Scott Shane Defends the Commander-in-Chief’s Language

NYT’s excellent new ombud, Margaret Sullivan, returns to a perennial ombud issue, how the Grey Lady refers to Executive Branch actions and abuses. She includes a long quote from Scott Shane that reveals a great deal about his reporting, and ultimately convinces me we should be calling drone killing assassination.

Adherence to “Targeted Killing” Even While Admitting It’s Not

Let’s start with Shane’s defense of the term “targeted killing” (a term I sometimes use but should not). Sadly, Sullivan cuts off the direct quote from Scott Shane at its most important part, but in the following, the first paragraph here is a direct quote from Shane, the second Sullivan’s report of his comment.

This leaves “targeted killing,” which I think is far from a euphemism. It denotes exactly what’s happening: American drone operators aim at people on the ground and fire missiles at them. I think it’s a pretty good term for what’s happening, if a bit clinical.

Mr. Shane added that he had only one serious qualm about the term. That, he said, was expressed by an administration official: “It’s not the targeted killings I object to — it’s the untargeted killings.” The official “was talking about so-called ‘signature strikes’ that target suspected militants based on their appearance, location, weapons and so on, not their identities, which are unknown; and also about mistaken strikes that kill civilians.”

Shane defends using “targeted killing,” even while admitting that a great deal of drone killing is not targeted. Unless Shane knows a great deal more about individual strikes than he lets on — and therefore knows which drone strikes are targeted at known identities and which are targeted at crowds of unknown military aged males — then he is party to an apparently deliberate strategy on the part of the Administration to spin its killing program as much more orderly and legally justified than it actually is. We saw this operate as recently as yesterday, when John Brennan responded to a question from Jan Schakowsky about signature strikes by telling her to look back at speeches that address only “targeted killing.”

SCHAKOWSKY: Let me ask you this, is there any way that you can define and distinguish between targeted strikes and signature strikes by the — by drones?

BRENNAN: I would refer to the comments that were made by a number of U.S. government officials publicly in speeches, including when I was at the White House. I’m not going to engage in any type of discussion on that here to the Congress, ma’am.

As I said, I’m as guilty of using this term without sufficient awareness as Shane. But doing so consciously really is participating in a propaganda effort the Administration is engaged in.

Executive Order 12333’s Invisible Ink

Then there’s Shane’s refusal to use “assassination” based on Administration claims about Executive Order 12333, which ostensibly prohibits the practice.

“Assassination” is banned by executive order, but for decades that has been interpreted by successive administrations as prohibiting the killing of political figures, not suspected terrorists. Certainly most of those killed are not political figures, though arguably some might be. Were we to use “assassination” routinely about drone shots, it would suggest that the administration is deliberately violating the executive order, which is not the case. This administration, like others, just doesn’t think the executive order applies. (The same issue arose when Ronald Reagan bombed Libya, and Bill Clinton fired cruise missiles at Sudan and Afghanistan.)

Shane appears to misunderstand something about Executive Orders (though he’s not alone on this front). DOJ’s Office of Legal Counsel has twice (once during Iran-Contra, and again in 2001 or thereabouts) judged that EO 12333 — the very EO purportedly prohibiting assassination — need not be formally changed when the President stops adhering to it. The language the Bush-era OLC came up with to justify ignoring EO 12333 without telling anyone reads,

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

Granted, in this particular instance, the Administration was secretly “waiving” EO 12333’s prohibition on surveilling Americans overseas, not assassination, but the principle is clear: EOs are not hard and fast rules, they are simply claims the Executive Branch makes about its own behavior but doesn’t always abide by.

So while I get that the Administration continues to offer excuses for why assassinations of some people aren’t like assassinations of others (remember, though, that we claimed to have assassinated Qaddafi’s son, and Qaddafi’s ultimate assassination was carried out with drone assistance), pointing back to any EO, particularly EO 12333, just endorses the notion that Executive Branch gets to call its killing whatever it wants.

