[This is Phil. G is off this week; he pretty much exhausted himself with the blog on tin foil hats, and needs time to recharge. So do the rest of us, I might add.

You remember, last time he discussed Senator Paul’s filibuster of the Administration’s pick to run the CIA. That worthy is an expert on drones and airstrikes, and Senator Paul wanted to know more about the program. He was especially curious about whether current policy or law would permit strikes against U.S. citizens in this country. Why did he ask that? Well, because early in February an Administration “White Paper” leaked out that apparently sanctioned domestic airstrikes.

As usual, G uncovered a thicket of issues, and tiptoed through them with a wave and a joke. But some of us, and no doubt some of you, have been scratching our heads ever since. What about the unanswered questions? Who really supports drone strikes in the United States? Why don’t they stand up so we can count them?

People these days will put up with a lot, because they’re afraid of terrorists; but will they feel the same when the house next door explodes? Will it be good enough for the Government to say, “Oops, we thought there was a terrorist there?” That’s the explanation we use overseas. Is the Government going to get into the business of drive-by shootings in this country, but with missiles and bombs?

Of course the Government won’t just shoot. It will have “actionable intelligence” before it acts. That’s nice to know, but call me old-fashioned; somehow the idea of admissible evidence, an arrest, a public trial, a conviction, and formal sentencing makes more sense. After all, we’re talking about Americans at home; not Americans in foreign armies in foreign countries. That ought to count for something.

But I digress: Fred and Larry tell me they’re going to do a piece on “unlawful combatants,” who they are and when we can shoot (or bomb) them. Fred’s our resident expert on Government and the preternatural; Larry’s a retired lawyer. Wait for it; their work could be interesting.

My task, on the other hand, is much more limited. I’m going to take a look at the document that may have kicked off Senator Paul’s filibuster. What in the world is a “White Paper?” And why was one written on drone policy?]

The Oxford English Dictionary says, blandly, that a White Paper is a Government report giving information on a proposal or an issue.[1] That’s the version in England, where white papers are distinguished from “blue books,” which are far more detailed presentations of the same sort of thing, and are bound in blue covers.[2] Not all White Papers are loved, admired or forgotten. Some are talked about and criticized for decades after they are written.[3]

The Europeans have a different formula. The European Union has lots of countries to negotiate with before it does anything for the group. So typically, at least on the legal side, the EU will issue a preliminary statement of issues, to start a negotiation process. Those are called “green papers.”[4] If formal proposals come out of the discussions, these will be packaged as a White Paper and sent upward for approval (or disapproval). [5]

We in America take the most expansive view of the White Paper. Over here anybody can write one[6], and there are online courses to help the uninitiated.[7] But the product must be “detailed or authoritative.[8]” Note the “or;” you can have one, or the other, or both and still qualify. So perhaps some of these blogs also are White Papers. While we don’t claim to be authoritative here at Elemental Zoo Two, some of our posts are very detailed. That should be enough, right?

Anyway, today America has an explosion of White Papers: Government reports dealing with all sorts of subjects, from the environment[9] to marketing, postage meters, surveillance, etc.[10]; and private reports on IT,[11] business,[12] risk management,[13] and lots of other things. If you don’t believe me, just go to your favorite search engine, enter “white paper” and see what turns up. Happy reading!

So what kind of White Paper was Senator Paul talking about in his filibuster? Well, as G noted last time, it was unsigned, undated, and not on anybody’s letterhead, but was styled a “DOJ White Paper.” [14] It leaked on February 4 of this year.[15]

Why is it that so many leaked Government documents look like a slightly blurry carbon copy that might have been dragged through dirt, before being photocopied by the reporter? Most documents these days are electronic; you can print out a fresh copy whenever you want. And obviously NBC did something with the original image before they published it. After all, it has “NBC News” overprinted 8 times a page. Hopefully it didn’t come that way from the DOJ.

On the other hand, the font used is similar to the one later employed in AG Holder’s subsequent two letters[16] to Senator Paul.[17] So that, coupled with the fact that nobody at DOJ seems to have disavowed the paper, leads us to conclude that, on balance, it’s probably authentic.

But is it really a White Paper? Obviously it says it is, but really it didn’t perform as one. You see, if you look at all the various definitions of white and other papers, those papers are produced for public consumption. They’re supposed to define a position on one thing or another, inform the public, and invite comments, debate or whatever. This paper was written for internal consumption at DOJ, probably to a limited group; not to inform the public about anything. How do we know that? Well, because we didn’t find out about it until it leaked!

So what was its purpose? Why was that memo written? Think about it. Suppose our Government launches an airstrike in the U.S., and kills some onlookers, as well as its intended target. If the DOJ has issued an opinion that the Government could do this, are DOJ lawyers likely to prosecute the federal employees involved? Probably not. So the memo gives cover to those who made the strikes, or authorized them.

But there is a certain genius to our legal system. Larry tells me there’s an old Supreme Court case that allows individuals whose Constitutional rights are infringed by federal employees to sue them directly. No separate Federal or state statute is required to authorize the action.[18]

Well, more or less. Perhaps an aggrieved party can get to court, but federal officials mostly are immune from suit when they are working at their jobs. But their immunity is “qualified.” A private citizen can get by the immunity if he or she shows (i) the official violated the citizen’s statutory or constitutional rights, and (ii) those rights were ‘clearly established’ at the time the violation occurred. [19]

So let’s say that someone in your family is killed when the Government bombs the house next door. The Fifth Amendment says that citizens should not be deprived of “life, liberty or property” without due process of law.[20] Your family member was a citizen; was not a terrorist; was very definitely deprived of life; and certainly didn’t receive due process. So case closed, right? The family can sue and win?

