MinnPost/Jana FreibandMatt EhlingOutside of Beltway legal circles, few may be familiar with the name Jennifer Daskal, a Georgetown law fellow who most recently worked in the Justice Department’s National Security Division. Those who do recall the name would most likely remember it from a brief press flap over Obama administration appointees who had represented Guantanamo Bay detainees during the presidency of George W. Bush.
For the most part, these appointees were white-shoe attorneys who had burnished their litigation credentials working on high-profile detainee cases. Daskal’s background was different. Before her time at Justice, she served as senior counsel for Human Rights Watch, the international human-rights organization. While there, her work centered on legal challenges to the Bush administration’s detention and interrogation policies.
The press attention that Daskal received in 2010 was spurred by a political attack meme put forth by “Keep America Safe” – an advocacy group helmed by Liz Cheney and other prominent neoconservatives. Cheney’s attack attempted to frame President Barack Obama’s Justice picks (including Daskal) as being “too radical” for having worked on Guantanamo habeas cases.
Given this background, it is notable that Daskal has recently emerged as a voice arguing for – rather than against – Obama-era counterterrorism policies that have their roots in the predecessor administration.
'The Geography of the Battlefield'
It is fair to say that Daskal has not been a central player in the overall formulation of Obama-era national security doctrine, given the narrow focus of her duties at Justice. However, Daskal’s importance to this essay stems from her recent drafting of a law-review article entitled “The Geography of the Battlefield.” In this modest volume, Daskal puts forth several proposals about the future of counterterrorism, and in the process vividly illustrates the thinking that pervades the Obama national security team. This thinking differs from Bush-era assumptions, but only by matters of degree. On key fundamentals, there are significant overlaps.
Shifting the baseline
Daskal’s intellectual journey from critic to advocate mirrors the larger transformation of the Obama administration as a whole. Coming from a background in human-rights advocacy, Daskal worked to challenge due-process hurdles faced by Guantanamo detainees, and opposed the use of detention without charge. Her entree into the debate over the war on terror was as a critical voice, decrying executive over-reach in the wake of 9/11.
Similarly, the Obama administration’s early pronouncements on counterterrorism policy seemed to clearly repudiate past practices. Obama promised to close Guantanamo, hold criminal trials for the 9/11 masterminds, and oppose the practice of indefinite military detention. The president even attempted to elevate Dawn Johnsen – a strident Bush critic – to the chief job at the Office of Legal Counsel, home to the infamous John Yoo “enhanced interrogation” memos. In total, these moves were read to signal a repudiation of the “war everywhere” framework that guided the Bush team, and to re-assert the primacy of law enforcement as a counterterrorism tool, with the concomitant strictures of constitutional law at work on the home front.
These early moves foundered fairly quickly. Some agenda items – such as criminal trials for the 9/11 plotters – hit significant political opposition, and were complicated by legacy issues inherited from the Bush administration. Others, such as the closing of Guantanamo, were stymied from the beginning by statutory hurdles put in place by Congress.
On the matter of indefinite detention, Obama initially took steps to remove the practice from the government’s tool kit – pulling the last remaining Bush-era domestic detention case before it could be considered for Supreme Court review. It is on this point, however, that the Obama team has back-slid the farthest, essentially salvaging the practice of indefinite detention during last year’s debate over the National Defense Authorization Act (NDAA).
Daskal’s paper describes the precepts that undergird the administration’s revised thinking regarding detention, and serves to illustrate how – on this and other matters of Constitutional rights – the administration and its intellectual allies have shifted the baseline of where “reasonable” assumptions about counterterrorism policy begin.
The new normal
Daskal’s work begins by framing the debate over the war on terror in a familiar way – with broad executive war authority on one end, and “peacetime” law-enforcement tactics on the other. She then offers a compromise position between these two poles, meant to guide the formulation of future counterterror policies. This “compromise,” however, effectively accepts most of the key precepts of the war-based paradigm.
Daskal takes two of wartime’s most distinctive (and invasive) powers – indefinite detention and targeted killing – and accepts them as normative features of counterterrorism policy everywhere. Critically, the landscape she describes includes the domestic front – a premise never expressly stated by Daskal, but hinted at throughout her paper. For Daskal, the compromise position “recognizes the state’s need to respond to the enemy threat wherever it is found, thus accepting the … view that the conflict follows the enemy.” Thus, an ability to exert wartime powers in areas formerly considered to be outside the “hot battlefield” is central to her compromise.
Indefinite detention
First among these war powers is the authority to detain individuals for prolonged periods without issuing criminal charges. Soon after 9/11, the Bush White House asserted such authority at home, and was met with stiff resistance from elements of the legal community and civil society. The Bush administration detained three Americans in such a manner, and created a tangle of case law in its attempts to garner judicial support for its detention scheme.
As already noted, President Obama took measures to step away from this practice early on. Late last year, though, clear signs emerged that the Obama team was having second thoughts. When Republicans in Congress inserted broad and vague military detention powers into the 2012 NDAA bill, Obama did not oppose them as violations of Constitutional norms, as candidate Obama had in 2008. Rather, he opposed them on the grounds that they could constrain his national security prerogatives.
When the NDAA became mired in congressional debate, Sen. Dianne Feinstein, a Democrat, offered a last-minute amendment to exempt U.S. citizens from the detention provisions of the NDAA. Ultimately, it was the White House – and not Republicans in Congress – who pressured Democrats to vote down Feinstein’s amendment, which they did in significant numbers.
