A novelist visits the Trump Presidential Library

On Thursday, 8 June 2023, the Department of Justice indicted former President Donald Trump on charges of willful retention of national intelligence documents, conspiracy to obstruct justice, and lying to the FBI. On Friday, 9 June, the indictment was unsealed. Like many people curious about American politics, I printed out a PDF of the indictment on Friday night and read it a few times over the weekend. Here’s the DOJ’s own version, which has the photographs in color, if you’d like to read it and haven’t yet.

A lot of pixels have been toggled already over the political and legal ramifications, but I found myself thinking about a different angle: If Trump were a character in a novel, what would the scenes recounted in the indictment say about him? Some are quite vivid.

The genre of the indictment is odyssey: banker’s boxes full of presidential papers take a journey into exile, which ends, for some but far from all of them, in an eventual homecoming back into federal custody. Trump helped to pack the boxes in January 2021. When he left the White House, he had them moved to Mar-a-Lago, his Florida resort. The indictment doesn’t say how many boxes there originally were, but I think I count eighty-one in the photo on page 10 of the indictment, which shows them stacked on the stage of a Mar-a-Lago ballroom (the first four rows seem to be two boxes high, and of these, the front row is eleven boxes across, the second row ten across, the third nine across, and the fourth seven across; at the very back of the stage, there also seems to be one stack of three boxes and another stack of four). According to the indictment, the boxes spent January, February, and March 2021 on the ballroom stage.

Why did Trump take so many papers with him when he left the White House? It seems doubtful he meant to read through them. He doesn’t seem like the sort of person who would want to come to a deeper understanding of the past he had just lived through. “He doesn’t really read anything,” said one of the intelligence officials who struggled to keep Trump informed while he was in office. I suspect that very few of the papers were written by him, or even written on by him, in his childlike black-marker all caps. The best that can be said is that the papers happened to him. Or that they constitute evidence of things that happened to him. In the photo on page 14 of the indictment, where a few of the banker’s boxes have spilled open, what’s visible are front pages of the Washington Times, the Wall Street Journal, and the Financial Times; color print-outs of him speaking to the press on a tarmac; the print-out of a webpage with a headline that reads, in part, “honesty about security clearances” (a nice piece of sortes webiana; it could be this article); and a piece of paper redacted with a long black rectangle at the top that obscures what the DOJ calls “visible classified information.” The last document is the kind that has put Trump in legal jeopardy. According to the indictment, this particular one was labeled “Secret” and “Five Eyes,” was dated 4 October 2019, and was concerned with “military capabilities of a foreign country.” Out of 102 documents labeled Secret, Top Secret, and Confidential that the DOJ seized from Trump, the DOJ has itemized thirty-one that it is charging him with illegally retaining, and the DOJ has assigned this particular document the number 8. In an issue of his newsletter Pwnallthethings, Matt Tait has made educated guesses about the specific contents of the thirty-one documents listed in the indictment, though he hasn’t (yet) made headway with #8.

Maybe Trump thought of the documents as trophies. That could be a powerful motivation for a personality like his. After all, what O. J. Simpson went to prison for, in the end, was not murder but the theft at gunpoint of pieces of memorabilia that he felt belonged to him.

Whatever the nature of Trump’s attachment to these papers, it’s safe to say that people close to Trump saw through it. By April 2021, some of the boxes had been put in Mar-a-Lago’s business center, and on 5 April 2021, according to the indictment, “Trump Employee 1” asked “Trump Employee 2,” believed to be a woman named Molly Michael, if it would be okay to move the boxes out.

“Woah!!” Molly Michael replied, using the internet’s preferred spelling. “Ok so potus specifically asked Walt for those boxes to be in the business center because they are his ‘papers.’ ”

Note the scare quotes. In another exchange later the same day with Trump Employee 1, Michael’s contempt for the “papers” is even more pronounced. When Trump Employee 1 asks if he can put into storage a few things stored in the business center that aren’t paper, Michael replies, “Yes, anything that’s not the beautiful mind paper boxes can definitely go to storage.”

“Beautiful mind paper boxes.” It has been suggested that she is alluding to a scene in the movie A Beautiful Mind in which the hero, a mathematician who has descended into schizophrenia, is revealed to have covered the walls of his study with newspaper clippings and connected them with dark lines while diagramming his conspiracy theories. But I think it’s more likely that she’s using the movie title as shorthand to refer to Trump’s habit of praising his own intellect; he has famously called himself as “a very stable genius” who has “a very good brain.” Michael could be deploying both possible meanings, of course. In any case, she’s not fooled.

I don’t think anyone is ever fooled by Trump. The Dunning-Kruger effect notwithstanding, I think even his ardent supporters know he isn’t literate or well informed about the world, and that his only accomplishments are in the dark sports of bullying, misleading, and emotional manipulation. They like it that he’s mediocre and seethes with grievance about it; that he wasn’t even able to live off an inheritance in a humane, damage-limited way; that despite being given great wealth and opportunity, he has remained small. The better to represent resentment with, my dear. The psychoanalyst Wilfrid Bion wrote about “the hatred of learning by experience,” that is, the wish that people harbor for magical, instant solutions, for shortcuts that bring the rewards of development without any of the tedium and effort that are customarily required: the dream of becoming rich by winning the lottery, of becoming strong by joining an armed militia, of becoming intelligent by having intelligence reports given to you. In Trump, the hatred of learning by experience had an impossible triumph. He wouldn’t mean the same thing if he had become the leader of the free world by working for it.

