It’s happening again. People are freaking out, man. About, you know: drones. Because of this, via the New York Times:
Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if “an informed, high-level official” of the government decided that the target was a ranking figure in Al Qaeda who posed “an imminent threat of violent attack against the United States” and if his capture was not feasible, according to a 16-page document made public on Monday.
The unsigned and undated Justice Department “white paper,” obtained by NBC News, is the most detailed analysis yet to come into public view regarding the Obama legal team’s views about the lawfulness of killing, without a trial, an American citizen who executive branch officials decide is an operational leader of Al Qaeda or one of its allies.
I haven’t read the memo yet, largely due to an extreme case of exploding-head-fatigue, but you can download it in .pdf format here. I do note, however, that the paper purports to set out the justification for carrying out targeted killings only of individuals who are (a) “senior operational leader[s]” of al Qaeda or an affiliated group; and (b) are “actively engaged in planning operations to kill Americans.”
Nonetheless, it does talk about killing Americans, and that’s the kind of thing that’ll make Americans a little edgy. So it’s worth undertaking another quick review of the legal principles that apply here.
At the outset, I note that the New York Times, like Pres. Obama’s liberal critics, addresses the issue through the prism of civil liberties, to the exclusion of other, perhaps more relevant, legal considerations. The Times frames the issue as a question of “the lawfulness of killing, without a trial, an American citizen who executive branch officials decide is an operational leader of Al Qaeda or one of its allies.” But there are two reasons why that approach is flawed.
First, there’s the implicit, and incorrect, assumption that it’s a civil liberties question only because American citizens are involved. That’s really not true; whether the government is required to afford basic due process rarely turns on whether the subject of government action is a citizen of the United States. If the government wants to pursue criminal charges against a foreign national, it doesn’t get to jettison those provisions of the Bill of Rights that apply to criminal defendants (the right to counsel, the right to a jury trial, the right to confront witnesses, and so forth). Instead, the government has to go through the proper legal channels to obtain extradition (meaning it has to comply with the due process requirements of the country where the individual is located); and, once the defendant is brought here, he or she gets all the same rights American citizen would get as a criminal defendant.
On the other hand, on there are circumstances where those types of due process concerns simply do not arise. An enemy combatant on a battlefield isn’t entitled to due process – not, at any rate, in the midst of a firefight. And that’s true whether the enemy combatant is an American citizen or not. In other words, in the context of a traditional war between the United States and another country, if a American citizen goes to the enemy country, joins its military, dons its uniform, and actively fights against the U.S. military, our soldiers and marines are, of course, allowed to return fire on the battlefield without first affording that individual due process.
By the same token, an American actively fighting in an enemy army can be killed by air strikes, missiles, drones – by any legitimate means used to attack armed combatants involved in combat.
But, of course, all that assumes the United States is engaged in a traditional war. That is, a war against an identifiable enemy, wearing an identifiable uniform, operating under an identifiable flag, in an identifiable theater of operations. In that type of conflict, the rules of warfare are comparatively easy to apply. You know who your enemy is, where your enemy is, and how to distinguish your enemy from innocent civilians. Consequently, you can minimize the risk to civilians, to civilian property, to the institutions of civilian government. And, you can avoid killing Americans who happen to be in the wrong place at the wrong time, but are not necessarily fighting for the enemy.
And therein lies the problem. None of the attributes of traditional warfare obtains here. A war that began in Afghanistan against the Taliban and a group fairly easily identifiable as al Qaeda eventually spread to Pakistan, Yemen, Somalia, and who knows where else. The individuals and groups we’re fighting may or may not be directly involved in or with al Qaeda. And Americans who travel over there and associate with those groups in some fashion or another may or may not be involved in actual military operations against American targets.
So, the problem is not so much kill lists or drones or even targeting Americans who may be involved in planning attacks. The problem is the war on terror itself. It never made any sense. It has no boundaries, no identifiable enemy, and the only way to fight it is to impose enormous risks on innocent civilians. You can blame that on the terror organizations we’re fighting – and they do, in fact, deserve considerable blame – but that does not excuse the United States from adhering to the legal norms of war.
So allow me to solve the problem in the simplest, most straightforward way possible: End the inane “war on terror” and you end drone strikes, kill lists, dead Americans, dead civilians, piles of rubble, and the most efficient terrorist recruiting tool since Leonid Brezhnev sent the 40th Army over the Afghan border in 1979.End the “war on terror,” and your drone problem is solved. You’re welcome, America.