which is the title of his Friday Washington Post column.
It begins like this:
If George W. Bush had told us that the “war on terror” gave him the right to execute a U.S. citizen overseas with a missile fired from a drone aircraft, without due process or judicial review, I’d have gone ballistic. It makes no difference that the president making this chilling claim is Barack Obama. What’s wrong is wrong.This issue has become ever hotter given the nomination of John Brennan to head the CIA.
Robinson notes that the issue of using drone attacks to kill American citizens is far from a hypothetical, given the killing both of US born cleric Anwar al-Awlaki and two weeks later his 16 year old son. Robinson writes of the cleric
I shed no tears for him. But as the Justice Department document admits, U.S. citizens have constitutional rights. I am deeply troubled by the notion that the president can unilaterally decide those rights no longer apply.I want to explore the issues a bit below the fold beyond what Robinson offers, and offer a few more of his words.
Robinson argues there should be at least some judicial oversight before a President or anyone else can order the killing of an American citizen overseas by drone.
I am not sure how this is supposed to work.
We have the FISA court system for execution of search warrants where there are matters of foreign intelligence that need to be kept close, but nothing in that legislation authorizes the approval of killing someone. In fact, I would be hard put to find a circumstance where a Court can authorize killing of anyone absent a trial that begins with the accused presumed innocent and no sentence of any kind being imposed until s/he is found guilty beyond a reasonable doubt.
Further, it may make a difference as to whether those operating drones are doing so while under military authority that is operating under the original authorization to go after Al Qaeda, because if it is a military operation, civilian courts have no jurisdiction, and killing someone of an opposing force in a combat situation, even were that person an American citizen, is fully authorized. The real question then is whether the so-called war on terror is covered by rules governing the use of the military.
If not, and one can argue that given that drones may be operated by those under the authority of civilian intelligence agencies outside the military chain of command, we have precedent of killing of threats by CIA personnel with no oversight. It is not clear to me how the fact that the target might be an American in any way changes the procedure legally - after all the Constitutional protections to trial procedures applies to persons, not just citizens, and the rules governing actions in war make no distinction as to the citizen of persons - in theory someone functioning as an illegal combatant (which would in fact include our own operatives not wearing a military uniform) are subject to summary execution without a trial.
I do not represent myself as an expert in these matters. I have had one conversation off the record with someone who is who expressed great reservations at the entire notion of targeted killings whether of Americans or foreign members of Al Qaeda, this discussion taking place at a fund-raiser for Barack Obama in 2008.
Thus I think the issue is far deeper than merely allowing what Robinson admits would be a nominal oversight by the judicial branch - it is whether the way our intelligence and military now operate can be considered to still be congruent with the principles established in our Constitutional system.
Robinson is seeking " a conceptual and legal framework: what he describds as "this new, unsettling form of warfare." I agree that issue needs to be seriously examined. I question whether we get there simply by setting up a procedure for a judge to rubber-stamp what the administration has already decided.
Robinson is clear on one point - we know there will be drones.
Now consider his final two paragraphs:
No president could become aware that specific enemies are planning attacks against the United States and not take action. This would be an unconscionable dereliction of duty. If the plot is being developed in a place like Yemen or Somalia, what are the options? Order a special forces commando raid, risking American lives? Mount a full-scale invasion? Or send up a flying robot, armed with a missile, and foil the plot by eliminating the plotters?Let's consider the first paragraph. As Robinson presents it, is that not similar to the rationalization for the use of torture in the ticking bomb scenario? Does not it raise troubling questions?
As drones become more sophisticated, the range of missions for which they are used will grow. And as the United States demonstrates the military potential of drones, other nations will build their own robot fleets. We need to realize that the future is now.
One issue that bothers Robinson and many others about the memorandum/legal opinion governing the use of drones is the very loose definition of "imminent" as to threats to the US. Does not that question apply to the first of these two paragraphs? How far along must the planning be to warrant a strike violating the sovereignty of another nation? Dick Cheney argued the 1% chance warranted the use of force - the mere potential for a threat against US interests (broadly defined) justified the use of any force deemed appropriate by the executive branch. We objected then. Should not we be objecting now?
Please note - I am not arguing to do nothing. I am more than a little insistent that this is an issue that needs to be vigorously debated. We did not vote for this administration in order for it to take these actions. One might argue that the strong support for Obama in 2008 was because people believed he would take a different path on such issues than John "bomb, bomb, bomb; bomb, bomb Iran" would.
Of course the administration and its supporters on this issue might counter that having taken the path they did, the American people validated that by reeleccting the President. I think I could dismantle that argument, but it is there to be made.
Let's now examine Robinson's final paragraph. The technology for drones will quickly spread. How we have chosen to use them sets a precedent for what others might do. While we are probably some distance away from seeing armed drones from other nations in our domestic airspace, given how we use drones what is to stop another nation from using them against US interests and citizens outside of our borders? Who might they consider justifiable targets? What might they consider acceptable collateral damage to our interests and citizens when targeting those they classify as terrorists against their interests?
I worry about the blowback.
I commend Eugene Robinson for attempting to begin the discussion.
For once, however, I find myself critical of his thinking, because I do not believe the fig leaf of a single judge signing off on the use of a drone to kill anyone, American citizen or not, really advances the issues we need to confront.
That is my thinking.
What is yours?