February 10, 2013

The left seems to be of two minds when it comes to use of drones to kill terrorists overseas.

Barack Obama, Chuck Hagel, John Brennan
President Barack Obama and his nominee for defense secretary, former Nebraska senator Chuck Hagel (Pablo Martinez Monsivais/Associated Press).

Some liberal pols and pundits shrug at the drone program, content that it is now President Obama waging war rather than President George W. Bush. Whereas before they were ready to read Miranda rights to terrorism suspects at Gitmo, they now are content to let a Democratic president wage war against non-uniformed terrorists, some of whom are Americans, with a surgically “clean” (nearly) tactic. Maybe they are hypocrites or perhaps they’ve seen the light; it is in fact a dangerous world.

Others in the wake of CIA director nominee John Brennan’s confirmation hearing have lost it. A gross executive overreach! Find a court to tell the president whom to kill ! You really would have thought that Abraham Lincoln needed court approval for Sherman’s March to the Sea or that Harry S. Truman needed to check with Congress before dropping the atomic bomb on Japan that could well have killed some Americans. Once we wage war and once Congress, as it did on Afghanistan, gives the president war authorization, there is not much room for additional hands on the tiller.

The judiciary is the last place to go for wartime decision-making. What expertise could judges possibly provide? The notion of due process has little relevance when the decision is not the right to judicial review of an administrative decision but whether a sniper should take out an American Taliban.

That this administration like the last has chosen to over-lawyer a war, put restrictions upon itself and create a raft of murky definitions to provide the appearance of legal restraint is not a function of the Constitution, nor is it particularly wise.

John Yoo writes:

U.S. citizenship doesn’t create a legal force field around Americans who treasonously join the enemy. During the Civil War, every Confederate soldier remained a U.S. citizen. In World War II, Americans joined the Axis. As the Supreme Court reaffirmed in Hamdi v. Rumsfeld (2004), “Citizens who associate themselves with the military arm of the enemy government . . . are enemy belligerents.” . . .

 

The Bill of Rights establishes a careful set of rules for police conduct. Officers can use deadly force only when there is probable cause to believe a suspect will imminently cause serious bodily harm. The legal system doesn’t generally allow the government to stop the potentially dangerous before they commit crimes.

 

The military’s mission is quite the opposite. U.S. armed forces and intelligence agencies exist to pre-empt enemy attacks, not to apprehend the guilty afterward. Troops must have the right to use force against enemy armed forces at any time, not merely at the moment before “an operational leader” (in the Justice memo’s words) seizes a plane or places a bomb.

Maybe the voters, media and elected officials themselves would take national security more seriously if they understood the awesome power of the executive to wage war and how few restrictions (primarily the power of the purse and the power of advice and consent) are placed upon the president and his designees.

To be clear, congressional oversight is critical. It informs the budgeting process and ensures that executive-branch officials are complying with existing law. Simply having to explain why one is doing something imposes discipline and caution. Consistent with security concerns, the relevant intelligence committee members should be briefed on military matters. But if the Senate wants to make certain that executive decision-making is wise it should refuse to confirm unwise officials to high office. If the public doesn’t like drone warfare, it can throw the president out. But aside from that, the hysterics should chill out. Drones are simply the latest war-fighting  technology; the legal and political principles are as old as the nation.

Ironically there is much constructive work Congress can be doing instead of gesticulating over drones. Lawmakers could conduct hearings on leaks of national security secrets. They could demand answers as to what the president was doing during the Benghazi attack. Senators could deplore and refuse to confirm unqualified nominees. Instead, they seem enamored of the notion that some uber-court will swoop in to protect us against our president. Sometimes you wonder whether the mock outrage about things Congress cannot control is simply meant to distract us from asking why they aren’t doing their jobs on the things that do fall within their purview.

Rather than pleading for inappropriate judicial oversight, we should elect presidents appropriately focused on national security whose credibility is high and whose judgment is sound. And the media might even begin pressing the president on the efficacy of and the rationale for his decisions. (Why kill but not interrogate terrorists? Why overrule the military on aid to Syrian rebels?) Then we can learn what if any policy exists regarding the spread of al-Qaeda in North Africa, why senior officials failed to react to the deteriorating security situation in Libya and whether the entire notion of “leading from behind” is as misguided as Russian reset and obsessing over settlements in Israel.

Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.