Trump’s supporters probably like it, therefore, that he doesn’t understand how the documents he collected function in a bureaucracy, and that he is willing and able to use his ignorance to distort the testimony that the documents do offer. For example, on page 15, the DOJ’s indictment quotes from a meeting at Trump’s Bedminster club on 21 July 2021 between Trump, a writer, a publisher, and two Trump staffers, one of whom, believed to be Margo Martin, recorded it. At the time of the meeting, Gen. Mark Milley, formerly chairman of the joint chiefs of staff, had recently told the press that during Trump’s last days in office, he had taken steps to stop any attempt by Trump to start a war. During the interview at Bedminster, Trump brandishes a plan to attack Iran that was prepared by the Defense Department, claiming that the plan was Milley’s and that the document detailing it proves that it was Milley not Trump who flirted with war. “This totally wins my case, you know,” Trump says. In fact, the plan had been drawn up earlier, when the chair of the joint chiefs was Joseph Dunford, and even if it had been produced under Milley’s chairmanship, it’s the responsibility of the Defense Department to draw up such contingency plans—there are almost certainly detailed plans for an invasion of Canada on a hard drive somewhere in the Pentagon at this very moment—and there’s nothing exceptional about the document itself. What’s exceptional is that it ended up in Trump’s hands, because that means that, while Trump was President, he asked to see it. In other words, if the document is evidence of anything, it’s evidence that Milley was right to be anxious that late in his regime, Trump might have been considering war. (This recorded conversation more or less proves the Justice Department’s case against Trump, by the way, because during it, Trump acknowledges that “This is secret information,” acknowledges that “as president I could have declassified it,” and acknowledges that “Now I can’t [declassify it], you know, but this is still a secret.” As the indictment drily comments, “At the time of this exchange, the writer, the publisher, and TRUMP’s two staff members did not have security clearances or any need-to-know any classified information about a plan of attack.”)

Though in this one instance, Trump seems to have tried to use a classified document as a political weapon, the primary meaning of the papers seems to have approached the sentimental. On 24 June 2021, Trump’s valet, Walt Nauta, texted Molly Michael two photos from the Mar-a-Lago storage room, showing banker’s boxes spilling their papers onto the floor. Two texts came from Michael’s phone in reply: “Oh no oh no” and “I’m sorry potus had my phone.”

“Oh no oh no”: an immediate, almost instinctual response. Was the injury inflicted on Trump by the sight of the spilled papers so sharp that he forgot whose phone he was holding? Or maybe he’s just in the habit of casually overwriting the identity of those around him. In the second text, Michael distances herself from the expression of dismay that Trump sent through her phone. She wants it to be clear to Nauta that she, at least, knows it’s not a tragedy if a box neglected in a storeroom has tipped over. Solicitude for things is embarrassing, especially when the things are being used to prop up vanity. Or maybe what’s embarrassing is when vanity so baldly takes a place in the psyche that should be reserved for emotions felt for people. In a text exchange reported on page 23 of the indictment, a “Trump family member,” probably Trump’s wife, Melania, also shows little patience with Trump’s investment in the boxes. “Not sure how many he wants to take on Friday on the plane,” this family member writes on 30 May 2022. “We will NOT have a room for them. Plane will be full with luggage.” The papers are just stuff, to the people around Trump. In a kind of self-defense, his intimates deny the papers have any larger import.

They know he doesn’t understand the papers, that the papers have no meaning for him beyond the greatness he thinks they reflect on him. In January 2022, Trump returned 15 boxes of papers to the National Archives, which, after the archivists found classified material in the boxes, triggered the DOJ’s investigation—and if you’re keeping score, left about 66 boxes in his keeping. Between 23 May 2022 and 2 June 2022, Nauta moved roughly 64 boxes from the Mar-a-Lago storage room to the rooms in Mar-a-Lago where Trump and his family live, at Trump’s request. Then, at around lunchtime on 2 June, Nauta and another employee returned 30 boxes to the storage room, in anticipation of a visit from “Trump attorney 1,” who has been identified as Evan Corcoran, who was arriving that afternoon to look through the boxes for government documents marked as classified, in response to a subpoena from the Department of Justice.

For the DOJ’s purposes, what’s telling here is that 34 boxes were withheld from Corcoran, deliberately and at Trump’s direction, so that Corcoran was never able to inspect them. For an understanding of Trump’s relationship to the papers, however, it’s perhaps also telling that Trump thought he could meaningfully sort through so many boxes in just a few days. Of the 64 boxes brought to Trump before Corcoran’s visit, 50 were brought to him on 30 May, and 11 on 1 June. In less than three days, therefore—and he probably didn’t spend the entirety of any of the three workdays on the task—Trump made a meaningful selection from more than sixty boxes of papers? On what basis? If he had been scanning only for security markings, maybe he could have grabbed most of the papers so marked, but if that had been his goal, why not let Corcoran see everything? No, Trump’s time with the papers was more personal. “I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes,” Trump told Corcoran, according to Corcoran’s notes. What kind of selection was Trump making? Was he deciding which pages he could bear to surrender? There’s a hint here that he felt some mystical connection to the papers. During an earlier sorting, in January 2022, in advance of Trump’s surrender of fifteen boxes to the National Archives, Nauta seems to have helped Trump with the sorting; toward the end of the process, Nauta had to ask a colleague for “new box covers,” explaining that “They have too much writing on them…I marked too much.” The markings probably had to do with the contents of each box; it’s possible that the markings made it dangerously obvious that Trump and Nauta knew they were playing with classified material. In late May and early June, however, Trump seems to have done his sifting alone. Maybe his work was sped up by his having previously worked through the boxes with Nauta in January. Still, not even a crackerjack professional archivist at the top of his game could process more than sixty banker’s boxes of paper in less than three days. At best what Trump was doing, I suspect, was childish magic. A sorting by touching: one for me, one for them.

