A brooding omnipresence in the sky...

This was the enemy, served up in the latest chart from the intelligence agencies: 15 Qaeda suspects in Yemen with Western ties. The mug shots and brief biographies resembled a high school yearbook layout. Several were Americans. Two were teenagers, including a girl who looked even younger than her 17 years.

. . . .

[The drone] killed not only its intended target, but also two neighboring families, and left behind a trail of cluster bombs that subsequently killed more innocents. It was hardly the kind of precise operation that Mr. Obama favored. Videos of children’s bodies and angry tribesmen holding up American missile parts flooded You Tube . . . .

Jo Becker & Scott Shane, “Secret Kill List Proves a Test of Obama’s Principles and Will,” New York Times (May 29, 2012) 

Every week President Obama and 100 of his advisors meet secretly to decide whom to assassinate with drone missile strikes. Fair game are foreign terrorists who pose an imminent threat to the U.S. homeland. Add to that foreigners who aren’t threats to the U.S. homeland that other countries like Pakistan want to see dead. Don’t forget U.S. citizens in foreign countries who are deemed terrorists. It’s also acceptable to kill women and children who are collateral to a target. But don’t worry: “When a rare opportunity for a drone strike at a top terrorist arises – but his family is with him – it is the president who has reserved to himself the final moral calculation.”

Where does President Obama get the authority to make the final moral calculation? If the Times journalists uncovered that source of controlling legal authority, it must have ended up on the editor’s cutting room floor. It should be said that Augustine and Aquinas did put in an appearance... (We’re told President Obama is their student.) But their teachings and how they authorize assassination are left unsaid.  The article also makes vague references to “the president’s attempt to apply the ‘just war’ theories of Christian philosophers to a brutal modern conflict.” Whatever those theories are and how they apply also went unreported. Why that’s not a violation of the mythical separation of church and state the Times is forever decrying is unclear. Just note that it’s media-acceptable for the government to rely on Christianity to take life but not to preserve it from other death-dealing like abortion and euthanasia.

Even though no law is identified, rest assured that President Obama is “putting his lawyerly mind to carving out the maximum amount of maneuvering room to fight terrorism as he [sees] fit.” The article says elsewhere: “When he applies his lawyering skills to counterterrorism, it is usually to enable, not constrain his ferocious campaign against Al Qaeda—even when it comes to killing an American cleric in Yemen, a decision that Mr. Obama told his colleagues was ‘an easy one.’” The President “stretche[s]” U.S. Supreme Court precedent and imbues case law with “edgy new interpretation[s].” According to the general counsel for the Department of Defense, Obama’s standing order is “Maintain my options.”

Please don’t fret about the constitutional rights of American citizens overseas. The Justice Department’s Office of Legal Counsel is helping with option maintenance. They prepared “a lengthy memo justifying” the targeted killing of American citizens in foreign countries in secret. Apparently, they’ve concluded due process rights of (1) trial by jury (2) conducted in a court of law (3) with an opportunity to confront witnesses and (4) offer exculpatory evidence in defense are totally satisfied. How so? Well, by “internal deliberations in the executive branch." If you’re skeptical and would like to evaluate those opinions for yourself, sorry. They’re “locked in a D.O.J. safe.”

If lawyers are going to cease relying on and applying the law as it is instead of what their client-bosses want it to be, no matter how fatuous the reasoning or dangerous the result, maybe they shouldn’t be called LAWyers. How about Enablers? Is this why we went to law school? If we dug up all our law school application essays answering "Why I want to be a lawyer," I doubt we would once find: "I want to help people . . . in high places achieve their objectives by prostituting myself and legal training to gussy up patently false legal conclusions." The law and Constitution and morality and Christianity have nothing to do with President Bush's or Obama's assassination program. It's the distilled product of political and pragmatic calculations. 

Are all the Legal Realists out there satisfied? They’re the ones who told us that man’s law has nothing to do with the eternal, immutable Law of God. Relaxssss. Law is merely a description of what proper legal authorities do, not what they ought or ought not do as civil magistrates with authority delegated by our Heavenly Father. One of the most famous of their sect, Justice Oliver Wendell Holmes Jr., blasphemously declared: “The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified . . . .” S. Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting). 

So gone is Holmes's brooding omnipresence in sky. In his (its?) place is lethal force administered by drones, mechanical and human, of the Military-Industrial Complex.

Let’s hope that President’s Obama’s legal skills and principles don’t evolve to the point that American citizens on American soil can be assassinated in secret (or openly). When questioned on the subject in a congressional hearing earlier this year, Obama’s FBI Director wasn’t sure of the answer. Or maybe he was just maintaining options.