There's a reason the Constitution checks executive power. Here's why -- and how -- to rein in targeted killing.
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?"
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.
Second, Dykes's heirs, if there are any, can bring a lawsuit in federal court. They can get information and testimony from the government. If they prove the killing was improper, they may get damages. But even if they fail, Dykes had a day in court and the government was called to account.
These two mechanisms of accountability seem to be missing from the current drone-strike program. Before Awlaki was killed, his family had asked a federal court to block the attack; the case was dismissed. Now the survivors are suing in federal court for wrongful death. The administration argues that the issue is a "political question" entirely beyond the reach of the courts.
Attorney General Holder has said that the decision to order lethal drone attacks receives "a thorough and careful review"; the white paper says only that a strike is carried out "where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States." As generalities, these aren't even very soothing: "Don't worry, we only kill bad guys, and we know 'em when we see 'em."
Sometimes -- as in some international version of the Dykes case -- there isn't time for procedures beforehand. OK, then, what about review afterwards? As the administration sees it, neither before nor after is there to be any review outside the executive branch. The courts can't intrude, and Congress will only be be "notified," and only afterwards.
What about within the executive branch?
On this point, the tone of the speeches and the "white paper" remind me of the revenge drama in Thomas Pynchon's The Crying of Lot 49: "[A] new mode of expression takes over. It can only be called a kind of ritual reluctance. Certain things, it is made clear, will not be spoken aloud ..."
There is no hint that after-the-fact executive-branch review is important. There is no commitment to carry it out. There is no discussion of procedures to do it. In fact, the universe apparently contains no such concept. Once the Hellfire missile falls out of the sky, both the dead and the decision to kill them vanish in the flames.
This won't do.
A nation and an administration committed to the rule of law would insist on after-the-fact accountability somewhere, somehow. If the administration doesn't want the courts involved, then it needs to let us know what it proposes in their stead.
By law, Congress could force the executive to carry out such an internal review when killing is ordered. For that matter, President Obama could require it by executive order. In an interview, Peter Shane of Ohio State's Moritz College of Law suggested an executive branch panel of independent, trusted figures. He mentioned as possible members former Senator Richard Lugar; former Representative Lee Hamilton; Elizabeth Rindskopf Parker, former general counsel to both CIA and NSA; or Jack Goldsmith, former head of the Office of Legal Counsel.
That board could be granted access to the people who made the decision, and could issue a classified report. It could disclose bare facts to the public -- "last year, the government conducted X number of targeted killings, including Y of American citizens. After thorough review, the Board found that proper procedures were (or were not) followed before the attacks and that they were (or were not) justified by credible evidence."
It's not complete transparency; hell, it's hardly even translucence. But it's vastly better than "a thorough and careful review."
At least since 1787, the words "trust us, we're the government" have had no place in American political thought. "If men were angels, no government would be necessary," James Madison wrote in Federalist 51. "If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."
Good people with great power often do evil. The Constitution works to check that tendency not by making government powerless but by forcing power-sharing and accountability. Even angels must explain themselves when they bear Hellfires.
Predator drones demand their own legal regime. They can't be part of a vanished world of diplomatic demarches and "declarations of war." But they need not fly free of any serious legal restraint. Barack Obama will foul his own legacy if he leaves office with only the machines in charge.