The odyssey of Trump’s papers doesn’t come to a neat conclusion. The indictment reports that on 3 June 2022, “NAUTA and others loaded several of TRUMP’s boxes along with other items on aircraft that flew TRUMP and his family north for the summer.” Presumably these boxes contained the papers most precious to Trump. Had these boxes returned south by the time the FBI searched Mar-a-Lago on 8 August 2022? At the time of the raid, Trump was in the New York area. If the precious papers were with him then, they would have escaped the FBI’s trawl. Perhaps they were seized by the FBI in a search of a Trump property in New York or New Jersey that hasn’t yet been reported. But they might still be in his hands.

Behind closed doors

On Thursday morning, 5 April 2012, I joined a group of writers and scholars who had been asked to tell the New York Public Library what we thought of the Central Library Plan, which I’ve recently been criticizing on this blog. There were eight other writers and scholars on the panel besides me; NYPL president Anthony Marx and research-library director Ann Thornton represented the library. Some of you may have been wondering why I haven’t reported the results of this meeting sooner. Alas, there’s a problem: I goofed.

I arrived at the meeting expecting to write about it afterward publicly. It’s a journalistic convention that if a public official knows you’re a journalist and you’re talking about public business, the comments are on the record, unless another agreement has been worked out before hand. So sure was I of my rights that I committed journalistic boner #1: I didn’t ask explicitly, at the start of the meeting, whether it was on the record. (I didn’t think the comments of my fellow panelists were on the record, by the way, only those of the library’s officers.) Then I compounded my error with journalistic boner #2: I asked for the sources’ retroactive permission. On Thursday evening I wrote an email to Anthony Marx and Ann Thornton, asking whether they had intended for their remarks to be on the record. On Friday afternoon, Anthony Marx wrote that he would abide by the understanding of those panelists who preferred to keep the meeting off the record (even though I hadn’t asked for permission to quote the remarks of those, or any, panelists). I tried to repair my gaffes on Monday morning, by proposing to Anthony Marx and Ann Thornton that I re-interview them, apart from the rest of the panel, in order to ask the same questions all over again, this time explicitly on the record. But Ann Thornton replied at the end of the day that she is away for the week and that Anthony Marx is “fully booked.”

So that’s why you haven’t heard from me about what happened at Thursday’s advisory meeting. My apologies for my boneheadedness. In the aftermath of the meeting, I have sent several follow-up questions to the administrators, asking for clarification about numbers given to the panel, especially where they seemed discrepant with other sources, and in the email in which she declined a re-interview, Ann Thornton wrote me that she hoped I would find answers to my questions in the library’s “next round of communications.”

Judging by this experience, I don’t think anyone should expect this advisory panel to have much investigative authority or capacity. I’ve pressed as hard as is consonant with civility, and I’m afraid I don’t have much to show for it publicly. I’ve been given private answers to some of my questions, but I worry that unless the answers are offered to the public, there’s no way to recruit outsiders to help fact-check them, and no way to hold the library accountable later for promises implicit in its reassurances.

The paradoxical thing about all this is that I thought the library made a stronger case in its Thursday meeting than ever before. The conflict over permission to quote has thrown me more or less back into my former skepticism, however. I’m trying to make an effort to see the problem apart from my personal frustrations here, but it may take me a few days. At the moment I’m feeling a little played.

Though I can’t share the library’s answers, I can still share my questions. Here’s a list that I circulated before the meeting:

Questions about the Central Library Plan

What’s the Central Library Plan for? What problem is it designed to solve? Isn’t there any way to solve it without jeopardizing the research mission of the library?

Why doesn’t the library consider alternative ways of building a new circulating library? For example, why not try to do with the Mid-Manhattan site something like what the Museum of Modern Art did when it expanded a few years ago? If there’s concern about shuttering the circulating library during renovation, why not use SIBL as a temporary site?

How much does the library expect to make by selling the Mid-Manhattan Building? By selling SIBL? How much would a gut-renovation of the Mid-Manhattan Building cost? The CLP would require the library to build much more space at its New Jersey storage facility. How much will that cost?

The library claims that the CLP will reduce operating expenses, but it also claims that the CLP will increase the number of square feet open to the public. Where exactly would the savings come from, then? Will services be reduced? Will staff be let go? If so, in which areas?

Is there an unused second floor of storage space in the Bryant Park Stack Extension? If so, why isn’t it being used? How much would it cost to make that space usable?

The Central Library Plan was conceived in 2008, when many hoped that Google Books would be able to make digital proxies of the books in the world’s libraries. But a federal judge struck down the Google Books deal last year, and copyright protection will keep the vast majority of the world’s books out of digital circulation for the foreseeable future. Shouldn’t the library adjust its plans and retain as many physical books onsite as it can?

The library’s research collection of books is unique in the world in size and scope. But access to computers is spreading rapidly through society; most coffee shops come with Wifi access. Isn’t it risky to shift the library’s focus from books to computer access? Shouldn’t what’s unique about the library remain the core of its identity?

