'Trust Us' Won't Do: How to Hold Obama Accountable for Drone Strikes

There's a reason the Constitution checks executive power. Here's why -- and how -- to rein in targeted killing.

Effrain Lopez/U.S. Air Force/Reuters

In the 1964 film Fail-Safe, an American president, played by Henry Fonda, orders a nuclear strike on New York.

Because of a computer error, an American bomber has mistakenly destroyed Moscow. To prevent a full-scale nuclear war, the United States must atone by destroying one of its own cities.

Afterwards, the president tells his Soviet counterpart, "We let our machines get out of hand. ... Do we learn from it, or do we go on the way we have?"

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The president of the United States may, at any moment, decide that cities -- or for that matter all life on earth -- must perish in flames. We have lived in this world so long that it seems normal, even safe. But our technological situation is in fundamental tension with the rule of law.

That same tension -- technology versus legality -- surfaced again this week. NBC News revealed a Justice Department "white paper" summarizing the Obama Administration's legal position about the president's right to order another sort of lethal force: Predator drone strikes against individuals abroad -- including American citizens -- whom Obama finds to represent an "imminent threat of violent attack against the United States."

Press reaction has run a wide gamut -- from the Obama-is-a-wimp of John Yoo to the of-course-the-President-can-blow-up-anybody-he-wants of Eric Posner to the Obama-is-the-great-beast-of-Revelation of Charles Pierce. On Capitol Hill, the white paper hung darkly over John O. Brennan's confirmation hearings as director of Central Intelligence. As of Friday, negative public reaction seems to have pushed the administration into finally giving members of Congress the actual full-length memo from the Office of Legal Counsel that justifies the drone program, though the memo will still not be made public.

There's little new in the white paper. We have known since 2010 that the administration had carried out at least one targeted killing of an American, Anwar al-Awlaki. We have known since March the outlines of the legal rationale for this practice, as laid out in speeches by Attorney General Eric Holder and others. We have also known that the administration regards the drone-strike assassination program as the business of the executive branch and nobody else.

But while the current memo adds little that is new to the debate, it represents another point at which we can, and should, think about keeping our machines from getting out of hand.

The president's authority to launch nuclear weapons flows out of the nature of nuclear war itself. Foreign missiles can now hit U.S. targets in a matter of minutes. Faced with an attack, a president who waited for Congress to assemble would be destroyed before the switchboard could reach the speaker of the house. The machines dictate the pace; all we can do is centralize control over the technology and pray that our elected leader will not go insane.

Good people with great power often do evil. The Constitution works to check that tendency.

Likewise, we learned earlier this week that the president has sweeping authority to order cyber-defense and attack measures if a hostile force tries to breach critical U.S. computer systems. Computers count time in nanoseconds, and thousands of lives could be lost if critical systems fail; there's no time for consultation before countermeasures.

Drone technology is inexpensive and powerful. It spares American personnel the risks of combat. A president with such weapons would be remiss not to use them against a dangerous enemy. The proper questions are two-fold. First, how are the decisions made? And second, how can we make sure that they are well made?

Governments must sometimes use lethal force without notice or procedure. Consider Jimmy Lee Dykes, the gunman in Midland City, Alabama, who held a 5-year-old child hostage for six days last week. State and federal law enforcement agents tried to negotiate a surrender; but when Dykes began acting like a danger to the child, they stormed the compound and took his life. Under the facts as we know them today, would anyone say the agents acted lawlessly?

Just so, there may be occasions when a dangerous international enemy is vulnerable, the danger is immediate, and the government has a clean shot. Even if that enemy is an American citizen, the Constitution is not offended if government pulls the trigger.

But there are two differences between Awlaki and Dykes. First, in the case of Dykes, FBI officials will conduct an after-the-fact executive-branch investigation of the agents' acts. Those who ordered and used deadly force will be accountable to an administrative board that was not involved in the decision. An official report will determine credit and blame; and under proper circumstances, that report will be available to courts, Congress, and the public.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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