Feb 18, 2013, Vol. 18, No. 22 • By GARY SCHMITT
During World War II, a small number of German Americans fought for Nazi Germany as members of the Waffen-SS. Does anyone think the U.S. military would have given a second thought to whether it might kill those traitors—whether they were found on the battlefield, in a planning cell back in Berlin, or even in some third country involved in secret operations to disrupt the Allied effort?
Today, we apparently need pages on pages of Justice Department legalese (“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”) to justify killing Americans who have become senior jihadist terrorists and who are trying to kill as many innocent Americans as possible.
Of course, it’s no small irony that the candidate who once railed against the Bush administration’s so-called imperial presidency in the war on terror now finds himself under attack by his own base (and a few on the right) for his “secret” program of targeted killings. However, there is nothing like reality—in this case, the global, nebulous network of al Qaeda and allied terrorists—to bring home to a sitting president his fundamental constitutional responsibility to protect the lives and property of his fellow citizens.
The further irony is that while the Justice Department argues that a targeted killing can only take place when the targeted person poses “an imminent threat of violent attack against the United States,” it so broadens the concept that it concludes that the government need not have “clear evidence that a specific attack on U.S. person and interests will take place in the immediate future”—only a pattern of plotting such attacks. Given the spotty past record of the intelligence community in actually knowing when a specific terrorist plot is underway, this redefining of “imminent” is reasonable enough—although it can’t help but remind folks of the similar logic behind the Bush administration’s justification for preemptive war.
Predictably, libertarians of the left and the right have responded with near hysterics. The white paper policy, some claim, would allow the government “to kill citizens anywhere in the world”—including the United States—and strips those same citizens of their Fifth Amendment rights not to be deprived of “life, liberty, or property, without due process of law.” Both points are off the mark.
The white paper makes it clear that, when a law-enforcement option is available and feasible—as is the case in the United States (but not so in the ungoverned territories of Pakistan or Yemen)—this is the government’s required path. As for the Fifth Amendment, due process has never been understood as an absolute right without commonsense exceptions or, for that matter, always and everywhere requiring judicial involvement. To take an obvious example, police officers are not thought to have violated anyone’s rights when they shoot and kill a suspect who is armed and posing a danger either to them or to other citizens. Circumstances matter, and the speed with which critics of the drone program dismiss those circumstances is more indicative of their policy preferences—that we not be at war—than their constitutional acuity.
“It’s hard to believe,” the ACLU’s Hina Shamsi lamented, that the white paper “was produced in a democracy built on a system of checks and balances.” But what Shamsi and her colleagues really don’t want to believe is that the policy spelled out in the white paper is indeed a product of just that system.
Congress authorized the war against al Qaeda and its allies. While many details of the drone strikes remain secret, it can hardly be argued that Congress isn’t aware of the program’s existence or the administration’s -general legal justification for it; Attorney General Eric Holder spelled out much the same case for the program last March in a speech at Northwestern University. Nor is it possible for the administration to carry out the- -program without congressional authorizations, either by the intelligence or the armed services committees. And as the -confirmation hearings of CIA director nominee John Brennan demonstrate, Congress has always had the ability to dig deeper if it chooses to use its oversight powers. What the critics don’t want to admit is that poll after poll indicates that the American public supports the drone program, and members of Congress, within reason, will reflect that support.
Nor is it the case that the courts have been ignored. It is impossible to read the white paper, with its citations of court decisions and its criteria for “balancing” state and individual interests based on court decisions, and not conclude that the paper was produced in the shadow of the federal court’s newfound, post-9/11 willingness to review executive branch counterterrorism policies. Shamsi also conveniently ignores the fact that when the ACLU sued the U.S. government over placing Anwar al-Awlaki (the American citizen and radical imam who planned the failed “underwear bomber” attack over Detroit in 2009 and was subsequently killed by a drone strike) on a “kill list,” the federal court dismissed the suit. According to the court, these were policies and decisions the Constitution had left in the hands of the political branches, those “best positioned and most politically accountable for making them.” In short, those opposed to the drone program got their day in court; they just don’t like what the court decided.
None of this means that the administration’s expanded use of drones is above debate. The debate, however, should center on the policy, and not exaggerated claims about the Constitution. Drone strikes can be an appropriate tool of war, but one wonders whether they have increasingly become a substitute for a comprehensive counterterrorism policy. Given the rise of jihadist forces throughout the Middle East and parts of Africa, that’s the discussion we should be having.