Obama, Holder & the Altered Paradigm of War

by A. Jay Adler on March 9, 2012
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There is no better way to keep an argument going – that is, to halt any progress in the exploration of its critical ideas – than to simply ignore the claims of one’s opponent. At the very least, to acknowledge and contend with particular and supporting claims is to focus the field of dispute by narrowing it to the more precise points of disagreement. Refuse to do this, however, and one can pretend that the other side is maintaining a wildly unsupportable position rather than a position grounded in reasonable dissent. It is called talking past one another. We see it a lot in the cable news sideshow of pretend pundit debate. We see it from writers, too, who pretend to more serious discussion. We see it in the response to Attorney General Holder’s public defense the other day of the “use of lethal force” against an American citizen overseas.

I use the quoted language, Holder’s own, above because almost any substitute begins to prejudice the debate. “Executive power to kill,” David Cole headlined it at the NYRblog. “Execution without charges,” Glenn Greenwald predictably distorted the terms of debate in his own title, ahead of even the body of his argument. Why not “Resolved: I’m right and you’re a scoundrel”? It could serve for every Greenwald blog post.

Greenwald goes further, with characteristic dishonesty, and asserts in his headline that Holder defends execution without charges. Execution without charge is manifestly illegal, presuming one is operating in a law enforcement context in which the bringing of charges and sentencing would apply. However, in this debate, that is a claim of circular reasoning. It is the subject precisely in dispute. Stated Holder, about a synonym:

Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense… would not be unlawful.

One can disagree with Holder’s claim, but to ignore that he has made it, and the argument behind it, is not to counter the argument, but only to slant the discussion and to count on readers not to feel themselves sliding in your direction.

The President of the United States can order the killing of US citizens, far from any battlefield, without charges, a trial, or any form of advance judicial approval. That’s what Attorney General Eric Holder told a group of students at Northwestern Law School yesterday, in a much anticipated speech.

That’s how David Cole began, but that’s not what Holder told a group of students. Holder very specifically denied that the action is “far from any battlefield,” in which case the question of “charges, a trial, or any form of advance judicial approval” would alter. Elsewhere, Cole will acknowledge this argument, before verbally again forgetting it. But along this bias is how he begins his case. He ends his introduction thus:

The Constitution requires the government to obtain a judicial warrant based on probable cause before it can search your backpack or attach a GPS tracking device to your car, but not, according to Holder, before it kills you.

The search of one’s backpack would take place domestically, by police; the lethal force would be applied abroad in a belligerent context. This was reaffirmed after the speech. Again, this is not counter argument. This is ignoring argument.

The precise point of contention, over which the entire debate revolves, is summed up by the oft repeated assertion that 9/11 changed everything. It is a claim, by now, for those who reject many of its apparent entailments, that may have long ago become tiresome, have come to mentally fatigue with the drone of cant. Clichés will do that, even though many clichés are true. And any cliché can be eye-rolled and groaned over in stylistic judgment. But boos are not arguments.

More substantively, there is the proposition that the nature of war has changed, and that the capacity of non-state actors to commit large-scale violence in support of political ends, on a global scale, and to sustain the effort over time is the very nature of that change. Even before this was so, it had become for some decades the practice of the United States, and other states, to go to war without any longer declaring war. For many, this remains an unhappy development, but it reigns, nonetheless, as an altered condition of war making that bespeaks a transformation of paradigms.

One may try to argue substantively against acquiescence to, conceptually against the acceptance of these developments, but to continually ignore actualities and deny new ideas suggests an ironic parallel. Domestically, it is conservatives who reject the notion that the nation itself and the Constitution specifically are living constructs intended by nature and even design to alter with circumstance. It is conservatives who from other closely held beliefs and strong interests seem unwilling to see the world as it evolves and to change with it. It is conservatives who fear granting the government apparently new powers to configure our lives in new ways.

In this one instance, of war powers, it is many on the left, and libertarian allies, who, for all their natural openness to the evolving nature of society and human relations, refuse to acknowledge an obvious development in armed conflict. Just as the conservative clings to a precious understanding of national origins and values, and resists adapting the understanding to the alterations of time and circumstance, and rails against increased government power in the social sphere, some on the left rail against a similar power in the realm of security enforcement, and insist that the world remain unchanged.  Writes Cole,

It is not illegal or even controversial, of course, to shoot to kill enemy soldiers on a battlefield in wartime. An American citizen who chooses to fight for the other side takes the risk that he will be targeted along with his fellow enemy soldiers

But again, this is precisely the point, for Obama, Holder, and others. Anwar al-Awlaki had chosen “to fight for the other side” and was on a “battlefield in wartime.” The first assertion is not as new as the second, and it is a matter worth debating, but only when we do it directly and honestly.

