Setting Up a Department of Pre-Crime, Part One: Why Are We Doing This?

I’m going to have a series of posts on the proposed FISA Drone (and/or Targeted Killing) Court, starting with a description of why I think there’s movement to do this now.

There are, as I see it, three different motivations among those now backing a FISA Drone (and/or Targeted Killing) Court.

First, there’s Dianne Feinstein. Now that the white paper has been released — and the actual OLC memos to the other members of her committee — it has been made clear that the program she has been assuring Americans, based on her Gang of Four review, is lawful is not the slam dunk she made it out to be. And while Mike Rogers’ constituents may not object to his continued reassurances that it is okay for the President to kill an American based on his sole authority (though they may; we shall see), DiFi’s are likely to. (Saxby Chambliss, of course, is not running for re-election; Dutch Ruppersberger has been rather quiet in the last few days). So to the degree that DiFi takes a lead on this issue, it is an effort to put a palatable spin on something she has been spinning as legal for years.

If a FISA Drone (and/or Targeted Killing) Court is necessary and justified, it should have been in 2009, when she took over the Chair at Senate Intelligence Committee (or at the very least, by January 2010, when it became clear the Obama Administration was targeted Anwar al-Awlaki). But somehow, DiFi is only backing the idea now that her poor judgment in letting the killings continue without oversight is being exposed. To some degree, I’d put Patrick Leahy (who doesn’t want to be tough with Obama) and Chuck Grassley in this position, as well.

Then there’s John Brennan, who in response to Angus King’s suggestion of a FISA Drone (and/or Targeted Killing) Court said,

And that’s why I do think it’s worthy of discussion. And the point particularly about due process really needs to be taken into account because there’s not a different standard as far as if a U.S. citizen joins Al Qaida, you know, in terms of the intelligence base or whatever. But American citizens by definition are due much greater due process than anybody else by dint of their citizenship.

I think this is a very worthwhile discussion. I look forward to talking to the committee and others about it. What’s that appropriate balance between executive, legislative and judicial branch responsibilities in this area?

I think Brennan’s motivation is far better summed up in the response he gave Jello Jay Rockefeller, who basically used his second round question to deliver a very sloppy blow job to Brennan. In response, Brennan got firey.

I want every member of this committee to be an ardent advocate, proponent, and defender of the men and women of the Central Intelligence Agency.

And I see it as my obligation to represent them to you on their behalf, so that when times get tough and when people are going to be criticizing and complaining about the CIA, I have all of you to say you knew about what the CIA was doing, you supported it, and you will defend it.

My impression is that, contrary to the moral rectitude myth, Brennan is a pretty amoral guy. It’s not right and wrong that motivates him; it’s allegiance, and as CIA Director (and, probably, even now) his allegiance is going to be to the institution.

And as he said in no uncertain terms to Jello Jay, he believes it is the role of the Intelligence Committee to support and defend the illegal actions the CIA does.

Brennan likely also knows that the easiest way to give the Committee cover for ardently defending what is, at its core, indefensible, and the only way to do so without affecting the flexibility accorded to the Executive Branch, is to let them pawn off the moral questions to a court operating in secret. That’s the way it has worked with the FISA Amendments Act, for the most part (if you ignore Ron Wyden and Mark Udall’s complaints about what — no doubt in the name of flexibility — has now been sanctioned by that court). So it’s a pretty good bet that if you throw the tough decisions to judges working in secret, it’ll give the Committee cover to defend his people, without limiting his or President’s Obama options on who or how they kill.

And then, finally, there’s Angus King (who write a letter repeating his idea, without expanding it much). I’m sure King means well. But he floated the proposal after having received the targeted killing memos just hours before, and just a month after he got involved in these issues in the first place. I highly doubt he has thought through the implications of the white paper, which, after all, asserts that the President has authority to kill Americans based solely on his Article II power, and does not situate that authority exclusively in the AUMF. Given that King cited Sandra Day O’Connor on Hamdi, I doubt King has thought through how inapt Hamdi should be to what happened to Anwar al-Awlaki. Unlike the process that arose from Hamdi and Hamdan and Boumediene — which had the legal basis of the AUMF to point back to — so long as this killing is based on an Article II claim, there are no easy guidelines you could possibly give the court to use.

And for someone like King, who means well and who is seeking a check, the court is easy, reasonable.

What’s not easy is doing what it would take to rein in that Article II claim: legislating some real terms that would make using CIA to kill Americans reasonable.

Ultimately — as I showed yesterday — the Administration has not been in the business of killing people for crimes they have committed, but for crimes they might commit in the future. And if Congress is going to try to make that legal for CIA especially without modifying the Constitution (heh), they would need to write some really extensive guidelines about what counts as a pre-crime (otherwise known, in the Administration’s language, an imminent threat). Indeed, that would be necessary before any court got stuck with this job.

