The on-again, off-again debate is on again: Does the executive branch of the United States government ever have the right to assassinate American citizens without due process of law? A brave soul, who hopefully will remain nameless, has leaked an internal Justice Department “White Paper” outlining the Obama administration's reasons for answering “Yes.” A chorus of critical voices answers, just as loudly, “No.”
But most of the critics agree with the administration and its supporters on one point: The question here is about the executive’s power in wartime.
If that is indeed the question -- a big “if” -- history offers a certain kind of answer. Lincoln, Wilson, and Franklin D. Roosevelt all pushed their constitutional authority to the limit during war -- and beyond the limit, critics in their own day and ever since contended. Yet the overreach of these three presidents (if overreach it was) did little to tarnish their reputations.
Even their critics generally place their actions in a larger context: It’s understandable, though regrettable, that war subjugates all other concerns to the overriding goal of victory. And imagine if the United States had lost any of those wars. Where would we be now? The “White Paper” assumes much the same question as its foundation: Who would countenance a president risking the security of the United States in wartime?
So the document ignores the more basic question: Is this actually “wartime”? Is there a precise parallel between the situation this president faces and the wars his illustrious predecessors waged?
The “White Paper” itself admits that this is a different kind of war: “a non-international armed conflict.” But it ignores the difference. It acknowledges that this is not “a clash between nations.” Yet it consistently treats al-Qa’ida, for all practical purposes, as if it were a nation. And it uses all the reasoning that would apply to an old-fashioned war between two nations.
This version of reality -- call it the “We’re at war again” story -- has been so dominant for so long that it’s easy to forget how it began. After the 9/11 attack, the Bush administration made a very calculated decision to declare it an act of war. There was an obvious alternative: After the botched 1993 attack on the World Trade Center, President Bill Clinton chose to treat it as a criminal act, to be addressed by the police and justice apparatus, not the military.
A decade ago, there was still some public controversy about whether the Clinton or Bush approach was the best way to proceed. But that controversy didn’t last long. The war party’s story won out and is still winning out.
Every story creates its own world, a world spawned in imagination. The “war against al-Qa’ida” story lends itself very readily to fiction; its world has been depicted in innumerable movies, novels, and TV shows.
Now the “White Paper” offers a valuable confirmation that this imagined world has become the very real world of the Obama administration and the national security establishment. In many respects, it is the world in which all Americans live. The “White Paper” lets us take a good look at its mythic foundations.
In this world, al-Qa’ida is not a jumble of separate, vaguely connected cells (as many experts describe it). It is a virtual nation, with a unified, well-disciplined army whose “leaders are continually planning attacks.” Their purported motives are irrelevant; at least they are never addressed in the paper. All that matters is their one and only activity in life: ceaselessly planning attacks.
To make matters worse, “the U.S. government may not be aware of all al-Qa’ida plots as they are developing and thus cannot be confident that none [i.e., no attack] is about to occur.” In other words, we must live and act as if an attack were about to occur unless we have firm evidence to the contrary. And since that evidence can never be found -- How can you prove a negative? -- the threat of attack is “imminent” at every moment of every day. That’s the pivotal premise of the story.
But who or what is always about to be attacked? Here the war story’s world gets a bit murky. On the one hand, the target is clearly the entire nation; the “White Paper” repeatedly insists that the president is acting only to protect the nation from attack. On the other hand, the document insists just as often that he is acting to protect individual Americans from attack.
The two kinds of attack are treated as interchangeable. So the war story, in effect, makes every person in America an embodiment of the nation. An attack on any one, if somehow linked to al-Qa’ida (or an “associated force”), is the equivalent of a whole al-Qa’ida army invading our homeland.
Is any attack on an individual American, by definition, really an attack on America itself and thus an act of war? Yes, the “White Paper” assumes -- if the attack is planned and carried out by al-Qa’ida (or an “associated force”). Yet it never offers any argument to substantiate this claim. There’s no need for an argument. Within the world of the war story it’s a tautology: Since al-Qa’ida is, by definition, at war with us, any violent deed it or its associates commit is, by definition, an act of war. Within another story -- say, Clinton’s story of 1993 -- the same deed would be a criminal act, calling for a hugely different kind of response.
The “White Paper” occasionally mentions a third kind of attack, on U.S. “interests.” These remain undefined. But it treats any attack on our “interests” as equivalent to an armed invasion of the nation -- even if those “interests” are on the other side of the globe. In the war story, “the nation” is an expansive concept, indeed.
Those are the highlights of the war story and the world it creates. The crucial question that the “White Paper” raises is whether this is the world we want to live in. Once we recognize that this world is a product of imagination, born from one story among several that we might have told after 9/11, we also recognize that we are not forced to live in this world. It is a choice.
The ultimate results of this choice are clear enough. There are uncounted numbers of people dead. A few of them are U.S. citizens. Some (we shall never know how many) may actually be planning an attack that might kill people on U.S. soil. And some (more than we would like to imagine, perhaps) are wholly innocent “collateral damage.” Their deaths raise powerful anti-American sentiments and motivate a few among the survivors to become active planners of attack on the U.S.
Growing anti-Americanism reinforces one more inevitable result of the war story: a distant, muffled, yet very real and constant drumbeat of cultural anxiety that has become part of the soundtrack of American life.
The debate about whether the executive has the right to execute U.S. citizens without due process in wartime is certainly an important one. But isn’t it rather more urgent to debate whether we want to live in this frightening imagined world of “wartime”?
The American people may collectively choose this world despite its perils. One sign: The public endorses the president’s policy of extra-judicial killing of U.S. citizens, according to polls. In fact pollsters no longer find it a controversial issue; the most recentpoll I could find that asked the question was a full year ago.
Perhaps most Americans have forgotten that another story is possible. Or perhaps most prefer to be at war. The war story, and war itself, have undeniable appeal. And a “good war,”in which the enemy is absolutely evil and the only Americans who die are “bad guys,” is so much more appealing.
But if that’s what the public wants, at least it should be a conscious choice. Then, if there’s another attack on U.S. soil, we will have to acknowledge that the story we chose to tell played a role in making the attack more likely.