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.

Symmetry

The United States government recently killed a U.S. citizen named Anwar al-Awlaki with a missile fired from a drone aircraft. The man was riding in a group of vehicles going down a road in Yemen. There was no battle going on. There were no U.S. or NATO soldiers present, or even within the borders of Yemen.

Anwar al-Awlaki was born and raised in the United States. He retained his U.S. citizenship until his death. He was neither indicted for nor convicted of any crime by any U.S. court.

He was a man of conservative religious belief, a man who opposed U.S. foreign policy (especially in the Middle East and Central Asia), and a man with a wide following among Muslims who support attacks against the West. He had publicly advocated attacks against the United States, and allegedly corresponded with Major Nidal Hassan, the Army officer who went on a shooting rampage on a U.S. military base, as well as Umar Farouk Abdulmutallab, the inept “underwear bomber.” He is said to have inspired many Muslims living in the West to join jihadist movements. Please note that everything you will read about al-Awlaki’s ties to terrorists or terror organizations will contain the words “alleged,” “believed to be,” “suspected,” or the like.

What he wrote and spoke was obnoxious to almost all his fellow citizens, including me. This is irrelevant. The First Amendment is there to protect obnoxious speech. Uncontroversial speech needs no protection.

What he had done was speaking, writing, and thereby inspiring people to join criminal organizations and perhaps commit criminal acts. The U.S. government suspected (there’s that word again) him of becoming “operational” as a leader in al Qaeda. Theoretically, for the speaking and writing we can actually confirm, he could have been convicted of supporting terrorism, which carries a 15-year sentence. That is, if he had been arrested and brought to trial.

Instead, our government tracked him down in a foreign country and fired a missile at his car. He was not arrested or arraigned. He received no trial, no chance to confront witnesses against him, no discovery of evidence, none of the due process that U.S. citizens are supposed to have by right. I should expand on this – all human beings deserve due process. It’s not right because it is in the Constitution; it’s in the Constitution because it is right. The most heinous criminals and the people we hate need and deserve due process most of all, because the persecution of the hated is the weak point in any system of justice, the hairline crack where total failure begins.

You are not safe. When you get up in the morning and eat breakfast you are not safe. When you go to work you are not safe. When you walk down the street or drive in your car you are not safe. You are not safe when you go to bed at night. I am not alluding to terrorism originating in the Middle East. You are not safe because the U.S. government has crossed a line and decided that it can blast a U.S. citizen to bloody rags because of what he said and what he wrote. The U.S. government decided that it could arbitrarily kill a man because of as-yet unproven allegations and personal contacts with people who later committed crimes.

You may brush this off and think, “Whatever. I’m not a Muslim cleric with a big mouth and bad connections.” When I reach out through the internet and write to you, individual reader, that you are not safe, I am not engaging in hyperbole. If the government truly focused its many eyes on you, what would it find? With whom would you be associated, and by how many degrees of separation? The notorious Cardinal Richelieu once said that if you gave him just six lines written by an innocent man he could find something in them to damn him. What have you said or written carelessly in an angry moment? And if some Homeland Security operative with an attitude found something he didn’t like, what would he do? What would he be allowed to do?

 Remember the terrible symmetry of the law. Anything that the government can do to Anwar al-Awlaki it can do to you. 

Shootings

Once, back in my college days, I found a sheet of paper on the doorstep of my apartment. It was a photocopy of a hand written document, the lines of childish print sloping down and to the right. The author accused his neighbors (on both sides) of being CIA agents, and of disturbing his sleep and thoughts by beaming lasers at his head. He also had some complaints about voodoo, demonic possession, and the Catholic Church.  On the back side of the sheet he had an account of the numbers of these documents he had distributed, with succeeding totals crossed out and replaced. I think the last number was 35,000.

We can all agree that what this unfortunate individual needed was some serious mental health intervention. And yet, his outlet for his illness was essentially harmless.

Mass shootings have become an unsurprising social phenomenon over the past 20 years. The concept of a disturbed, angry individual either already owning or going out and buying a firearm and spraying a crowd of people with bullets is no longer novel to us. The recent shootings in Tucson have been followed in the past few days by an attack on a Detroit police station and a gun battle in a Wal-Mart parking lot in Port Orchard, Washington. This kind of incident has become a low level epidemic.

While the annual death toll due to multiple-victim shootings is relatively small compared to that of car accidents, it has a much more corrosive effect on society. Given the horror it evokes and the media coverage it gets it is a kind of unorganized terrorism. It degrades the mutual trust that is necessary for a functional society, strengthens the hand of the security-industrial complex, and reinforces the paranoia of those already tending in that direction. I’m going to look at it as I have looked at terrorism, through the old criminal justice formula of proving a murder: Means, Motive, and Opportunity.

I’ll dispense with opportunity first. We live in an open society. We should have access, within reason, to our political leaders and to each other. None of us wants to live in a locked down world. There will always be opportunity.

Here’s what I wrote about the means back in 2008, in an essay called “Ducks in a Row.”

Human society is, of course, imperfect. People get drunk, get angry, get abused, get addicted, and go temporarily or permanently insane. People lash out, and they lash out with whatever comes to hand. Some people go into a state of merciless cold anger and plan their killings. When they do so, they choose the most effective weapon they can obtain.