Forgetting the White Paper on 18 USC 1119

Which brings us to this claim Shane makes.

“Murder,” of course, is a specific crime described in United States law with a bunch of elements, including illegality, so it would certainly not be straight news reporting to say President Obama was “murdering” people.

As Shane and his colleagues have reported, OLC had to write a second memo authorizing the killing of Anwar al-Awlaki because their first one had not treated a statute prohibiting the murder of Americans overseas, 18 USC 1119. While we don’t know whether the OLC memo succeeded, we know the white paper summarizing that second memo fails to adequately distinguish the CIA killing Awlaki from murder, ultimately relying solely on Commander-in-Chief say-so to explain why CIA officers bound, under the National Security Act, by domestic law are nevertheless permitted to ignore it if the President says they should.

Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

Mind you, NYT has “reported” that those of us who find this argument totally inadequate — a group which includes one of the only federal judges to actually look at the question closely — are simply confused. So Shane’s refusal to consider the word “murder” for actions that OLC had real worries constituted murder is consistent with that earlier “reporting.”

But it is a choice to side with the Executive Branch’s interpretation of things, as is the preference to use “targeted killing” rather than “assassination.”

In the name of “straight news reporting,” Shane defends picking only those words that make up the Administration’s propaganda case.

Update: It was Qaddafi’s son, Saif Qaddafi, we claimed to have assassinated.

Update: Saif didn’t die: he’s on trial.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

16 replies
  1. Jim White says:

    That whole piece really made my blood boil. Here’s a part that got to me:

    The debate over the word “torture,” he said, has similar implications to the one Mr. Shane described with assassination. “The word torture, aside from its common sense meaning, has specific legal meaning and ramifications,” Mr. Corbett said. “Part of the debate is on that very point.”

    The Times wants to “avoid making a legal judgment in the middle of a debate,” he added.

    Uhm, that’s just bullshit. As you point out in the post, the Times is repeatedly adopting the Obama administration’s terms on these key issues. And rather than not “making a legal judgment”, they are doing worse. They are adopting the administration’s legal judgment without questioning it.

  2. Brindle says:

    Thanks for going over this NYT feint on use of wording. I hesitate to click on most NYT articles regarding the U.S govt. killing of muslims because I know I will have re-read passages to weed out the propaganda and half-truths. Makes my brain hurt.

    Thanks again for your excellent work.

  3. Snertly says:

    Oddly enough, deep arguments about the legal meaning of specific words tend to only come up when guilty parties are trying to avoid the commonly accepted meanings of specific words.

  4. TarheelDem says:

    We now know why the response to the Church Comittee’s exposures of CIA wrongdoing in the 1970s was met with weak legislation (FISA) but an explicit executive order, don’t we. Isn’t it interesting that assassination was not prohibited by statute? The ghost of the Democratic war hawks (such as Scoop Jackson) lives on and on and on.

    The whole game was set up so that the prohibition could be ignored but only on the President’s order.

  5. greengiant says:

    “simply confused”? The grey lady ain’t fit for wrapping fish, it is just a poor straw dog for whatever false logic is bouncing around in the echo chambers of our leaders and their minions.

  6. seedeevee says:

    Well, most of the press bought “enhanced interrogation” — why not just use “legal murder”?

  7. earlofhuntingdon says:

    “Targeted killing” is not a euphemism? Hahahahahahahaha. It means murder by death, killing at the hands of the USG, which admits it often/sometimes does not know who it’s killing. A circumstance that includes the supposed target(s) as well as innocent bystanders. The latter category the Obama administration has tried to make disappear, like its targets, by “defining” anyone it kills, more accurately, anyone in its target zone, a presumed insurgent, itself a category merited murder by death, regardless of the facts of one’s individual behavior or motivation.

    All of that, Scott, is a euphemism for “I can kill whomever I say I can, so nuts to you.”

