Exoneration

NBC News obtained a Department of Justice memo justifying the Obama administration program of using armed drones to kill people, including American citizens. There are so many ways this is wrong I could write an epic novel on the subject. I’ll restrict myself to one aspect.

It’s about fallibility.

But first, the basic concepts. The memo lays out three conditions for killing a U.S. citizen without an indictment, a trial, or a warning.

“Here the Department of Justice concludes only that where the following three conditions are met, a U.S. operation using lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qa-ida or an associated force would be lawful: (1) an informed high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles.”

I should note that the paper defines “imminent” in a novel way:

“The condition that an operational  leader presents an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,”

Last time I checked, “imminent” referred to something that will happen in the near future. Apparently it now means something that may not happen and not in the near future.

I should also note the vagueness of some of the language used. .”…an informed (How informed? By whom? To what standard of proof?) high level official of the U.S. government (Who? The Secretary of Health and Human Services?) has determined (How? By what method and to what standard?) that the targeted individual poses an imminent threat (See “imminent”, above)…”

Also: “Moreover, where the al-Qa-ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa-ida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.”

Got that? Lack of present evidence of non-activity equals a death sentence. To put it another way, “If we’ve been lazy about collecting exculpatory evidence that benefits you we can kill you.”

It all adds up to, “Because we want to.”

But back to fallibility. What we need to realize is that every week three men sit in a room in Washington D.C., look at some intelligence reports, and decide who will live and who will die. Unconstitutionality aside (and we need to turn 90 degrees and walk ten miles to get aside of that) there is the question of judgment.

There are some organizations that are working to determine the actual guilt or innocence of inmates on death row all over the United States. The Innocence Project has used DNA evidence and other evidence to exonerate dozens of men condemned to die.

Since the death penalty was reinstated in 1976 there have been 1321 executions. So far, since 1976 there have been 136 death row inmates exonerated, a ratio of just over 10%.

Consider that each of those 136 men condemned and then exonerated received some form of due process. It was by definition a faulty due process, but a process nonetheless. They each had a public trial, a defense lawyer, an opportunity to confront witnesses and present and challenge evidence, and a jury. Even after conviction they had the right to appeal the process.

The system still screwed up. Despite the process, the rules of evidence, the constitutional guarantees, and public oversight, they were sent off to be killed by the state. We’ll probably never know how many of the 1,321 who died should have gone free.

We are supposed to trust three men sitting in a room reading intelligence reports from the other side of the world to do better. Let’s remember that we have been duped into doing the dirty work of our enemies before. Factions in the Taliban used our military capabilities to eliminate rivals in Afghanistan.

Due process is the cornerstone of our republic. It was written into our constitution partly to preserve us from the deliberate abuse of power. Even assuming uniformly virtuous government officials, we need to be preserved from human error. It is the precise and demanding process of justice, the opportunity for appeal, and the extended time and public participation that minimize the mistakes of any one person. The Obama administration has abandoned all that and asked us to rely on their unwavering virtue and perfect wisdom. I’ll leave it there.