Why I Don't Want to See the Drone Memo
And when the people saw that Moses delayed to come down out of the mount, the people gathered themselves together unto Aaron, and said unto him, Up, make us a secret memo that gets us out of the bit about Thou-shalt-not-kill.
And, lo, as I was driving home from the committee hearing I was pulled over for speeding, and I said unto the officer, "I've got a memo that lets me speed. Would you like to see it?" and he said, "No thank you, and not your grocery list or your diary either."
Transparency in drone murders has been a demand pushed by U.N. lawyers and pre-vetted Congressional witnesses, and not by the victims' families. Nobody asks for transparency in child abuse or rape. "Oh, have you got a memo that explains how aliens commanded you to kill and eat those people? Oh, well that's all right then."
Seriously, what the filibuster?
I don't want to see the memo that David Barron wrote "legalizing" the killing of U.S. citizens with drone strikes, after which (or is it beforehand?) I'll decide whether he should be a federal judge.
Laws don't work that way. A law is a public document, known to or knowable to all, and enforced equally on all. If a president can instruct a lawyer to write a memo legalizing murder, what can a president not instruct a lawyer to legalize? What's left of legality?
Let's assume that the memo argues with great obfuscation that, in essence, killing people with drones is part of a war and therefore legal, will we better off or worse off after watching all the human rights groups and lawyers bow down before that idol?
Just because Amnesty International and Human Rights Watch don't recognize the U.N. Charter or the Kellogg Briand Pact is not a reason for us not to. Laws don't work that way. Laws remain law until they are repealed. These laws have not been. If a memo can make a murder part of a war and therefore legal, we are obliged to ask: What makes the war legal?
The answer is not the U.S. government, not the pretense that the president can declare war, and not the pretense that Congress has declared eternal war everywhere. The U.S. government is in violation of the U.N. Charter and of the Kellogg Briand Pact.
Or let's assume the memo says something else. The point is not what it says but its purported power to say it. The law against murder in Pakistan and the law against murder in Yemen don't cease to exist in Pakistan and Yemen because a new Jay Bybee, willing to say whatever's needed to become a judge, writes a secret memo -- or a public memo.
And, as this conversation plays out, think what it will have U.S. editorial pages all silently assuming about the legality of murdering non-U.S. citizens. If a memo is needed to kill U.S. citizens, what about the other 99% of drone victims? That, too, is not how actual laws work. The laws against war don't prevent war only on U.S. citizens. The laws of Pakistan don't protect only U.S. citizens. The amendments in the U.S. bill of rights, for that matter, don't apply only to U.S. citizens.
Now, the memo is likely to describe people who are an imminent threat to the United States. And our newspapers are likely to remind us that President Obama made a speech claiming that one of the four U.S. citizens known to have been killed under this program was such a threat. It will be tempting to point out that Anwar al Awlaki, on the contrary, was already on the kill list prior to the incident that Obama claims justified putting him there. It will be tempting to point out that nobody's made even a blatantly false argument to justify killing the other three U.S. citizens, much less the thousands of other human beings.
We shouldn't fall for those traps. A president is not legally allowed to invent criteria for killing people. Never mind that he doesn't meet his own criteria. We should not be so indecent or so lawless as to engage in such a conversation. We should not want to see the blood-soaked memo.