When the library first introduced its Recap storage facility in 2000, books were delivered to 42nd Street within 24 hours. But delivery time soon slipped to 48 hours, and now many users report that it takes three to five days. Why is it reasonable to expect that the library will do any better in the future? Even if delivery speed does improve in the short term, won’t it be sacrificed the next time there’s a budget crisis at the library? (As I understand it, bar-coding isn’t likely to speed up delivery from offsite storage, because all books offsite have already been bar-coded. It was only books still at 42nd Street that until recently hadn’t been.)

The library says that it’s concerned that the 42nd Street stacks don’t adequately protect books. But Scott Sherman reports that in months and months of conversations that he had with NYPL staff members, in preparation for his article about the library for The Nation, no one mentioned to him any concerns about the stacks. Why is the library suddenly concerned? Exactly what standards is it concerned about? How urgent are these issues? Are there other ways to resolve them?

As part of the CLP, the library has suggested it will offer new workspace for writers and new funds for buying books and paying the salaries of bibliographers. But it isn’t necessary to remove 3 million books from the library in order to find room for 400 reserve shelves, which would only hold about 12,000 books. Can’t spaces like South Court or the former Slavic and Middle Eastern divisions be repurposed as writers’ spaces without any damage to the library’s research mission, and wouldn’t it be more thrifty to raise funds for books and for librarians’s salaries directly, rather than via a $350-million detour?

Update, April 10: In his remarks just now on the Leonard Lopate show, Anthony Marx put on the record a few facts and numbers that he had given to the advisory panel on Thursday:

  • The estimated cost of renovating the Mid-Manhattan Library is $150 million. (I’d guess that it’s probably not an accident that the City of New York is willing to contribute exactly this amount toward the Central Library Plan.) Renovating the building would probably require closing it for two years.
  • There are two floors to the Bryant Park Stack Extension, the storage facility underground and next to the 42nd Street building. Each floor is capable of holding 1.2 to 1.5 million volumes, but only one is currently outfitted for use. It would cost $20 million to outfit the second floor, and Marx points out that because an institution may only spend 5 percent of its endowment, a $20 million expenditure of capital represents a decrease of $1 million in yearly operating funds. My opinion: Short of rethinking the Central Library Plan in its entirety, this is probably the only element where a protest by scholars could win a significant compromise, and there needs to be significant debate about it.

Further update, April 11: In his essay on the Huffington Post blog, which was just brought to my attention, Anthony Marx puts on the record a little more information that was released at the advisory panel. He reveals that there will soon be Saturday delivery of offsite materials, and it will soon be possible to make offsite requests directly from the online catalog. He also seems to be committing the library quite strongly to keeping the research facility open until 11 pm and to providing 400 desks with reserve shelving for researchers.

Emerson on Occupy Wall Street

It is a sign of our times, conspicuous to the coarsest observer, that many intelligent and religious persons withdraw themselves from the common labors and competitions of the market and the caucus, and betake themselves to a certain solitary and critical way of living, from which no solid fruit has yet appeared to justify their separation. They hold themselves aloof: they feel the disproportion between their faculties and the work offered them, and they prefer to ramble in the country and perish of ennui, to the degradation of such charities and such ambitions as the city can propose to them. They are striking work, and crying out for somewhat worthy to do! . . .

Society, to be sure, does not like this very well; it saith, Whoso goes to walk alone, accuses the whole world; he declareth all to be unfit to be his companions; it is very uncivil, nay, insulting; Society will retaliate. Meantime, this retirement does not proceed from any whim on the part of these separators; but if any one will take pains to talk with them, he will find that this part is chosen both from temperament and from principle; with some unwillingness, too, and as a choice of the less of two evils; for these persons are not by nature melancholy, sour, and unsocial,—they are not stockish or brute,—but joyous; susceptible, affectionate; they have even more than others a great wish to be loved. . . .

These exacting children advertise us of our wants. There is no compliment, no smooth speech with them; they pay you only this one compliment, of insatiable expectation; they aspire, they severely exact, and if they only stand fast in this watchtower, and persist in demanding unto the end, and without end, then are they terrible friends, whereof poet and priest cannot choose but stand in awe; and what if they eat clouds, and drink wind, they have not been without service to the race of man.

From “The Transcendentalist, a Lecture Read at the Masonic Temple, Boston, January, 1842.”

Visiting Liberty Plaza

A pink unicorn tricycle, Liberty Plaza, NYC, 4 October 2011

To spend one’s days and nights in a New York City park is expensive. At a minimum, one gives up running hot water, protection from rain and cold, convenient access to a bathroom, and most forms of privacy. I’ve done no more than visit the Occupy Wall Street protests in Zuccotti Park, whose older name of Liberty Plaza the protesters have reclaimed, and I imagine that the ones who actually spend the night there know who each other are. Maybe the willingness to lose safety and comfort are proof, in one another’s eyes, of a level of commitment. Maybe the loss underwrites a trust in one another that makes possible the group’s persistent faith in the ideals of openness and democracy.