  8. Frank33 says:

    The US Assassins R Us, did not assassinate Hugo Chavez of Venezuela. The “Danger Room” says so. They might have, secretly with poisons or microwaves. But they would never do that. Every Tin Foil Tuesday the Danger Room tells us what Conspiracy Theories to not believe in.

    And Danger Room always shows us the bright shiney deadly toys that the Pentagon is creating to conquer the world for corporations.

    It is “targeted killing” and not “assassinations” that those hipsters use. I did not know it was transactional. That sounds sexy! What the hell is “transactional”?

    Targeted killing — particularly the sort carried out by the U.S. fleet of deadly flying robots — is a transactional business.

  9. Jessica says:

    “Targeted killing — particularly the sort carried out by the U.S. fleet of deadly flying robots — is a transactional business.”

    Transactional – that fits with the recent ‘side payments’ revelation.

  10. GKJames says:

    According to Shane, then, JFK didn’t fall victim to an “assassination” but to a “targeted killing”: “[An] American … aim[ed] at people on the ground and fire[d] [projectiles] at them.” (JFK reports that he doesn’t care in the least about the distinction….)

    The effect is that Shane and the NYT — who make their living using words and understanding their importance — give political and legal cover to acts by the US Government, which have only the flimsiest legal foundation; and it happens without in the least advancing the discussion about the substantive policy that supposedly justifies it. Not my idea of journalism, but, hey, neither Shane nor his employer are going to risk access by making the killers uncomfortable. Fame and lucre are at stake, after all.

    Shane also perpetuates an irrelevance. Yes, the tool happens to be a drone. And, yes, some people are put off by the mere fact that the button being pushed to launch the lethal projectile happens to be thousands of miles from impact (as if the killings-for-hire carried out by the JSOC squads acquired moral and legal legitimacy by virtue of being face-to-face). Those technicalities distract from the substantive issue: we’re killing people, frequently people we don’t know, and quite often — as a function of our deliberate indifference — people we don’t set out to kill but who, inconveniently for them, get in the way. And we’re doing it to the banal, lulling melodies piped by the chorus of killer-conspirators through their ventriloquist dummies as to the legality and rightfulness of what we’re doing.

  11. harpie says:

    Yesterday, the NYT used the term “wartime prison” in a story about the escalating “tensions” at Guantanamo.

    Weeks of mounting tensions between the military and detainees at the wartime prison at Guantánamo Bay, Cuba, escalated into violence on Saturday during a raid in which guards forced prisoners living in communal housing to move to individual cells.

    As far as I can tell from a search at NYT.com this is the first time the phrase is used in reference to Guantanamo.

    Maybe they got smacked down for recently decrying indefinite detention.

    We have a “wartime prison”, but no “prisoners of war”.

  12. ess emm says:

    @GKJames: neither Shane nor his employer are going to risk access by making the killers uncomfortable…

    Plus using the word “murder” just wouldnt be polite.

    The NYT helps the White House when they make statements that actively combine the military and the CIA together. Like these from the Mar 9 story:

    The overlapping reasoning justified a strike either by the Pentagon, which generally operated within the Congressional authorization to use military force against Al Qaeda, or by the C.I.A., a civilian agency which generally operated within a “national self-defense” framework deriving from a president’s security powers.

    and

    And by arguing that it is not unlawful “murder” when the government kills an enemy leader in war or national self-defense, Mr. Barron and Mr. Lederman concluded that the foreign-killing statute would not impede a strike.

    emptywheel has a firm grip on the trouble the administration is in: The civilian CIA killed al-Awlaki, the CIA is bound by the Constitution and US statute like the Foreign Murder statute.

  13. GKJames says:

    @ess emm: Brilliant, isn’t it? When it suits, it’s “war.” When it doesn’t — i.e., whatever the other side’s doing — it’s “terror.” Of course, Washington doesn’t have a monopoly on (immoral) obtuseness. It’s just the one place where they believe their own nonsense.

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