But no one is talking about doing that work.

Which is really why this court is being considered as an option right now. Because no one wants to talk about what it means to kill in the name of pre-crime, and no one wants to make the difficult decisions about when killing in the name of pre-crime would be sound and when it wouldn’t be.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

20 replies
  1. P J Evans says:

    I doubt that they even think past the next election (not even their next election). If they did, they’d maybe realize that a change of administration could, if things went wrong, result in being targeted themselves. Or having constituents targeted, with very messy results.

  2. scribe says:

    When thinking and discussing Angus King, keep in mind that he is a wholly-owned subsidiary of Bloomberg, LP. That group of people, and like minded folks, was the source of much of the money behind his Senate run. He had next to no organization, had run no serious commericals, and otherwise was counting on a skate into the job until wingnut Charlie Summers started making a serious effort and inroads, shortly after Labor Day. My sources tell me that shortly thereafter and all of a sudden, like mushrooms after a warm rain, a King organization sprouted from nowhere and blanketed the air and the ground with King adverts and all the trappings.

    And, when you look behind his avuncular facade, you find out he’s Joe Lieberman with an old-Yankee face and a white moustache. And he’s most likely getting his ideas from the same source.

    Just keep that in mind.

  3. albatross says:

    I doubt very much that there is any fear on the part of the folks at the top that they will be targeted. About the only way I can imagine having the elite consensus on this stuff get shaken would be for it to be seen to be used against a member of the power elite, or at least someone close enough to seem like a real person (see Aaron Schwartz).

  4. joanneleon says:

    So obviously CYA. And a secret rubberstamp court using secret laws is ridiculous. We’re still dealing with secret laws and Americans aren’t allow to know exactly what could get them offed by their own government. The only thing we now know is that we’re not allowed to “sign up” as an Al Qaeda member or we might get blown to bits.

    Admin: “Minority Report Court, we want to kill this guy”
    Court: “Why?”
    Admin: “Because he’s a bad guy”
    Court: “What did he do?”
    Admin: “The pre-cogs told us that bad deeds are imminent, or might happen at some point”
    Court: “Go forth and kill him. God bless the pre-cogs”

    Admin: “Minority Report Court, we want to kill another guy. An American.”
    Court: “Why?”
    Admin: “He signed up with Al Qaeda”
    Court: “How do you know? Is he wearing an Al Qaeda uniform? Is he wearing an Al Qaeda badge?”
    Admin: “We don’t need no stinkin’ badges!”
    Court: “Go forth and kill him”

  5. Nell says:

    :: when killing in the name of pre-crime would be sound and when it wouldn’t be.::

    Never and always, respectively.

  6. JohnT says:

    Answer

    Now I will tell you the answer to my question. It is this. The Party seeks power entirely for its own sake. We are not interested in the good of others; we are interested solely in power, pure power. What pure power means you will understand presently. We are different from the oligarchies of the past in that we know what we are doing. All the others, even those who resembled ourselves, were cowards and hypocrites. The German Nazis and the Russian Communists came very close to us in their methods, but they never had the courage to recognize their own motives. They pretended, perhaps they even believed, that they had seized power unwillingly and for a limited time, and that just around the corner there lay a paradise where human beings would be free and equal. We are not like that. We know what no one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture. The object of power is power. Now you begin to understand me.

    George Orwell, 1984

  7. klynn says:

    @JohnT:

    You posted the quote that was running through my mind. I was wondering how many of the folks named in this post have Orwell’s pic on their office wall?

    The court would be for one reason only. Liability.

    I can see it now…Mennonite peace Mom who volunteers at her child’s school, active in church and works at a homeless shelter gets her phone and computer tapped. She partakes in peace marches. She buys hummus. She buys glycerine for her dried flower arrangement hobby. She uses fertilizer on her lawn. She reads Emptywheel. She speaks out against injustice because of her lack of understanding about free speech.

    She. Is. An. Imminent. Threat.

  8. pdaly says:

    Once pre-crime is fair game (well, it is already I guess) and routine policy, the administration will trumpet its recidivism rate of 0% with its precrime drone treatment program of US citizens. Who can argue with “success” like that?

    The late Mary brought up the fact that the U.S. Constitution explicitly prevents the Executive branch from extra judicially killing its enemies even with the assent of the Legislature. Why would we want to argue for secret precrime courts to paper over the Constitutional violation(s)?

    Mary:
    “the “due process” argument that the US PResident can issues kill orders for US citizens that it suspects of wrongdoing because rendition and extradition are too hard in some foreign countries is bull. It’s why we have a constitutional prohibition on bills of attainder – there are always situations where operating judicially is “hard” but the Executive branch and the Executive branch and Legislative branch combined are prohibited from sidestepping the judicial process to enact pains, penalties and punishments an suspected wrongdoers. That’s a prohibition on the power, period.”

    http://www.emptywheel.net/2011/09/30/lots-of-senior-officials-spilling-state-secrets-today/#comment-323024

    Let’s push the “it’s Unconstitutional, so let’s stop it” argument.