During my two visits, I wasn’t wearing my reporter’s cap, and I’m not much of a joiner. That left me the role of tourist. When I visited on Thursday, September 29, haphazard eavesdropping seemed to pick up repeatedly the earnest, necessary, and tedious conversations typical of groups of people trying to decide how to make decisions—conversations that tend to become especially byzantine in groups suspicious of hierarchies. But the openheartedness with which people were giving themselves to these tedious conversations was winning, and the protesters’ physical innovations to group interaction were ingenious and looked fun. Since electric amplification is forbidden in the park, the protesters have adopted what they call “the people’s mike”: at the end of every phrase, a speaker pauses while audience members who were able to hear him repeat the phrase for the benefit of audience members who couldn’t. Lest this practice render listeners too fawningly imitative, audience members all the while talk back to the speaker through a variety of silent, waggling gestures: jazz hands pointing upward signify approval, a pinched forefinger and thumb suggest that the speaker cut his message short, and so on. Watching this new semiotics, I found myself wondering, Why haven’t people been doing this all along? It’s as if it took the Facebook generation to make the most of human presence. People of every description were photographing, filming, and recording. Policemen stood around the periphery, gazing into the crowds, apparently looking for alcohol, which the protesters have forsworn, and tents, which city law forbids. The multiplicity of surveillance triggered a little paranoia in me, and I wondered what sort of databases my visage might be appearing in.

When I visited again today, Tuesday, October 4, the food table looked better stocked, but the sleeping area looked more bedraggled. The photographers, meanwhile, seemed more benign; I watched a young man interview a protester on video, and when she asked, at the end, who he worked for, he explained that the video was just for his Facebook page; he added that he was from Tennessee. Whereas, on my earlier visit, strangers had greeted me and asked what I might be able to contribute, today the people who struck up conversations with me seemed to have more-focused agendas. A woman dressed as Marie Antoinette tried to sign me up for wind-powered electricity. A camera crew for Al Jazeera asked me to pretend to be reading an issue of the protesters’ newspaper, the Occupy Wall Street Journal, for the sake of some B-roll that they were shooting. I actually did want to read it, and the outreach table had given away all its copies, so I pretended. The camera guys were willing to let me keep the prop.

Is this the revolution? I haven’t gone to a march yet, and haven’t yet attended the protesters’ twice-daily town meeting, which they call General Assembly, so I’m hardly in a position to say. Some critics have pointed out that the finance companies once associated with Wall Street are now for the most part headquartered in midtown, but the criticism seems to miss the point: Wall Street, as a location, is a symbol. The location of Occupy Wall Street, on the other hand, is peculiarly literal. The protest is happening in a particular place; online, one may observe it happening, but one can’t virtually participate; it isn’t clear whether the improvised infrastructure could be transferred to another location, let alone seeded to many locations.

Other critics have objected that the protesters don’t seem to know what they want—an objection harder to dismiss. Indeed, the Adbusters poster that launched the movement asked the koan-like question, “What Is Our One Demand?” Similarly, the “Declaration of the Occupation,” which the New York General Assembly adopted unanimously on September 29, lists grievances but proposes no remedies—or rather, no specific remedies; it does exhort people to “create a process to address the problems we face, and generate solutions accessible to everyone.” But details matter in politics; it’s only through negotiation of details that compromises can be reached. Moods—even good moods—pass, and New York City is going to get colder before it gets warmer. Before winter comes, I hope the protesters find a way to disperse their movement without dissipating it.

Is drone war just?

On Monday, December 13, I attended a panel discussion on “Drones and Targeted Killings Abroad: What is Legal and Who Decides?” It was hosted by the Federalist Society, at the Cornell Club in Manhattan, and the panelists were Ben Wizner of the ACLU and Michael W. Lewis of Ohio Northern University Law School. The moderator was P. Kevin Castel, a U.S. district court judge.

I was led there by my having complained to my friend Wesley Yang that there has been alarmingly little debate in America about whether killing by remote-controlled drones is ethical—whether it’s philosophically consistent with just-war doctrine. Wesley has been researching and writing about the high-stakes legal debates associated with the war on terror—see his recent profile in New York Magazine of Evan Kohlmann, the government’s most prolific terrorism expert—and he invited me—challenged me?—to come along with him to the panel.

The debate took place in a mustard yellow conference room. The Federalist Society is well-known as a conservative, strict-constructionist legal group, so it wasn’t too surprising to find a fair number of older white men in dark suits, flag pins in their lapels. While I was raiding the cheese-and-crackers table, one such attendee, observing a pile of knives and an absence of forks, volunteered that “The caterer must be a lefty.” It transpired that the quiet man sitting beside me during the discussion was Michael Mukasey, George W. Bush’s second attorney general; his identity was revealed to me at the end of the evening when people of the left and of the right converged to have their pictures taken with him.