Whatever your interpretation of the second amendment to the constitution, you have to admit that our country is awash in firearms. One way or another, they are remarkably easy to obtain, especially for those of us with no felony convictions. There are over 200 million firearms in the United States, and firearms of even moderate quality tend to last decades, so at least this supply will be around for generations. Half the households in our country contain firearms. You may applaud or deplore this ease of access, but accept this consequence:

Mass shootings on campuses will keep happening. Mass shootings at workplaces will keep happening. Shootings of all kinds will keep happening.

They will keep happening even if you lock doors, hire armed guards, stick a pistol in every pocket, run stricter background checks for mental instability, or whatever policy you can dream up. A certain small percentage of the population will choose to injure their fellow human beings, and they will use the tools at hand. They will use their human ingenuity, their obsessive persistence, and the freedoms of an open society to gain access to firearms and access to their intended victims. We are up to our knees in blued steel. We have created a shooting gallery and we are the little cartoonish duck targets going back and forth. We are going back and forth to work, to classes, to restaurants, stores, and friend's houses, a little bullseye painted on each of us.

I do think that we can do a better (if not perfect) job of keeping firearms out of the hands of mentally unstable people such as Jared Loughner, the Tucson shooter. I’d assume that a person who was officially judged too mentally ill to safely attend community college would be too mentally ill to buy a Glock 19 and some 33-round magazines. The background check database for firearms purchases should include information about that kind of restraining order. For that matter, I’d like private individuals to have a limited access to that database. If I were to sell a firearm privately, I’d like to be able to call a number and say, “I’ve got John Smith, Vermont driver’s license number such-and-so in front of me. Is there any reason I shouldn’t sell him a gun?” A yes/no answer would suffice, and might prevent the next Jared Loughner from shooting 20 people.

As usual, I find the most compelling ideas in the subject of motivation. I found an interview with Dr. Michael Welner, a forensic psychiatrist, on the subject of mass shooters. Dr. Welner differentiated between the workplace shooter, who over-identifies with his work and feels emasculated and hopeless after being fired, and a community shooter, who is more likely to be psychotic and paranoid, the shooting sparked by even a minor incident.

What carries across Dr. Welner’s (and other) descriptions of these killers are the concepts of grievance, humiliation, alienation, and hopelessness. The shooters feel (rightly or wrongly) that they have been injured, and that their dignity has been impaired. They have lost emotional connection with the people around them. Perhaps most importantly, they feel (again, rightly or wrongly) that they have no access to a just process that will solve their problems. The prospect of due process is what keeps people from each other’s throats.

One of our problems is that we live in a society where a large portion of the population feels thwarted. They work hard and can’t seem to get ahead, although this is promised by our national myth of meritocracy. Given our corporate-friendly labor laws they feel like serfs at work. They live in communities that aren’t communities in the old sense of a shared set of values and an idea of mutual responsibility. That old-style community teaches empathy and the idea of mutual sacrifice.

Those concepts of mutual sacrifice and empathy are important. It means that we each give up something to live in a functional society. It means that we see that those who disagree with us aren’t aberrations, but products of an upbringing and a set of experiences different from our own, but related to our own. Those concepts are missing in the eliminationist rhetoric being promulgated by many conservative commentators, and also in the mindset of aggrieved shooters.

The concept of due process is also important. The most dangerous person is the person without hope. Dr. Welner points out that community mass shooters don’t plan past the point at which they begin shooting. They have no hope of survival, no interest in it.

The idea and actuality that each of us can obtain justice from our government and our society is what keeps us engaged. We need to focus on both the actuality and the perception of justice. Reform of the judicial process is an ongoing necessity, as is a reform of our labor laws in favor of the ordinary worker. As this actual reform goes on, we need to educate people about the opportunities for obtaining justice and the realities of justice. The more people know about legitimate means the less they will stray towards violence. Also, people need to understand more about the process of law. Most people’s idea of legal process comes from those neatly wrapped crime dramas on TV. Life doesn’t work out that way. The hero (you) doesn’t always win.

I remember asking my father, a retired judge, about whether he was worried when he had a murderer in his courtroom. His answer was no, that these people had done their killing. Ex-husbands in contested divorces, however, were another matter. These were guys who had come to the end of due process and hadn’t gotten what they wanted.

This brings me back to the eliminationist rhetoric. The concept being promoted is, “If we don’t get everything we want, then the process is illegitimate and we get to discard it.”

One last point about mass shooters: They are almost exclusively men, white, and working class to middle class. Dr. Welner directly addresses the concept of masculinity:

Q:Is that why we don't see female mass killers?

Welner: Absolutely. There is nothing in our society that would elevate a woman's identity or her femininity through her ability to destroy. This truth reinforces my opinion of how important it is for us as a society to repudiate the connection between destruction and masculinity in order to develop the values we want our young people to carry with them even in times of emptiness and despair.

A good thought, especially in a society that glorifies our military might and fetishizes firearms. However, a person’s emotional structure, like nature, abhors a vacuum. What do we put in there in place of destruction?

Something that I have seen over the past few decades is the loss of the heroic nature of work. Employment in small farming has shrunk, and we have exported the production of real, physical things to Asia. It used to be that much of our workforce either brought crops from the earth or built things. However difficult the work, whatever injustices were prevalent in the workplace, a worker could point to something physical at the end of the day. A man could define himself as part of a community of builders. If masculinity is to be culturally defined by something, at least it should be defined by creating rather than destroying. Sadly, for both our economy and our zeitgeist, that has been mostly taken from us.