  9. thatvisionthing says:

    Haven’t finished reading yet. Got this far:

    Death decider John Brennan to potential enabler Senator King: “What’s that appropriate balance between executive, legislative and judicial branch responsibilities in this area?”

    God damn it! I have something to say. Who’s the original authority here, yes here? Who does the Constitution say is the deciding authority in trials and in elections? In whose name and for whose benefit is all this confabulated crap supposedly done? If no one else is going to say it, I will: “We the people” and “… jury … jury … jury … ” Does anyone expect a citizen to have a place in these secret death courts and death wish lists? Fuck no. And it’s not Constitutional and it’s not intelligent and it’s not just and it’s not American.

    Speaking as a constituent of DiFi and as a human, otherwise unrepresented.

  10. GKJames says:

    No question as to Brennan’s amorality. I’d go a step further, though, and say that his response to King’s idea was of a piece with the let’s-look-reasonable schtick that’s part of Brennan’s DNA as well as the confirmation process. He knows that, substantively, in parallel with the absence of meaningful Senate oversight, there is zero chance of meaningful judicial review. He also knows that, as long as the discussion continues to be about elusive “principles” — all that “duh!” stuff like, “we have the right to defend ourselves — the government will never be compelled to account for what matters, the purported facts on which it assassinates people.

  11. thatvisionthing says:

    Still reading… thank you:

    My impression is that, contrary to the moral rectitude myth, Brennan is a pretty amoral guy. It’s not right and wrong that motivates him; it’s allegiance, and as CIA Director (and, probably, even now) his allegiance is going to be to the institution.

    Also want to say, it’s not just amoral, it’s stupid – deliberately, compartmentally so – and asking Congress to buy into that compartment at the cost of all the rest of us.

  12. thatvisionthing says:

    So it’s a pretty good bet that if you throw the tough decisions to judges working in secret, it’ll give the Committee cover to defend his people, without limiting his or President’s Obama options on who or how they kill.

    Jury, where’s the jury of the accused’s peers? Where’s the innocence until proven guilty? Where’s reasonable doubt and the right to confront witnesses and challenge evidence? Where’s the truth, the whole truth, and nothing but the truth? Where’s shock the conscience? Where’s the jury?

  13. JohnT says:

    @klynn:

    Yea, another quote keeps going through my mind too, “stay gold,” from The Outsiders based on Robert Frost’s poem

    Ponyboy and Johnny get attacked by the Socs. Johnny gets beat up and they try to drown Ponyboy in a fountain, so Johnny stabs, and kills one of them in order to save Ponyboy. They then run away and hole up in an abandoned church, and one morning …

    http://www.youtube.com/watch?v=hHB6k_QPTSc

    Nature’s first green is gold

    Metaphorically, (and realistically) the Constitution is our gold

    Because when the gold goes away, that means it’s the beginning of the end. It’s the beginning of the end of law derived from the people. Isn’t that a big reason for Roman Republic crumbling? Isn’t that the basis for our reason for being – that law is derived from the people?

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

    I find it hard to believe that so many so-called smart people in our government have such poor reading comprehension skills, and are fighting to destroy the gold in our country

    PS we’re all Ponyboy and Johnny

  14. thatvisionthing says:

    Which is really why this court is being considered as an option right now. Because no one wants to talk about what it means to kill in the name of pre-crime, and no one wants to make the difficult decisions about when killing in the name of pre-crime would be sound and when it wouldn’t be.

    Thank you.

    I mean, can we just grab our butts here for a second and get real? Appointing a god to kill for pre-crime? Seriously? Congress is gonna vote for that?

  15. x174 says:

    surreal times, these.

    i found brennan, speaking to the senate not-so-intelligent committee, to be a repulsive caricature: a disgusting slab removed from off of jabba the hut’s nether regions, refashioned to spew falsehoods from his vile slit of a mouth.

    the Assassination Court, however, is a brilliant idea that will cover all the sins of that putrid enabler, Diane Effinstein, and decorate the whole macabre and sordid business of slaughtering innocents with that Obama-hued color of law.

    how quintessentially amerikan!

    cover from above.

    maybe, like in that movie death race 2000, they can televise the targeted killings so the whole family can call in and help decide who’s going to be shredded into hamburger this week.

    hell, maybe they will sponsor a new type of Family Feud called Bugsplat, in which we get to know all of the family member participants from Sana’a, Yemen to Detroit, Michigan before we turn them into “bugsplat” in high definition teevee.

    this may say sound far-fetched but look at what the us has become in ten (10) short years: abominable.

