Even the Obama Administration now admits that the executive branch is inadequately restrained. What are legislators waiting for?
Even the Obama Administration agrees that the lethal drone program it runs permits the executive branch to kill too easily. Its officials felt it urgent to codify various constraints when they thought Mitt Romney might win the election, The New York Times recently reported, quoting one official who said, "There was concern that the levers might no longer be in our hands."
The story went on to report that the efforts are less urgent now that President Obama has won reelection (as if he alone is trustworthy enough to extrajudicially kill all willy-nilly, or to delegate that power to unerring paragons of good judgment like retired CIA Director David Petraeus). Still, the effort goes on with as much transparency as you'd expect: "The draft rule book for drone strikes that has been passed among agencies over the last several months is so highly classified, officials said, that it is hand-carried from office to office rather than sent by e-mail."
So consider this.
The Obama Administration thinks that on the president's authority it can adopt secret rules to a secret killing program, and that the rules will bind future presidents to Obama's notions of prudence?
That isn't how it works. Some David Addington/Harold Koh type could write up a memo demolishing any prudent safeguard the next president found hobbling in no more than a week or two.
Team Obama's attitude should nevertheless serve as a wake-up call to Congress. Hey legislators! The executive branch is telling you that even it thinks the status quo gives too much unchecked power to the president; that he is killing people without clear standards and procedures; and that he'd be worried about transferring the power he now possesses to someone else.
What's your use, Congress, if even knowing all that you do nothing? The Founders expected you to jealously guard the power given to your branch, yet you shirk that Constitutional role. Most of you have spent more time attending fundraisers than thinking about how to rein in a coequal branch that's gone so far as to shred the Fifth Amendment and start whole wars without your consent. The Obama Administration's pre-election jitters are "a perfect distillation of how grotesque power appears in the eye of Americans who wield it," Matt Welch writes. "The point of constitutional governance is that the legal structure for and oversight of executive power is not a task for the executive itself. The fact that a president (and former constitutional law professor) would think otherwise vividly illustrates how far from that bedrock concept we have strayed."
Forget Obama, who has shown his contempt for the rule of law too many times to trust that prudence will ever overcome his shortsighted self-regard. Only Congress can rein him in. As Obama said himself on The Daily Show, "One of the things we've got to do is put a legal architecture in place, and we need congressional help in order to do that, to make sure that not only am I reined in but any president's reined in terms of some of the decisions that we're making." So long as Congress doesn't even try, may history judge every derelict legislator harshly.
Why the urgency? As Will Wilkinson explains:
Establishing truly general, and thus potentially morally justifiable, "rules of engagement" for drone attacks is urgent for a rather more important reason than the possibility that a less enlightened politician might come to power: America's conduct sets an example for the world. As this newspaper noted earlier this month, "Staying true to America's principles is one worry. Providing a template for other countries is another. China and Russia have similar technologies but their own ideas about what constitutes terrorism."We Americans are inclined to think of ourselves as a morally upstanding lot who act according only to the highest ideals in our violent escapades abroad. Much of the rest of the world is inclined to view us rather differently, as smugly unwitting Thrasymacheans who cannot see the difference between what is right and what America, in its unmatched might, gets away with. The question Americans need to put to ourselves is whether we would mind if China or Russia or Iran or Pakistan were to be guided by the Obama administration's sketchy rulebook in their drone campaigns. Bomb-dropping remote-controlled planes will soon be commonplace... It's simply chilling to consider the possibility that the White House might really believe that absent the threat of Mitt Romney there are in this matter no grounds for haste.
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