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Barry Eisler

Former CIA agent Barry Eisler is the author of many books, including the New York Times bestseller 'Fault Line' and its forthcoming sequel 'Inside Out'

October 2nd, 2010 11:13 AM

This is Your Brain On War

Andrew Sullivan's defense of President Obama's claimed power to have American citizens assassinated nicely reveals much of the illogic behind, and many of the dangers inherent in, America's Forever War. Let's examine it point by point.

1. Assassination of American citizens, even if arguably extreme, has only been ordered applied, so far as we know, to four individuals.

When the government attempts to claim some controversial power, it tends to establish the alleged principle behind that power through the facts most convenient for its case. It's no coincidence, therefore, that the government has used Anwar al-Awlaki, whose name and face are a perfect fit for the popular image of Scary Foreign Terrorist, to make its case for a presidential assassination power. From a public relations perspective, it would have been more difficult to establish the power through the announcement of the impending assassination of someone named, say, Mike Miller, a white Christian. For the same reason, Jose Padilla was a good choice for the test case the Bush administration used to establish its power to arrest American citizens on American soil, hold them incommunicado in military facilities, and try them in military commissions. Similarly, the CIA was careful to introduce the news about its torture tapes with a low number -- just two or three -- and then, once the principle of the tapes had been established in the public mind, to mention the real (as far as we know) number, which was ninety-two.

Imagine you're a top West Wing spinmeister discussing how to recruit influence-makers into supporting the president's power to assassinate American citizens. Would you claim the power as broadly as possible, right up front? Or would you soft-pedal it, by initially attaching the power to one man with a dark beard and a scary-sounding name? The answer is obvious. Then, later, once the principle has been established, you can use it more expansively, knowing the influence-makers will have a hard time reversing themselves because, after all, they've already supported the principle, and knowing that the public will go along because now it's been properly inoculated against the shock of a full-blown admission.

But even leaving all that aside, the "but it was done to only a few people" argument is pretty weak. The acceptability of government conduct ought to turn on its legality, not on how many people were subjected to it. Presumably Sullivan wouldn't offer this defense of government conduct if the conduct in question had been torture, though of course this was a primary Bush administration defense of its torture regimen -- that only three people were waterboarded.

2. We know Anwar al-Awlaki is a member of al Qaeda because we can find information to this effect on Wikipedia and in independent news reports.

This argument turns on how much we ought to trust the government when it claims someone is so dangerous that the person merits extrajudicial killing (or, with regard to another power Obama claims for himself, so dangerous that he must be imprisoned forever without charge, trial, or conviction). Logically, I would expect that if the government has evidence compelling enough to justify assassinating (or imprisoning forever) an American citizen, the government would prove its case in court. And I'd be comforted if the government would take the trouble to do so, as I have an admittedly pre-9/11 attachment to the notion that, as the Fifth Amendment puts it, "No person... shall be deprived of life, liberty, or property without due process of law." In fact, given both the constitutional requirements and public relations imperatives in play, when the government refuses to make its case in court, I can't help but suspect just as a matter of logic that its case is in fact weaker than one might like a case for assassination to be.

It's especially relevant in this regard that Sullivan repeatedly bases his defense of the government's claimed power to assassinate Awlaki on Awlaki's alleged treason. Yet Article III, Section 3 of the Constitution provides, "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." So it's not just desirable that the government prove allegations like the ones against Awlaki in court; it's constitutionally required (and Sullivan himself seems uncomfortable with his call that Awlaki be executed on the basis of a Wikipedia entry and some news articles, because later in his post he suggests that the government does have some sort of duty to "reiterate" its case in court, if only as part of a more persuasive public relations effort. And note the use of that word, "reiterate" -- Sullivan seems to sense, correctly, that the news reports he cites as evidence are based, as such reports so often are, on government whispers).

So both logically and constitutionally, the government really shouldn't be assassinating American citizens just because Wikipedia and independent news reports claim they're doing bad things. But let's leave logic and the Constitution aside for the moment and instead examine the empirical case for trusting governmental claims that certain people are so bad they must be deprived of life, liberty, and property without due process of law.

Defense Secretary Rumsfeld once assured America that the 800 or so prisoners we had locked up in Guantanamo were "the worst of the worst." It turns out not only that most of them were innocent, but that the government knew they were innocent. And indeed, most of them have since been quietly released. Guantanamo is, of course, just one instance, and the history of successive governmental lying is so long and consistent I always find it baffling when someone reflexively treats government claims as a sufficiently trustworthy basis for imprisonment and execution.