  16. lefty665 says:

    NSA is building the edifice on Beef Hollow Rd. to warehouse all the data, and is apparently putting a lot of R&D effort into predictive analysis.

    “Signature” targeting was just a beta release. Full blown predictive imminence, integrated with real time tracking is the real deal. That device on your hip or in your bag is too smart by half.

    The drones need imminence, we’ll give them imminence, and a precise geo-locator the better to let you know, with prejudice, that you’ve been judged and found wanting. Mene mene tekel upharsin – the handwriting on the wall.

    My country tis of thee, sweet land of Liberty, God Save the King.

  17. Jessica says:

    “I want every member of this committee to be an ardent advocate, proponent, and defender of the men and women of the Central Intelligence Agency.

    And I see it as my obligation to represent them to you on their behalf, so that when times get tough and when people are going to be criticizing and complaining about the CIA, I have all of you to say you knew about what the CIA was doing, you supported it, and you will defend it.”

    Sheesh – those are some true colors shining through. “You WILL defend it.”

  18. Greg Bean (@GregLBean) says:

    The group challenging NDAA (Hedges versus Obama) have a great panel session here. http://www.youtube.com/watch?v=t3e1bSutrfQ

    It’s in two parts, both are worth watching.

    The reason I post it here is that the suggestion is made, at some point though I didn’t note the speaker or exact instance, that it is time to repeal the AUMF.

    That to me makes a great deal of sense as to how to roll back the insanity that is now escalating into this drone debate.

  19. klynn says:

    @JohnT:

    Funny you should note the “stay gold” from The Outsiders.

    My daughter, a year ago, was Ponyboy in a stage adaptation of The Outsiders. We had many discussions about this scene and the meaning of the dialogue.

    You are correct. We ARE all Ponyboy and Johnny.

    EW, a question going through my head is, “Who of our allies, knows about the process of targeted killings best? Are there any outside players giving us information on legal guidance for “pre-crime?”

    In the past I have referenced Yuval Gingar’s Oxford Press book, Why Not Torture The Terrorists. Ginbar:

    “…analyzes the Landau model of legalized torture, under which interrogation of suspected terrorists was regulated in Israel between 1987 and 1999, with Supreme Court approval. Shaped by the recommendations of the Landau Commission of Inquiry, which included detailed instructions to interrogators on applying psychological ‘pressure’ and ‘a moderate measure of physical pressure’, the model claimed that such instructions are lawful under the ‘defence of necessity’ provision in the Penal Law, which applies to them. Many thousands of Palestinians, far outweighing the number of those convicted of any terrorist offences during the period, underwent the Landau interrogation methods, pronounced by UN bodies to amount to torture. Methods included various combinations of incommunicado detention, sleep and sensory deprivation, forced painful positions, ‘shaking’, and other humiliating or violent methods. Those applying the techniques according to instructions invariably enjoyed impunity from prosecution.”

    That’s regarding torture…Now we move from this to the praxis of pre-emptive strikes or as the experts prefer “pre-emptive self-defense.”

    There is plenty of dangers in the mindset of allowing legal justification for pre-emptive self-defense or as I like to call it, The 24 Syndrome.

    http://www.guardian.co.uk/politics/2002/jun/07/britainand911.usa

    As one works through the history of pre-emptive strikes/defense or in it’s contemporary title, The Bush Doctrine, we get to discussion about states harboring terrorists and legalities involved in pre-emptive strikes on such states:

    https://docs.google.com/viewer?a=v&q=cache:y9Mt4ltOpfsJ:www.rgsl.edu.lv/images/stories/publications/4_medzmariashvili_final.pdf+&hl=en&gl=us&pid=bl&srcid=ADGEESi16-zn6PkN_s0g5FW7lpYvIjudKlACZIllLvR_cGhcHi2oc-c7qVwdkE2ef4PkHdko3wialtrRn4iiwX5-RdoIk4JG1fDnjfQ6S6bKpdkNclWyrfYchl0nwvwjpULEfyr3pLrI&sig=AHIEtbTz9Y5aPwuC4d99weQol4CjB1seTA

    It is no long jump to move from the joint mindset of torture and pre-emptive strikes to targeted pre-crime killing. The legal arguments countries have used for both torture and pre-emptive strikes created a “sick” synergy, resulting in targeted pre-crime killing. It is the end result of torture and pre-emptive strikes because it is the practice of both through one action.

    So, are we looking at our own citizens as an aspect of being a nation that is harboring terrorists and therefore creating the environment for leaders to be “justified” if not “required” to carry out pre-emptive strikes on our own citizens before another country carries out a pre-emptive strike on us? If this is the twisted thinking that will be used, then the definition of imminent is well, an imminent definition needed to preserve our individual freedom. If the definition is never clarified in a transparent fashion, the terrorists have won.

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