For instance:

We've decided that we will have the right to take your life after a secret and legally unaccountable conclave of vaguely defined experts has decided that you are a member of al-Qaida or a vaguely defined associate group and that you are vaguely senior enough in said organization to be responsible for vaguely defined activities and threats that may be posed at a vaguely defined time, and that attempting to capture and try you is too much of a fucking hassle.

Policies like that are inimical to simple language not just because they are morally repugnant but because four fine examples of simple language can be found in the Fourth Amendment's enumeration of one's protection from unreasonable seizure; the Fifth' Amendment's guarantees to due process; the Sixth Amendment's guarantee of the rights of the accused to public trial; and Article III's enumeration of how we are meant to deal with treason:


Obama tries so hard to couch himself in reason. He and his advisors know that an ugly policy will be more likely tolerated if it seems like everybody put their thinking caps on extra hard when they came up with it. It works even better when the New York Times makes it sound like the people in charge of implementing it will burn their five-o'clock shadow off by rubbing their chins really thoughtfully and going, "Hmmm," after running your name through the reasonably titled Disposition Matrix.

Obama and crew are all making that kind of technocrat wunderkinder mistake that if the person who writes the rules is just smart and thoughtful enough, the rules will become ironclad and binding upon all. And the great ugly irony is that they employ this process to pervert and circumvent a Constitution held up reverently in the American consciousness as the most perspicacious binding document ever crafted by—a room full of technocrats.

They think they can come up with a fairly calibrated set of rules, then pass them on to the next administration and be sure that whomever occupies the Oval Office will play by them with more faith than they paid to the Bill of Rights. This isn't just an Obama problem: it's a bipartisan problem, and a problem that threatens to become permanent now that Democrats have pardoned this policy to support "their" guy. It's a problem that merits a serious discussion on both sides of the aisle, from leftists worried about overreach in war and the same sort of conservative elements who even now see national assault weapons registries as an existential threat to both liberty and life.

But God only knows if we can have that sober discussion. As U.S. Judge Colleen McMahon wrote in response to the ACLU and Times' filing of Freedom of Information Act requests for Justice Department memos on drone strikes on Americans,

I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret [...] The Alice-in-Wonderland nature of this pronouncement is not lost on me.

McMahon was referring to a set of documents whose details have been carefully leaked by the Obama administration, while that same administration officially denied their existence. They have a strategy for defending and selling something that they have tried to claim isn't even there. And, for a thing that isn't even there, its contents provide the fullest argument for not revealing it.

McMahon went on to describe herself as caught in "a veritable Catch-22." The second analogy was much better. In the book from which that expression is taken, the protagonist Yossarian revisits a familiar brothel and finds the old man resident there has been taken away, dead. The place has been destroyed by the boots of the Military Police, and an old woman rocks in a chair in terror, explaining why it happened:


"What the hell are you talking about?" Yossarian shouted at her in bewildered, furious protest. "How did you know it was Catch-22? Who the hell told you it was Catch-22? [...] Didn't they show it to you?" Yossarian demanded, stamping about in anger and distress.


"What law says they don't have to?"