Eric Holder Unveils 'The Cake Doctrine'

March 6, 2012

Holder Discusses Obama Administration's Counterterrorism Efforts
U.S. Attorney General Eric Holder Discusses Obama Administration's Counterterrorism Efforts at Northwestern Law School March 5, 2012 (Photo by John Gress/Getty Images)

Speaking yesterday at Northwestern University the Attorney-General Eric Holder set out the clearest intellectual framework so far for the Obama administration’s evolving counterterrorism doctrine.

All good doctrines need a name and so I am going to take this opportunity to propose one for President Obama’s approach: ‘The Cake Doctrine.’

As in wanting to have your cake and eat it too.

The Cake Doctrine is an advance on the Bush Doctrine of pre-emptive self-defense in that President Obama has more faith in the courts and our system of justice than his predecessor did.

However, like his predecessor, President Obama still wants the option of reaching for the hammer in the toolbox went it suits him.

And so we have a curious hybrid – a law enforcement approach for preference and a military approach when the constraints of law become too stifling.

And it was the Attorney General who was sent out yesterday to defend it.

This was an important speech. Mr. Holder set out to establish a new trinity of American values: “security, justice and liberty for all citizens.” Apparently the Obama administration feels that the Pledge of Allegiance comes up short. Liberty and justice are not enough – now it’s all about balance.

The Attorney General noted that much had been made of the distinction between federal civilian courts and the military commissions operating in Guantanamo.

Mr. Holder neglected to mention that he was one of those who had made such a distinction when seeking to bring Khalid Sheikh Mohammed and four other co-defendants to trial in New York in the fall of 2009.

He then proceeded to damn the Military Commissions with faint praise: They require proof, defendants get a lawyer and there is an appeals process.

To hear the Attorney General tell it, the only meaningful difference is that soldiers aren’t required to read detainees a Miranda warning on the battlefield.

As it happens, there are a quite few other fundamental differences which Mr. Holder chose to ignore. Perhaps the most significant is that even if a defendant is found innocent before a Military Commission the state can still keep him locked up indefinitely as a Prisoner of War.

That’s not usually the way criminal trials work but it is the embodiment of The Cake Doctrine – having your cake and eating it.

Unmanned Predator Drone
Unmanned drones are only one tool states are using to commit assassinations and murder. © AFP/Getty Images

The Attorney General also provided the most detailed legal defense to date of the Obama administration’s use of drones to kill suspected members of Al Qaeda. There is a lot in his comments to unpack.

As the State Department Legal Adviser Harold Koh had before him, the Attorney General stated that the legality of the drones program rested on two legal theories: one) that the United States is at war with Al Qaeda and two) that the United States is entitled to exercise force in self-defense.

Mr. Holder said that the United States would respect other states’ sovereignty unless the administration determined a state was unable or unwilling to deal effectively with the threat in question. That is not much of a constraint since it amounts to do what we ask or we will take matters into our own hands.

Again, we see The Cake Doctrine in action – we will observe states’ sovereign rights except when it suits us not to.

The Attorney General also addressed the vexed question of whether or not the United States can target a US citizen as an enemy combatant. He began by asserting, as the Supreme Court found in ex parte Quirin, that citizenship did not protect a US national from the consequences of his belligerency.

He then broke new ground for the administration by publicly acknowledging that the protection afforded by the Fifth Amendment’s Due Process Clause might come into play in such circumstances.

However, the Attorney General then drew a sharp, and rather disturbing, distinction between “due process” and “judicial process.”

Mr. Holder laid out the “due process” now followed by the United States before carrying out the kind of strikes that killed Anwar al Awlaki and his sixteen-year-old son:

  1. A “thorough and careful review” determines the individual poses an “imminent threat” of violent attack against the United States;
  2. Capture is not feasible;
  3. The operation is carried out in a manner consistent with the law of war.

Mr. Holder’s contention is that this process is sufficient to meet the “due process” standard in the Fifth Amendment.

Mr. Holder is mixing apples and oranges. If the authority for the use of force comes from the existence of an armed conflict then the nationality of the enemy combatant is immaterial. If it derives from the necessity of self-defense then it is the nature of threat not the provenance of the aggressor that counts.

So why drag the constitution into it at all? Mr. Holder seems to be making a larger point that in times of national crisis “due process” may substitute for “judicial process” and that is an alarming development but entirely consistent with The Cake Doctrine approach.

Finally, let’s take a closer look at the concept of “imminent threat” enshrined in the Constitution.

The Attorney General claims that imminence is an elastic concept. In essence, he argues that imminence does not in fact mean imminent but instead refers to a confluence of circumstances that include a window of opportunity to act pre-emptively rather than a plot actually in motion. Cake anyone?

That’s not the way international law sees it. The generally accepted standard for gauging the appropriate exercise of anticipatory self-defense is the so-called Caroline Test, devised, ironically enough, by the celebrated US Secretary of State Daniel Webster.

Webster argued after a pre-emptive strike on gun smugglers in US waters by the Royal Navy that any state claiming to be acting so in self-defense would have to first prove that the need to do so was:

“instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”

It is hard to imagine that Webster’s opinion was not informed in large by his understanding of the use of the term “imminent threat” in the Constitution.

The word imminent is important. It is there to prevent precisely the kind of operational flexibility the Obama administration is seeking. The exercise of self-defense is designed to be an act carried out in extremis not as an ongoing instrument of state policy.

If the United States claims the right to carry out targeted killings as an integral part of its “national security operations” then it is going to have to put up with other states asserting the same right. States like Syria.

The Cake Doctrine opens up Pandora’s Box. Repressive states will use the administration’s logic to hunt down opposition politicians, critical journalists and outspoken human rights defenders all in the name of national security.

And we will have completely ceded our moral authority to object.