Larry says, maybe not! The drone program is sanctioned by the DOJ White Paper. If DOJ’s legal analysis is correct, then there’s an exception to the Fifth Amendment that permits drone strikes. And even if DOJ’s legal theories are rejected by the courts, the Government can still argue that the law really wasn’t clear at the time of the incident. So the federal employees still have qualified immunity.

What do I conclude from that? Nothing, really, but I can speculate. Perhaps the DOJ White Paper was in fact a CYA[21] memo! It might have been written simply to protect drone operators who drop bombs in this country. Which, if true, leads to a grim conclusion: There really are people in our Government who want to do that sort of thing!

So there you have it.  We can all go to bed tonight, secure in the knowledge that our Government will defend us from terrorists, no matter what; but if the terrorists live next door, we might be collateral damage. That’s to be expected, don’t you think? Remember that old adage from Vietnam:  “It became necessary to destroy the town to save it.”[22]

Anyway, that’s my opinion.

[1] See Oxford Dictionaries, White Paper, at http://oxforddictionaries.com/definition/english/White%2BPaper

[2] Blue books are also issued by the Government, and are usually viewed as “authoritative handbooks.” See Oxford Dictionaries, Blue Book, at http://oxforddictionaries.com/definition/english/Blue%2BBook?q=blue+book

[3] See Zionism and Israel – Encyclopedic Dictionary, White Paper Definition, at http://www.zionism-israel.com/dic/white_paper.htm  See also, Mid East Web, The White Paper of 1922 (the Churchill White Paper) at http://www.mideastweb.org/1922wp.htm

[4] See Europa: Summaries of EU Legislation: Glossary, green paper, at http://europa.eu/legislation_summaries/glossary/green_paper_en.htm

[5] See Europa: Summaries of EU Legislation: Glossary, white paper, at http://europa.eu/legislation_summaries/glossary/white_paper_en.htm

[6] See Oxford Dictionaries (American English), White Paper at http://oxforddictionaries.com/definition/american_english/white+paper

[7] See, e.g.,  OWL, Purdue Online Writing Lab, at http://owl.english.purdue.edu/owl/resource/546/1/

[8] See, e.g., the Merriam Webster Online Dictionary, White Paper, at http://www.merriam-webster.com/dictionary/white%20paper

[9] See EPA, White Papers, at http://nlquery.epa.gov/epasearch/epasearch?querytext=white+papers&fld=&areaname=&typeofsearch=epa&areacontacts=http%3A%2F%2Fwww.epa.gov%2Fepahome%2Fcomments.htm&areasearchurl=&result_template=epafiles_default.xsl&filter=sample4filt.hts

[10] For an interesting list, go to GlobalSecurity.org, Free Government Resources – Download Now! at http://globalsecurity-whitepapers.tradepub.com/

[11] For a list of some of them, see TechRepublic, Home/White Papers at http://www.techrepublic.com/whitepapers

[12] See Industry Week, White Papers at http://www.industryweek.com/white-papers

[13] See Business Insurance, white papers, at http://www.businessinsurance.com/section/white-papers

[14] See DOJ, Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force (no date, no author), at http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf.

[15] See Open Channel on NBC News, Isikoff, Justice Department memo reveals legal case for drone strikes on Americans (4 Feb. 2013) at http://openchannel.nbcnews.com/_news/2013/02/04/16843014-justice-department-memo-reveals-legal-case-for-drone-strikes-on-americans?lite

[16] See DOJ Letter from Eric Holder to Senator Rand Paul, dated, March 4, 2013, at (http://www.paul.senate.gov/files/documents/BrennanHolderResponse.pdf; DOJ Letter from Eric Holder to Senator Rand Paul, dated March 7, 2013, at http://www.washingtonpost.com/blogs/post-politics/files/2013/03/Senator-Rand-Paul-Letter.pdf .

[17] It looks something like Times Roman, 12 point. Just compare the document shown in note 15 with the documents in note 16; you’ll see what I mean.

[18] See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

[19] We wrote about this in the old Elemental Zoo blog. See the blog of 09/08/2011, Ashcroft v. al-Kidd, at http://elementalzoo.typepad.com/elemental-zoo/page/7/ The full case citation is Ashcroft v. al-Kidd, 563 U.S. ___ (2011). We don’t have a page number, because the case hasn’t been published (yet) in a bound volume. You can find the slip opinion on the Supreme Court’s website, indexed under the 2010 term. Go to http://www.supremecourt.gov/opinions/10pdf/10-98.pdf

[20] Actually, it says, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” You can find a correct version of the  5th Amendment at the National Archives: go to http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

[21] That’s the acronym for “Cover Your Ass.” Wikipedia has a short article on this. Just go to the Wikipedia website and search “Cover your ass,” or simply click here: http://en.wikipedia.org/wiki/Cover_your_ass

[22] Wikipedia has a short article on this. Just go to the Wikipedia website and search “Ben Tre,” or simply click here: http://en.wikipedia.org/wiki/B%E1%BA%BFn_Tre But some people dispute whether this was ever said. See, e.g., Right Wing News, Shaidle, Vietnam War Myths, Part 2: “We had to destroy the village …” (February 14, 2009), at http://www.rightwingnews.com/uncategorized/vietnam-war-myths-part-2-we-had-to-destroy-the-village/