Introduction by Judge Castel

Jane Mayer outlined the facts about America’s drone program and raised important ethical questions about it in “The Predator War,” published in The New Yorker on October 26, 2009. In his introductory remarks, Judge Castel seemed to draw on Mayer’s article. He noted that the U.S. has two drone programs. The first, run by the military, augments the work of troops on the ground. Castel suggested that the drones were controlled remotely with joysticks and monitored on flat-screen televisions, as the New York Times has also reported. The second program, Castel continued, “is said—I don’t know—to be run out of Langley, Virginia, by the C.I.A.” (Castel was careful throughout the evening to specify that the information he was presenting was secondhand, acquired by him from journalistic reports only, and that any opinions he might voice were to be understood not as representations of his personal judgment but merely as provocations, potentially fictional, intended only to stir up debate. As it happens, in a recent Guardian article about the recall from Pakistan of the CIA’s station chief, whose cover was blown last week by a Pakistani man angry over drone strikes that killed his father and brother, Declan Walsh reports that the CIA now manages its drones out of its Islamabad office rather than Langley.) Castel added that “It’s been said that some of the personnel will wear flight suits” while operating the drones. (This may not be true, however; Charlie Savage has reported for the Times that CIA drone operators do not wear military uniforms, in apparent contravention of the Geneva conventions, an awkward state of affairs that not long ago obliged the Obama administration to rewrite its military commission rules at the last minute while negotiating a plea bargain with Omar Khadr, a former child soldier and Guantanamo Bay detainee, downgrading the charge against Khadr from war crime to a domestic law offense, in order “to avoid seeming to implicitly concede that the C.I.A. is committing war crimes.”) Castel repeated the vignette that begins Mayer’s New Yorker article—the story of the August 2009 remote killing of Baitullah Mehsud, leader of the Taliban in Pakistan, while he was reclining on his roof receiving an intravenous drip. The United States and Pakistan are happy to have got rid of Mehsud, but Castel noted that the killing is thought by some to have taken place on the CIA’s sixteenth attempt to strike Taliban leader. (“During this hunt,” Mayer wrote, “between two hundred and seven and three hundred and twenty-one additional people were killed, depending on which news accounts you rely upon.”) Given such a high rate of collateral damage, can the killing be considered a success?

Castel cited data provided to Mayer by the New America Foundation, according to which Obama in his first nine months ordered as many drone strikes as Bush had during his last three years. (More up-to-date statistics are available on the New America Foundation’s website and in its February 2010 report on drone warfare; New America now claims that 45 drones strikes were ordered by the Bush administration and that the Obama administration, by contrast, ordered 51 strikes in 2009 and another 113 so far in 2010.)

Castel raised a number of questions: Do drone bombings reduce casualties of innocents by allowing operators to wait for certain identification of their target and a minimum number of bystanders? Are they a necessary means of war? Do they change the nature of war in an undesirable way, such that war no longer requires the virtues of courage and honor? (A June 2010 United Nations report warned that the U.S. drone program licensed a “‘PlayStation’ mentality to killing.”) Are any laws broken if the individual targeted by a drone is a United States citizen? If judges have to sign warrants before the government can eavesdrop on U.S. citizens, why don’t they have to vet the government’s requests to assassinate them? Are any laws being broken when the drones kill people outside of Afghanistan—that is, outside the theater of war as conventionally understood? As a closing sally, Castel raised the prospect of “nanodrones”—remote-controlled killing devices small enough to slip into a window—which reminded me of Neil Stephenson’s sci-fi novel The Diamond Age.

Castel then introduced Ben Wizner of the ACLU’s National Security Project, who helped to represent Nasser al-Aulaqi in a recent lawsuit against the Obama administration, which in April 2010 listed as an approved target for killing al-Aulaqi’s son, Anwar al-Awlaki, a cleric with dual U.S. and Yemeni citizenship alleged to have incited terrorist attacks. The al-Aulaqi/al-Awlaki case was dismissed earlier this month, when federal district court judge John W. Bates declared that the father lacked sufficient legal standing to challenge the government’s targeting of his son. Castel then proceeded to introduce Michael W. Lewis, a law professor at Ohio Northern University, who before taking up law served as a pilot for the U.S. Navy during the First Gulf War and the run-up to it.

Ben Wizner’s remarks

“In what circumstances can Barack Obama order the death of U.S. citizens?” Wizner began. He noted that the ACLU chose to assist al-Awlaki’s father in his lawsuit because the Obama administration had provided a legal opportunity by leaking to the media earlier this year its decision to target al-Awlaki for killing—a moment of transparency that the administration later backpedaled from in court, when it invoked the privilege of state secrecy in efforts to have the case dismissed. Wizner asserted that the recent dismissal of the case had been on standing rather than merits—that is, the judge ruled only that al-Awlaki’s father did not have an interest in his son’s welfare strong enough to give him the right to bring the matter to court; the judge did not say anything about the conditions that might give the U.S. government the right to kill one of its citizens. In fact, Wizner continued, the judge noted that the case raised “stark, and perplexing, questions,” such as

Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization?

Torture, Wizner said, is always illegal, but targeted killing is sometimes legal. According to Wizner, the ACLU does not contend that the government needs to obtain warrants before conducting targeted killings, nor does the ACLU believe that courts should be involved in real-time decision-making. Their contention is merely that such killings are only lawful in a theater of war and against an imminent danger. The Obama administration hasn’t disclosed its definition of lawful killings, but since it has placed individuals on its target list for months at a time, its standards must be more permissive than those proposed by the ACLU. Wizner observed that unsupervised powers are almost always abused in the long run, and that a policy of taking the government’s word for the prudence and wisdom of its actions hasn’t always worked out: the Bush administration claimed that it was only detaining dangerous terrorists at Guantanamo Bay, but the majority, it turns out, are far less scary than advertised.

Through the al-Awlaki lawsuit, the ACLU was asking the government to disclose its standards for remote killing. “Due process,” Wizner said, “requires at a minimum that citizens be put on notice as to when they could be put to death.” He noted that the Israeli government’s targeted-killing program had been challenged in court by human rights groups there, and that the Israeli Supreme Court had ruled that lethal force could be used by the government against individuals, but not for retribution, not if arrest or another lesser intervention could solve the problem, and not merely on the basis of membership in a group. The Israeli Supreme Court required that every instance of targeted killing be followed by a post-hoc investigation.