Finally, after signing the NDAA into law, the president issued a signing statement, pledging that his administration would “not authorize the indefinite military detention without trial of American citizens.” Such statements, of course, have little legal value, and do not even serve to bind the president who signs them. While effective as political cover, Obama’s signing statement – in lieu of a veto – betrayed his administration’s true position.
Jennifer Daskal is fully aware of what that position is, and throughout her article is quick to note that her analysis of detention power tracks the current views of the U.S. government. The Obama administration’s theory of detention authority, she writes, “is — with minor adjustments — just as broad as that asserted by the Bush administration."
Targeted killing
For Daskal, the corollary authority to indefinite detention is the power to engage in targeted killing for counter-terrorism purposes. The United States, she urges, should devise a legal regime through which targeted killings can be codified and legitimized. The adoption of such a regime, she writes, would be “consistent with the approach already taken by the United States as a matter of policy."
The policy she is referring to is the practice of using UAV drones to deliver lethal force against individual and material targets around the world. The White House has relied heavily on the use of drone-based weapons platforms in its attacks on al-Qaida operatives overseas. The use of such tactics in a traditional conflict zone is widely accepted and raises few novel issues.
However, in late 2011, a drone-launched Hellfire missile killed U.S.-born al-Qaida member Anwar al-Awlaki in Yemen. Al-Awlaki’s status as a U.S. citizen generated substantial press interest in the administration’s theory of how the government could engage in lethal action against a citizen without a trial, or without due process of any kind. After all, existing case law holds that U.S. citizens overseas are still subject to the full panoply of constitutional rights (with extremely narrow exceptions).
The administration’s public position on this matter turns on the idea that the executive branch itself can offer due process through its own internal deliberations, rather than through an adversarial process. It also hinges on the addition of a number of “limiting factors” that seek to make such actions situation-specific.
Like the White Hosue, Daskal accepts the premise that the state can engage in targeted killing operations under certain circumstances, without regard for geography or citizenship. While she accepts some practical constraints upon the use of this power away from the battlefield, her analysis would tend to authorize its use anywhere, provided that specific criteria are met. As Daskal notes, "Law of war detention and lethal targeting outside a zone of active hostilities should be limited, not categorically prohibited."
Tweaking the formula
Having accepted the major features of the “war everywhere” paradigm, Daskal then attempts to outline the other tenants of her compromise position. The foundation of her compromise essentially rests upon the creation of procedural rules intended to “limit and legitimize” the application of wartime powers.
Daskal’s paper proposes several options for putting such rules into place. One would create a standing panel of national security judges tasked with reviewing – ex parte – executive branch submissions for capture or kill operations. Such operations would have to meet specific limiting criteria, similar to those currently outlined by the administration.
According to Daskal, a judicial review panel is desirable, but not necessary to effectuate substantive oversight. "In the absence of such a system,” she writes, the president should “issue an executive order establishing a transparent set of standards and procedures for identifying targets of lethal killing and detention operations outside a zone of active hostilities." Daskal further notes that the addition of the CIA director and other functionaries to the decision-making process would increase its rigor, and ultimately, its credibility.
Lack of constitutional analysis
Daskal’s background as a human-rights advocate inflects her writing in “Geography” to the extent that she identifies and attempts to address the standard critique of relying on war powers in non-battlefield situations. The paper also contains splashes of comparative international legal analysis, and examines the practices of Israel and other nations, in addition to those of the United States.
Nowhere in Daskal’s writing, however, is there a substantive nod to the major impediment to the implementation of her policy scheme at home – namely, the U.S. Constitution. As noted by Justice Antonin Scalia in his dissent in the Hamdi case, the Constitution simply does not allow indefinite detention without trial, absent a suspension of habeas corpus. In Jennifer Daskal’s view, desired policy appears to trump Constitutional principle.
The future of the executive power debate
Daskal should be given credit for articulating what has been — up to this point — a very quiet reframing of counterterrorism prerogatives by the Obama team. Unlike Daskal, the administration has been hesitant to get into the details of just how broadly it views its powers, or to describe just how expansively it can use them. While it has started to publicly describe its theory of targeted killings, most of its substantive legal memos on this matter are still being withheld from public view.
Likewise, in a recent lawsuit seeking to enjoin the military detention provisions of the 2012 NDAA, government lawyers refused to answer questions about just how expansive the detention powers authorized by the law truly were. Because of this refusal to articulate any limiting framework, Judge Katherine Forrest handed down a preliminary injunction in the case. From the framework that we can see, however, it is perfectly clear that the Obama administration has adopted an expansive view of its own authorities.
Outside of certain legal and policy circles, this transformation has been ignored. The president’s base is, for the most part, unaware that their standard-bearer is operating under some of the same assumptions as his former political antagonist. Likewise, the media has largely failed to subject Obama’s executive claims to the same degree of scrutiny it had reserved for his predecessor.
In this kind of environment, it is important to watch what voices like Daskal’s say. After the tumult of the Bush years, presidential prerogatives are in the process of being institutionalized, and public opinion will have an impact on what becomes normalized and accepted. Daskal carries with her human-rights bona fides that could be used to sway some who would otherwise be critical of broad executive power.
When George Bush occupied the White House, large segments of public opinion tilted decidedly against his actions. Where, we may ask, are those same voices now? To paraphrase T.S. Eliot, the debate over executive power in American may end with a whimper. It is incumbent upon civil society to ensure that this is not the case.
Matt Ehling is a St. Paul-based television producer, documentary filmmaker, and writer. His organization Public Record Media is currently suing the Justice Department to get access to legal memos about UAV drones and lethal force issues.
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