Feb 18, 2013, Vol. 18, No. 22 • By GARY SCHMITT
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.