Why, Wizner asked, can’t the U.S. also make explicit its legal standards? The Obama administration has set no limits so far to its power to kill specific individuals, he maintained. The administration has not said whether the killings are permissible only when a threat is imminent, and if so, how imminent. Wizner suggested that the lack of clarity about the U.S. policy might help to legitimize targeted killings by other nations, whose ethical standards and target lists might not be palatable to Americans. In March 2010, Harold Koh, legal adviser to the State Department, defended the Obama administration’s targeted-killing program as justifiable as a matter of national self-defense; Koh claimed that the killings by drone were being conducted in accordance with the just-war principles of distinction (that is, they target only military personnel and equipment, not civilian ones) and proportionality (that is, they don’t kill more civilians incidentally than the military target is worth). Wizner granted that Koh’s argument might hold in its broad outlines, but Wizner insisted that Koh had not revealed enough details to enable anyone outside the Obama administration’s inner circle to judge whether the policy was in fact justifiable.

What limits, if any, can be put to the use of military force? Wizner asked. Can a U.S. citizen be killed in Yemen, with which the United States is not at war, as well as in Afghanistan, where the United States has acknowledged it is waging war? Is an organization like Al Qaeda in the Arabic Peninsula (AQAP) covered by the Authorization for Use of Military Force Against Terrorists (AUMF), the declaration of war passed by Congress a week after 11 September 2001, even though AQAP did not exist at the time and had nothing to do with the September 11 attacks? In closing, Wizner quoted the Israeli Supreme Court: “It is when the cannons roar that we especially need the laws” (a flip of the more familiar, much-abused Ciceronian tag).

Michael W. Lewis’s remarks

Lewis began by differentiating what he called the “law enforcement standard” from the “law of armed conflict standard.” In law enforcement, you’re only allowed to kill someone who poses an imminent threat. In war, however, you’re allowed to kill your enemies whether or not they pose an immediate threat. In the al-Awlaki lawsuit, Lewis averred, the ACLU was attempting to apply a law-enforcement standard to an armed-conflict situation. Furthermore, Lewis continued, the laws of war don’t recognize geopolitical borders as limits to military endeavor, and the ACLU’s advocated position would create sanctuaries behind international borders where none had originally existed.

The laws of war, Lewis summarized, distinguish civilians and combatants. Combatants are only recognized as such if they belong to an organization that enforces the laws of war; in the American army, for example, a soldier who gratuitously kills an Iraqi civilian may be tried by an American court martial and imprisoned. Balancing this liability is something called the combatant’s privilege: so long as combatants do not violate the laws of war, they are immune from prosecution for arson, murder, or damage to private property.

Anyone not a combatant is a civilian, and according to the Geneva Conventions, civilians may never be targeted in a military operation. But civilians also may never take part in armed conflict; if they do, they become targetable. By directing the actions of Nidal Malik Hasan (the Fort Hood shooter) and Umar Farouk Abdulmutallab (the attempted underwear bomber of Christmas 2009), al-Awlaki crossed the line, Lewis said, and rendered himself a legitimate target of lethal force.

What’s more, Lewis continued, crossing borders in pursuit of an enemy has traditionally been an accepted practice during wartime. In pursuit of FARC, the Colombian military has crossed into Ecuador; in pursuit of Hezbollah, the Israeli military has crossed into Lebanon. Neither incursion is considered a violation of the laws of war. (Asked during the question-and-answer period later about the controversy over American forces moving into Cambodia during the Vietnam War, Lewis argued that the scandal was not on account of the border crossing, but because the facts of the war were being kept secret from the American public.)

If a neutral country finds itself the host of a person engaged in hostilities with the United States, Lewis maintained, the country need not grant the United States permission to enter its territories in pursuit of him. But if the country wishes to maintain its neutrality, it must deny that person harbor. Yemen, where al-Awlaki is thought to reside, has in fact chosen to act as an ally, Lewis noted—referring, with a smile, to a State Department cable recently released by Wikileaks, which reveals that Yemen’s president promised the head of U.S. Central Command in January 2010 that he would keep his people in the dark about the American bombing missions against AQAP. (“We’ll continue saying the bombs are ours, not yours,” said Yemen’s president.)

As a matter of strategy, Lewis argued, granting terrorists political sanctuary was tantamount to giving them the initiative—allowing them to choose the next battlefield. It was, he insisted, to turn international law upside-down. (Lewis has further elaborated his support of the Obama administration’s targeted-killing policy in a paper posted on the Federalist Society’s website.)

Discussion

In the questions and answers that followed, the discussants made further interesting points, but this post is already rather long, and perhaps I should limit myself to relating a few of them in the course of sorting through some of my own thoughts.

When in the past I have read about the Geneva Convention’s definition of combatants, the emphasis has always seemed to be on the requirement that combatants wear an identifiable uniform—a requirement that has always seemed a little arbitrary to me, especially when used to justify the indefinite detention of people who were volunteer fighters from impoverished regions, where the purchase of a uniform may have been a relative luxury. I found more ethically convincing Lewis’s emphasis on the requirement that combatants belong to an organization that enforces distinction and proportionality in the waging of war. That said, unless I’m missing something, I’m not sure the difference between a lawful and an unlawful combatant is pertinent here. Lewis is arguing for the government’s right to kill combatants of either kind, and the legal point at issue seems to be whether the killings may take place in territory outside the theater of war. It doesn’t seem relevant that someone like al-Awlaki, by failing to belong to an armed force that obeys the laws of war, may have forfeited his right to the protections afforded by the Geneva Convention to prisoners of war.

