An administration headed by a smart lawyer is unable to grasp that to the American people, secret law is hard to tell from no law at all.
The drone war may not be a cancer on the Obama presidency, but a wise doctor at this point would order more tests.
The issue has blown up in recent weeks, with the nomination of John Brennan as director of central intelligence and the leak of the Justice Department's mealy-mouthed "white paper" about the legal requirements for a targeted strike on a U.S. citizen abroad. On Wednesday, Senator Rand Paul of Kentucky seized the issue to fuel a "talking filibuster" of the Brennan nomination to highlight his claim that the Obama Administration now claims legal authority to kill "an American ... in a cafe in San Francisco or a restaurant in Houston or at their home in Bowling Green, Kentucky."
Paul likes to distort quotes from his political foes -- witness his earlier claim that Elena Kagan had said that the government could require citizens to eat broccoli, when the record shows clearly that she didn't.
But that Paul is a demagogue doesn't diminish the administration's ham-fistedness in the drone-war debate. There's a growing suspicion that its flawed responses represent not simply inept spin but a troubling ambivalence about the rule of law.
Throughout the past five years, the administration has been tight-lipped and grudging in its discussion of the law and the Constitution as it applies to our new war-fighting technology. The "Paulibuster" may represent a last chance to broaden the discussion and confront the very real dangers drone warfare represents.
Right now the domestic dialogue focuses entirely on one narrow though important question: When can the U.S. target an American citizen abroad for a lethal drone strike? This focus is unhelpful. From what we know today, the U.S. has done this only once since it began arming drones a decade ago. The real danger is not spillover from the drone war onto an occasional American; it is the lawless context within which the entire drone war seems to operate.
Drones, as I have argued before, represent a change in war-fighting technology that leaves existing law gasping to keep up. In legal terms, there's no difference between targeting a perceived enemy abroad with a drone and doing so by sending in SEAL Team Six. But that's a flaw in the law, which ordinarily proceeds backwards, drawing its analysis from historic events. (Consider, for example, that discussions of how Congress could regulate drone warfare often start with the 1804 case of Little v. Barreme, in which the Supreme Court held that President John Adams had no power to order seizure of neutral vessels sailing from a French port when Congress had only authorized him to seize vessels sailing to French ports.)
The U.S. should ask the Security Council to consider whether we need a multilateral treaty on drone warfare. Given how cheap and safe they are, Kim Jong Un and Al Shabaab will soon be ordering them from Amazon.
Drones are different from other modes of warfare because of their cheapness, their deniability, and the fact that they can be deployed to destroy enemy targets with little or no risk to American personnel. From what we know, the drone program is becoming an institution within the national-security apparatus, with a growing air fleet, hundreds of earth-bound pilots, and a shadowy official chain of command involving the Pentagon, the CIA, and the White House. Unless we act quickly, the institution itself will begin the set the rules; and there's no reason to believe that it will restrict its own operations any more than other secret, unchecked bureaucracies do -- that is to say, hardly at all.
One doesn't have to be Rand Paul to see that this administration's approach to public discussion of the new reality has been grudging at best and disingenuous at worst. Paul's filibuster was sparked by a letter he received from Attorney General Eric Holder Monday. Paul had asked Holder whether the administration had authority to use a drone strike against a U.S. citizen on American soil. Holder wrote that the question is "entirely hypothetical [and] unlikely to occur." He then went on to answer,
It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution to authorize the military to use lethal force within the territory of the United States. For example, the President could conceivably have no choice to use such force if necessary to protect the homeland in the circumstance of a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.
Were such an emergency to arise, I would examine the particular facts and circumstances before advising the President on the scope of his authority.
The letter clearly doesn't say anything like what Paul says it says. Read it carefully; it doesn't even say that the government might have power to strike an American citizen at all. At a hearing in front of the Senate Judiciary Committee Wednesday, Holder told Senator Ted Cruz that the dreaded café strike would not be constitutional. But that statement came only after much back and forth about Holder's initial statement that it would not be "appropriate." Finally, Holder explained, "Translate my 'appropriate' to 'no.' I thought I was saying 'no.' All right? 'No.'"
The Holder-Paul letter was lawyerspeak; a lawyer's job is not to hem in a client by making broad renunciations, but to say, as Holder did, that the question would only be answered in light of "particular facts." If civil war, or Red Dawn II, were to break out in the U.S., whoever is attorney general then really would have to look at this issue again.
Holder probably brushed off the Paul letter as a nuisance. Inside the administration, he and others are devising minute-by-minute responses to real situations, some of which are fraught with danger of attack on the United States. A lawyer in the midst of real crises has little time or patience for hypotheticals about breakfast in Bowling Green.
But the attorney general, like the president, isn't just a legal official. National leaders need to put specific decisions in a context the people can understand, and here Holder and Obama and the rest have been spectacularly ineffective. Simply put, there's no conceivable excuse for the drip-wise release of information about the drone program. Rather than the generalities of the "white paper," the administration should long ago have released the entire memo from the Office of Legal Counsel that outlines its legal authority for the drone war. (If details need to be redacted, fair enough. But why fight wars both in court and on Capitol Hill to maintain secrecy about the law itself? Secret law, for good reason, is often regarded as no law at all.)
And the memos we know about center on only the American-citizen question. The larger questions are equally troubling, and the administration's statements on them have barely reached the level of Father Knows Best. Is it legal, under international law, to use drone strikes in countries where no combat operations are taking place? Given the potential for killing innocents, do drone strikes themselves comply with the laws of war? Which executive officials have the authority to order a strike? Are we giving future presidents a new end run around the Constitution's division of war power between president and Congress?
Why can't a thoughtful lawyer like Obama get ahead of this issue?
Releasing the OLC memo or memos is not strategy. It is damage control, and tardy damage control at that. A lot more is needed. The U.S. should ask the UN Security Council to convene an international conference to consider whether we need a multilateral treaty on drone warfare. Given how cheap and safe they are, Kim Jong Un and Al Shabaab will soon be ordering them from Amazon. It would be far better to create international law now rather than after, say, Raul Castro drops a Fuego Infierno on Calle Ocho to take out Luis Posada Carriles.
Beyond that, Obama should ask Congress for a comprehensive statute setting forth which officials can order a drone strike, when they can do so, what sort of reports must be filed with Congress afterwards, and what procedures will be followed within the executive branch to ensure the strike was legal and appropriate. The current Congress may, in its magnificent dysfunction, be unable to enact a statute. But that doesn't excuse the administration's failure to ask; and until a statute is in place, Obama should issue an executive order setting out, in public, general terms, how the drone war will be carried on.
I am convinced that officials like Holder and Brennan are doing their best to maintain integrity in America's use of drones. But history shows us that self-monitoring by the powerful breaks down into self-serving lawlessness -- usually sooner rather than later.
For the love of heaven, why shouldn't the people know that the government is actually following some law in this area?
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