There's No Way to Hold Obama to Account When Drones Kill Innocents

By Conor Friedersdorf

Even if he has the authority to order strikes on Al Qaeda, that doesn't justify keeping quiet when noncombatants are hit instead.

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Reuters

Set aside the question of whether President Obama should be empowered to order the killing of Americans. Instead, let's ask, "What happens after he orders an extrajudicial assassination?" So long as drone strikes happen in secret, nothing happens. A kill order is given, a Hellfire missile fired, and it doesn't matter if the human blown limb-from-limb is an Al Qaeda terrorist, an innocent Muslim man, or a five-year-old girl. Even if the target is killed far from any battlefield, in a place where he might easily have been be captured, and the kill order could've been postponed without putting national security at risk, the president won't be investigated or arrested or tried in court or punished.

There is no mechanism for it to happen.

If a homeowner shoots an intruder, or a police officer fires on and kills a criminal suspect, there is, at minimum, a post-mortem investigation conducted by a theoretically impartial party. But if the president acts, it doesn't matter, in practice, how irresponsibly he does so. Under the protocol the Obama Administration has instituted, negligent acts would never come to the public's attention, because the determination that an American citizen belongs to Al Qaeda, the judgment that he cannot be captured, and the assertion that he poses "an imminent threat" are all made in secret. Americans aren't even told the controlling standards or whether they were applied.

Some drone-strike defenders try to evade this reality. Says David Frum:

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But that is nonsense.

There are quite literally hundreds of secrets here, as Senator Ron Wyden has pointed out on many occasions. If John Brennan told me all he knows about drone strikes and innocents killed in them, he could be imprisoned for years, because he'd be guilty of leaking classified secrets. In fact, he'd likely be permitted to give me the most information about innocents inadvertently killed on Afghan and Iraqi battlefields but the least information about innocents killed in the course of premeditated CIA drone strikes, where culpability for killing innocents is highest. 

Marc Ambinder acknowledges the lack of accountability for unjust killings, and suggests what he thinks is a remedy.

"I don't think Congress has the wherewithal to determine, ahead of time, who belongs on a target list and who doesn't. I don't think the judicial branch would want that responsibility, especially given the time constraints that accompany the targeting process," he writes, as if the judiciary's wants rather than the nation's needs are the appropriate standard. Ambinder goes on:

What I would like to see, and what I think IS feasible, is a system of post-facto accountability. It would require more transparency by the executive branch but would not interfere with their decision-making. The lawyer or 'informed person' who signed off on the killing would be required to submit a dossier to a judge, perhaps on a special panel, who would review the decision chain and determine whether the government met its own criteria both literally and substantively. The court would release to Congress and the public redacted versions of its decisions. If it found that the president was using these powers indiscriminately, we, the people, would know. We would know well after the fact, which is a necessary evil, but we would be able to do something about it.

As I see it, the Constitution demands due process. It's right there in the Fifth Amendment. Our founding document even calls for a trial in open court when a citizen is accused of capital treason. I'll acknowledge that a presidency held accountable for the people it kills would be a huge improvement on the status quo, in which the executive branch is effectively above the law.

Any anyway, I doubt that Ambinder's alternative is available to us in practice.

Even Ambinder, in his hypothetical about a president killing people "indiscriminately," can't bring himself to say that we'd arrest, try, and imprison him. Instead, he merely says that "we, the people, would know" that he abused his power, and that "we would be able to do something about it." But would we do anything? George W. Bush abused his power. Obama has abused his power too. Everyone paying attention knows this. We're just unwilling to do anything about it. Like a misbehaving Wall Street bank that pursues short-term goals while corrupting the system to which it belongs, every presidency is treated as if it is too big to fail. After the fact, we'll always bail out presidents.

Protecting the innocent and the rule of law must be preemptive. 

Says Ambinder, "I don't want to trivialize the president's constitutional duty to protect the country." Like everyone these days, he misleadingly paraphrases the actual oath of office that every president swears: "to preserve, protect, and defend the Constitution of the United States."

It's that duty that I don't want to trivialize. That's why I insist that individuals targeted for assassination far from any traditional battlefield ought to be judged Al Qaeda by someone outside the executive branch before being fired upon from the sky. "The core distortion of the War on Terror under both Bush and Obama is the Orwellian practice of equating government accusations of terrorism with proof of guilt," Glenn Greenwald points out in The Guardian, going on to explain that ... "without any due process, transparency or oversight, there is no way to know who is a 'senior al-Qaida leader' and who is posing an 'imminent threat' to Americans."

He is almost correct. My quibble is that, despite a lack of due process, we already know that American drones have killed innocents during Obama's tenure, and that there have been no consequences. When we kill kids we don't pay for their burials. We don't even acknowledge our mistake! In fact, asserting that the innocents were killed by accident is somehow enough to disqualify it from what Frum calls a "bad" drone strike. I am not suggesting that Obama has deliberately killed innocents -- just that, under the present system, a president could easily get away with doing so. Isn't that alone enough to make you conclude that our safeguards are inadequate?

This article available online at:

http://www.theatlantic.com/politics/archive/2013/02/theres-no-way-to-hold-obama-to-account-when-drones-kill-innocents/272983/