Toward the end of the debate, Lewis said, almost as an aside, “I don’t see any difference, by the way, between a drone and a manned aircraft.” To my surprise, Wizner nodded. (For the record, I don’t know for certain whether he nodded in agreement or merely to express something like, ‘I recognize that argument,’ but it seemed to me that Wizner was signaling agreement.) I see now that Koh made a similar claim in his March 2010 remarks:

There is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict—such as pilotless aircraft or so-called smart bombs—so long as they are employed in conformity with applicable laws of war.

I see the force of the claim. It no doubt seemed unchivalric when swords were first superseded by gunpowder, but the point of war is to defeat the enemy while suffering as little injury oneself as possible. So the problem with drone killing isn’t the cocoon of safety around the person holding the joystick. That doesn’t mean there isn’t a problem with drone killing, but it does mean that some of my horror over the technology may be a little sentimental.

I was also surprised, during the question-and-answer period, to hear Lewis concede that he was comfortable with the proposal of “some form of post-action review” of targeted killings. It surprised me even further when he said that “the guys in Langley bother me, because they’re in Langley. Whether there’s law-of-war training in the CIA, I don’t know.” In other words, Lewis was worrying whether the CIA’s operators might themselves be unlawful combatants—a question that concerns me rather more than the question of whether al-Awlaki is one. When an American soldier goes rogue, he is court-martialed. What happens to a rogue CIA officer? No doubt it’s something unpleasant, or so one hopes, but the secrecy of the organization may make it all but impossible to verify whether CIA killings are in compliance with the laws of war. Given the CIA’s propensity in recent years for kidnapping and torture—of the innocent as well as the probably guilty—one isn’t disposed to take their good behavior on trust.

Lewis welcomed post-action review and was concerned by the secrecy shrouding the CIA’s involvement; Wizner did not object to targeted killings without prior judicial review. If the two of them were representative of informed political opinion, I found myself wondering, might it be possible for Congress to agree on some legislation? Surely the soldiers operating these devices would prefer to know for certain when they were and when they weren’t committing war crimes.

On further consideration, this fantasy began to seem a little overoptimistic on my part. The trouble is the chasm between the law-enforcement model and the armed-conflict model. Should terrorists be treated as criminals or as enemy soldiers? The great difference between these paradigms may be related to my niggling sense that there is something wrong with drone killing, even if it’s not the remoteness of the attack. Maybe killer drones upset the balance of power between individuals and governments by making it easier to kill a specific person—by making war microlocal. It is accepted that in war a certain number of innocent bystanders are killed. In law enforcement, however, any death of an innocent is an outrage. Why do we allow soldiers to kill the “wrong” people in relatively high numbers but not police officers? Perhaps it’s because we distinguish between peace and war, and we understand war to be a temporary state marked by conflict and chaos, in which a government uses force to accomplish broad aims such as taking control of a region. Under such conditions, we are willing to accept that the use of force may be imprecise. We understand that being at war is different from being at peace. Lewis’s concern about crossing borders is, I think, a red herring. If FARC’s soldiers move into Ecuador, then I think we understand that in their retreat, FARC’s soldiers trail the boundaries of the theater of war after them. The trouble is, what happens if a few of FARC’s leaders abruptly surface in Madrid? If, in such a case, the Colombian military were to start blowing up the FARC leaders’ apartments, it would be reasonable of Madrid’s citizens to object.

One of the benefits that people expect from government is personal security from attacks by government itself. (And protection from other governments; Madrileños expect that Spain will not attack them and that Spain will protect them from Colombia if Colombia tries to—and from FARC, for that matter.) The social contract is understood, at least in some strains of political philosophy, to be a haven from the state of war. If an individual may be killed by his government on its say-so, without judicial review before or after his killing, there is no haven from the state of war. In fact, security from such attack is so fundamental to well-being that a person vulnerable to it might be thought of as lacking a government at all. It is no remedy if a government merely promises that it will only execute dangerous enemies to social order. Citizens need to be able to feel confident about the government’s epistemology; they need to be able to challenge the government’s identification of enemies before the fact, or (less reassuringly) they need to be able to punish after the fact government officials who turn out to have been in error. A case as celebrated as al-Awlaki’s is not where the trouble is likely to lie; given the stir about him, the governments of the United States and Yemen have probably been obliged to think long and hard about the certitude of the evidence against him. (Still, to say a word for the criminal model: if Yemen’s president is willing to wink while the U.S. bombs terrorists within Yemen’s borders, can’t he bring himself to extradite a single terrorist for us? Does his tenure in power really depend to that extent on duplicity?) The possibility for injustice, however, will increase the further down one goes on the government’s target list. What if some individuals lower down are listed because the CIA has misidentified them, as it misidentified Khalid El-Masri, an innocent German citizen whom the CIA kidnapped and tortured in 2003 and 2004 because they mistook him for a terrorist with a similar name? What if the culpability of some individuals lower down on the list has been grossly exaggerated, as was the case with the Uighurs in Guantanamo Bay? Without the protections afforded to suspects under the criminal law model, such errors would never be redressed, and might not ever even be discovered.

I’m offering these thoughts with the caveat that I’m still thinking through these issues myself. I don’t feel that I’ve gotten to the bottom of them.