“Extrajudicial Killings” and This Motherf*cker Right Here | VALID | #TWIBnation

“Extrajudicial Killings” and This Motherf*cker Right Here

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The other day, while on double-secret hiatus, the TWiB Radio crew were discussing an odd Twitter exchange between our own Elon James White and Salon’s David Sirota – whom Elon affectionately dubbed, This Motherfucker Right Here – over Sirota’s recent column in which he compared Pres. Barack Obama to George Zimmerman. No, really.

The gist of Sirota’s piece was that, like Zimmerman, the President authorizes drone strikes in places like Yemen based on a mere suspicion that individuals in a particular area may have some affiliation with al Qaeda. No matter how you feel about drone warfare, it was a particularly clumsy analogy to use at a time when people of color were rightly outraged that Zimmerman got away with killing an unarmed black teenager. Zimmerman’s killing of Trayvon Martin and the Obama Administration’s conduct of the so-called “war on terror” are completely unrelated issues, and to coopt justifiable outrage and pain over the first in order to attack the country’s first black president on the second is pretty sketchy, to say the least.

But I’m not going to rehash those arguments, because the TWiB Radio crew did a much better job of it than I could.

I will, however, address one aspect of the controversy that’s been nagging at me from the first time I heard of the offending column. Following in the tradition of Glenn Greenwald, Sirota refers to the deaths of Trayvon Martin and innocent victims of drone warfare abroad as “extrajudicial killings,” a term which is entirely inapt in both circumstances. “Extrajudicial” literally means “outside the judicial system,” and it implies that the particular “extrajudicial” action – in this case, killing – should have occurred within the judicial system rather than outside it. In other words, if the police round up murder suspects, take them out back, and shoot them, that’s extrajudicial killing. The police should have arrested the suspects, booked them, read them their rights, and so forth; the police should have processed those suspects through the judicial system before any punishment, killing or otherwise, was meted out.

So, Zimmerman’s killing of Trayvon Martin wasn’t an “extrajudicial” killing; it was murder. Or manslaughter. But the point is, there was no judicial process that would have given Zimmerman the okay to pull the trigger that fateful evening. He couldn’t have gone to court and gotten an order allowing him to shoot an unarmed teenager with an ice tea and a bag of Skittles. There’s no judicial process for that.

And, in fact, the arguments of Sirota, Greenwald, et al. with regard to drone warfare suffer from the same logical flaw. The problem with drone warfare isn’t that it’s carried out without some sort of formal judicial blessing; the problem with drone warfare is that it’s conducted in a war that makes no sense and that defies the laws of warfare.

I wrote about this on my old blog and at Angry Black Lady Chronicles, so I apologize for the repetition. But this is something that bears repeating, because the anti-drone-warfare standard-bearers consistently misunderstand their own arguments. So, here we go again.

When it comes to drone warfare, the Sirota-Greenwald crowd is, at least, a bit more precise: Drone strikes result in “extrajudicial killings,” they argue, because those deaths occur without “due process.” But therein lies the problem: They seem to think that by invoking “due process,” the drone problem will magically disappear. Instead, what they’re really saying is, if you give the targets of drone strikes some form of due process, then drone strikes are a-okay.

In other words, if the problem is a lack of due process, rather than, as I’ve always argued, an absurd “war” that exists altogether outside the normal laws of warfare, then the President can cure the problem simply by affording proposed targets their due process rights. So let’s talk about what that means. The term “due process” generally refers to this: When the government wants to take action against an individual, that individual is entitled to reasonable notice and an opportunity to be heard.

In the criminal context, “reasonable notice” usually comes in the form of an indictment, an arrest, and an arraignment where the charges are explained in detail, at which time the defendant enters a plea. The “opportunity to be heard” component includes all the rights contained in the Fifth and Sixth Amendments – the right to counsel, the right against self incrimination, the right to a speedy trial, the right to confront witnesses, the right to be tried by an impartial jury, the right to have his or her guilt proven beyond a reasonable doubt.

I suppose the government could design a procedure whereby the President had to apply to the courts for an order permitting him to carry out drone strikes, with some form of notice to the targets, who would then have all the usual Fifth and Sixth Amendment rights. The targets could come to the United States to defend themselves, or they could stay abroad; but either way, the Administration would have to prove its case beyond a reasonable doubt before the court would approve a drone strike.

So, let’s say the President jumps through those hoops, and a court then authorizes a drone strike. So the President orders the drone strike in, say, a residential neighborhood in Pakistan or Yemen. The strike kills the intended targets … and two dozen innocent civilians. But hey, at least the targets’ due process rights were protected.

And those weren’t “extrajudicial killings,” so we’re cool, right?

See, that’s the thing about due process. It’s all about the process, and not about particular results. Which is my point: Due process isn’t some magical spell that can make a bad war good, any more than it could have sanctified George Zimmerman’s actions. Of course, if we ended this inane “war on terror” altogether, there would be no drone strikes, and then we wouldn’t have to worry about the magic due process incantation. But guys like Sirota latch onto certain terminology – Extrajudicial killings! Due process! – and they can’t let go, no matter how absurd the argument is.

David Von Ebers

An evil trial lawyer from Chicago, which makes me almost as bad as Barack Obama himself. Except, I am a Cubs fan, unlike our President, and so, as the kids say, I AM SHAME. I blog about legal issues, politics, sports, music (that long-haired rock 'n roll music all the kids are into), and, frequently, the interaction between any and all of the above. When I'm not busy undermining the Constitution or circumventing your freedoms, I run, watch too much sports on the teevee, and hang out with my long-suffering wife and three kids.

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4 Comments

  1. Randle Aubrey July 19, 2013 at 2:45 pm

    Once again, these guys say all of the right things, but in all of the wrong ways. What’s worse is, when you call them out on it, YOU’RE the problem. #smh

    • David von Ebers July 19, 2013 at 2:53 pm

      Yup!

  2. Barry July 19, 2013 at 10:27 pm

    As I recall, the amended PATRIOT Act gave the President authority to designate anyone anywhere, including U.S. citizens, as “enemy combatants” without oversight or review by Congress or any court or even FoxNews. The Act further denies due process from anyone designated as an enemy combatant.

    Since there’s no oversight or review, nobody knows whether Obama has designated anyone as an enemy combatant. If he has, drone strikes are just fine.

  3. ninjanurse July 20, 2013 at 11:46 am

    Wow, that is so well-said. Reminding us that we continue to wage a crazy war against a tactic, and that the rules of war should not apply to our own streets in peacetime. Thank you for a reality check.

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