Andrew Cohen makes the important distinction between the political and the legal arguments in support of the action taken against al-Awlaki. Insisting, in his courtroom manner, on considering al-Awlaki as nothing other than a suspect, Greenwald will legalistically question the evidence against him. One wonders how many perpetrators of traditional war could have been convicted in a court of law, even held for trial, on the basis of the available evidence against them before their defeat in war. But who, really, in the political context, doubts the truth of who Anwar al-Awlaki was and what he was doing? Greenwald, maybe. Greenwald is that lawyer, that professional casuist, who will not only argue for and achieve the acquittal of an obviously guilty man, and fairly claim that the system worked and the outcome therefore just, but who will look at you over a drink at the local litigator’s tavern and insist his client was innocent and serve you and yours with papers for slander.

Sometimes critics of the altered war paradigm do actually address it, even while elsewhere in the same argument continuing the rhetorical slants that ignore it. A not uncommon approach in this instance is the death by a thousand cuts, or questions, tactic of argument, a kind of deconstructive approach. Rather than attempt to directly rebut the argument for an altered paradigm, the critic challenges the reliable meaning of the key words used to formulate it. The general rule must be found to apply, according to this reasoning, precisely to new and real circumstance, and where one can find slippage in the precise application of language, then one can find one’s refutation of an argument in that. Here is Cole.

But each of the factors Holder lays out raises as many questions as it answers. If the “armed conflict” with al-Qaeda has no end in sight, is this effectively a permanent standing authority in terrorism cases?


Second, what constitutes an “associated force?”


Third, what does it mean to say that capture is not feasible?


Fourth, and in many ways most problematically, what constitutes an “imminent” threat of violent attack?

Of course, deeply analyzed concepts and clear definitions are always the goal of thinking, as much as is possible, and for as long as is practicable in the world of applied policy. But, truly, we claim – many of us, anyway – to live in a free and democratic nation. Shall we settle right now, or, as dangers brew, over the expanse of contemplative time, without the endless particulars of dissent, the meanings of “freedom” and “democracy”? Or the meaning of “imminent”?

Much has been leaked about al-Awlaki’s alleged involvement in terrorism, but no one has claimed he was involved in any particular attack at the time the administration killed him. How can an attack be “imminent” if no attack is about to be launched? According to Holder, “the evaluation of whether an individual presents an ‘imminent threat’ incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.” But he also claimed that al-Qaeda is “continually planning attacks” and “has demonstrated the ability to strike with little or no notice,” so therefore the President need not wait until “the precise time, place, and manner of an attack become clear.”

This appears to define “imminence” away. If al-Qaeda and its associated forces always present what the administration defines as an “imminent” threat then imminence ceases to have meaning. But this requirement is critical, because surely such killing, away from the battlefield, should only be undertaken as a last resort. [Emphasis added]

Many would argue that it is fair to claim that attack by one’s enemy at war – rather than defining “immanence” away – is always imminent. But to argue that, one must first make the claim that these conditions constitute a new form of warfare, a claim that Cole once again ignores, rather than refutes, and after having previously acknowledged it, by resorting again to the phrase “away from the battlefield.” Round and round the argument goes.

Cohen actually surpasses Cole in argument by infinite regression of meaning.

Imminent threat of violent attack. That’s the standard. Think for a second about the differing interpretations that can be given to four of the five words in that phrase. What is imminent? What is threat? What is violent? What is attack? The attorney general says that a citizen can be targeted only after the government “has determined, after a thorough and careful review, that the individual” possess a threat worthy of lethal force. And who gets to determine whether that review is “thorough and careful”? Why, the executive branch, of course.

“What is imminent? What is threat? What is violent? What is attack?” Good lord. It’s amazing one can rise and go to work in the morning. What is rise? What is work?

On Cohen’s last question, about who gets to make determinations, the standard complaint based on the law enforcement approach to non-state warfare (see how I’ve stolen the ground of the argument by use of my preferred terminology?) is the lack of judicial review. But we elect Presidents to make countless practical individual judgments, especially in war.  No one gets to approve the decision to send in Seal Team Six rather than drones after Osama bin Laden. Is it, too, actually inherently superior in process to place this kind of life and death decision in the purview of an unelected FISA-like panel of judges? Talk about death panels.

None of this is to argue that the claim of an altered war paradigm is not a critical subject requiring continued consideration and debate. Cohen, in fact, identified the greatest weakness in Holder’s presentation, which certainly needs detailing. Despite Holder’s several references to a basis in law,

The speech cited not a single Supreme Court case for its sweeping justifications. Not one.

Anyone who cares about this issue at all understands that what matters first is the legal rationale for the administration’s drone-strike policy. We need to know what the legal arguments are for such proclamations by the executive branch that, for example, the due process clause of the Constitution does not guarantee “judicial process” when a citizen’s life is on the line. What Holder delivered instead was what we already know — the political rationale….

Cohen is right. Even if one accepts the argument for a new paradigm, responses to it need to be grounded in law, if that grounding exists, or the ground needs to be lawfully created. And in the meantime, Presidents still need to act in the national defense. But reaching any measure of national consensus on the issue – which, so publicized beyond the bounds of this single issue is the discussion of it, may be too much to ask – requires productive argument, and productive argument does not come from continually ignoring what the argument is really all about.


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