Everything Libertarians and Liberals Get Wrong About Drones

The main point of judgment comes before one asks which means are legitimate when attacking an enemy -- it is whether we should fight at all.
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Seven factoids about drones -- the new cause célèbre of libertarians and select liberals -- cannot stay aloft.

Critics argue that drones reflect a usurpation of power by the "imperial presidency." This is to say that President Obama, who has greatly expanded the employment of drones, is acting without Congressional authorization and oversight. Actually Congress granted the president on September 14, 2001, the power "to authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States." If the critics' concern was merely that this resolution might not apply to those who are not card-carrying members of al-Qaeda -- and that Obama was thus overstepping the resolution's bounds -- they would focus their efforts on urging the president to return to Congress and ask for a new resolution with slightly more inclusive wording. He wouldn't need to worry; even the much-divided Congress would approve what it takes to stop terrorist, in particular after the latest attack in Boston. However, this is hardly what critics call for, revealing that their true motive is to curb the use of drones rather than find ways to dot the i's and cross the t's when it comes to their use.

Critics also complain that drones are not subject to Congressional oversight. Actually Congress is regularly briefed about this campaign. As Democratic Senator Diane Feinstein of California, a strong liberal herself, recently stated: "Senate Intelligence Committee is kept fully informed of counterterrorism operations and keeps close watch to make sure they are effective, responsible and in keeping with U.S. and international law."

Critics further claim that, according to international law, force should be used only when terrorists pose an imminent treat. However, because terrorists do not abide by the rules of armed conflicts, which require that combatants identify themselves as such, and not merely reveal their status only when ready to strike, all those who can be reliably identified as terrorists are a legitimate target. Imagine if the terrorists wore uniforms and belonged to, say, the German army in World War II. They then would be a fair target whether they were training, regrouping, rearming, or even at rest. Simply because al-Qaeda and its associates hide their status does not mean that they should be accorded better protection.

Critics reveal their true colors when they argue that terrorists should be tried like other criminals, i.e., in civilian courts in the United States. This claim ignores a major question: Why should suspects in Yemen, Pakistan, and Somalia be granted all the rights of an American citizen -- including the services of a bunch of publicity seeking lawyers, the kind that got O.J. Simpson to walk? Or procedural protections that require that evidence be thrown out if the laboratory equipment has not recently been recalibrated or if the evidence was not kept in the proper chain of custody and so on and on? That is to say, why should terrorist suspects be granted all the gold-plated protections available to Americans when these right were never granted to all comers?

Some cite the high number of convictions in civilian courts as evidence that these courts can deal with terrorists. However, they ignore the fact that most of these convictions were not of transnational terrorists operating abroad, but of locally-active terrorists (e.g., members of the FARC from Colombia); that those convicted often received light sentences; and, above all, that prosecutors had to rely on plea bargaining so as to protect sources and methods of intelligence gathering from being revealed in open court. This is not to say that we must try terrorists in military tribunals. Rather, they should be accorded their own special court similar to FISA court, established by the Foreign Intelligence Surveillance Act.

Even more telling is the fact that many of those for whom there is reliable evidence of engagement in terrorism-related activities are located in places such as North Waziristan. In other words, these terrorists are in areas where they cannot be captured -- which of course is necessary for them to hauled before an American court -- without imposing very great risks on our troops, invading other countries, and risking considerable collateral damage. Do the critics really mean to suggest that if these suspects cannot be captured, they should be granted a free pass? If not, how do these critics suggest we deal with them?

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Amitai Etzioni is a university professor and professor of international relations at The George Washington University. He served as a senior adviser to the Carter White House and taught at Columbia University, Harvard University, and the University of California at Berkeley. His latest book is Hot Spots: American Foreign Policy in a Post-Human-Rights World.

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