We've all had the experience of knowing someone who we realize over time has a tendency to fib. When we make that discovery, immediately thereafter we begin to discount that person's unverified claims. This is just a common-sense, automatic, adult reaction to experience in the world. And yet, when it comes to the government, no matter how many times we're subjected to much worse than mere fibbing -- whether it's Guantanamo, or WMDs, or the scapegoating and persecution of Steven Hatfill as the anthrax killer, or the Pat Tillman coverup, to name only a few of the more recent instances of government lies -- some people will continue to trust governmental assertions as though the government has an unblemished record of truth-telling. I don't know how to explain this irrational credulity. My best guess is it has something to do with denial born of the pain of knowing someone you'd like to trust is in fact a habitual liar.

3. It's okay for the president to order the assassination of Americans we know through Wikipedia and independent news reports are terrorists, as long as the assassinations are done abroad and not on US soil.

This is just incoherent. Why would it be okay to assassinate a treasonous, imminent threat to thousands of American lives when he's abroad, but not okay when he's on American soil? If anything, you'd think the treasonous, traitorous, threatening, inciting, dangerous, spiritual-advisor-to-mass-murderers (to quote Sullivan's case against Awlaki) terrorist would be even more of a threat in closer proximity to his American targets. Why would we want to offer such a dangerous terrorist sanctuary on the very soil he seeks to soak with American blood?

I like that last line. There's something satisfying about getting emotional and trying to whip up others, too (plus I'm a sucker for alliteration). All that logic and devotion to the Constitution was starting to tire me out. But look, the point is, if the president can order the assassination abroad of citizens because he deems them dangerous, he ought to be able to have them assassinated at home, too. Suggesting otherwise feels almost like the kind of dodge I discuss in my response to Sullivan's first argument about the assassinations being limited in number. The message is, don't worry, you asleep in your beds have nothing to fear from this program, which only applies abroad. But because the principle behind the power applies at home, too, eventually the program can be expanded everywhere. That's the way I'd play it, anyway, if I were introducing the program and trying to get the public comfortable with it.

4. We are at war.

This is really Sullivan's central claim -- after all, the title of his piece is "Yes, We Are At War," and he notes about a dozen times in the text itself that We Are At War. He offers some lip service to the notion that the war is not of the traditional variety, but the nature of this "war" is in fact the heart of the matter.

The laws of war don't require, and we don't expect, our soldiers to capture enemy soldiers who are firing at them on the battlefield. But what happens when we expand the concept of "war" to encompass the entire world? To continue for an indefinite period? And to include anyone, because there are no longer meaningful categories such as "soldiers" and "civilians?" That is, when there's no way of determining where the war is being waged, or against whom, or for how long?

It's hard to say for sure, because as far as I know outside Nineteen Eighty-Four it's never been tried before. But I can see some worrying trends. First, many people will start ignoring the Constitution and its requirement that only Congress can declare war. Yes, there were two Authorizations for Use of Military Force -- the first, against those who the President determined "planned, authorized, committed, or aided" the 9/11 attacks; the second, against Iraq. The first might apply to Awlaki, but it's telling that Sullivan doesn't ever bother to cite it. For many people, and I suspect Sullivan is one of them, war is more a state of mind than a condition of hostilities. How else to explain his claim -- which would be scary if it weren't so obviously absurd -- that, "There is no 'due process' in wartime"? The original legal authorization, such as it was, is forgotten, and "We Are at War!" becomes the all-purpose excuse for all government excesses and the all-purpose dismissal all civil liberties concerns.

(For more on this, I recommend Chris Hedge's superb War is a Force That Gives Us Meaning).

Indeed, one of the things that strikes me about the resort to war (and to violence and punishment generally) is that war is more an end than it is a means. Sullivan doesn't argue for war as a tool; he repeatedly argues for war itself:

"We are... at war with a vile, theocratic, murderous organization that would destroy this country and any of its enemies if it got the chance...

"The idea that this is not a war [is] a ludicrous, irresponsible and reality-divorced claim that I have never shared...

"I believe it is the duty of the commander in chief to kill as many of these people actively engaged in trying to kill us as possible and as accurately as possible...

"The point of targeting key agents of al Qaeda for killing is precisely to fight a war as surgically and as morally as we can...

"Treating this whole situation as if it were a civil case in a US city is not taking the threat seriously...

"And so the inclusion of Awlaki as an enemy is not an "execution", or an "assassination", as some of my libertarian friends hyperbolize. It is a legitimate and just act of war against a dangerous traitor at war with us and enjoining others to commit war...

"We ignore these theocratic mass murderers at our peril...

"We have every right, indeed a duty, to kill them after they have killed us by the thousands and before they kill us again."

Rather than articulating an objective (crippling al Qaeda? Reducing the threat of terrorism to manageable levels, as we do for crime? Ending tyranny in our world? Sullivan doesn't say), and then explaining why a given set of tactics is well-suited for achieving that objective, Sullivan repeatedly argues for war itself, and everything that war entails. And why not? War has its own logic, and with a war as all encompassing as the one we're in, that logic takes on a powerful and seductive life of its own. Once you accept, and embrace, that "We are at War," the rest, as they say, is just commentary.

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