A U.S. District judge has ruled that the Obama administration does not need to disclose justifications or considerations for targeted killings carried out around the world by drone strike. Remember these are not strikes carried out in war zones, these are targeted assassinations against identified “enemies of the state” around the world; some of them American citizens. The administration has been using drones to take out terrorist leaders and affiliates in places like Yemen and Pakistan, where the legitimate government has little reach outside the capital. I am not contending that this is necessarily a bad policy, but shouldn't the American people be made aware of the conditions under which their government will target a private citizen for extra-judicial execution?
The war on terror has pushed the boundaries of our traditional ways of thinking regarding war, peace and everything in between. We are not at war with a recognized state; we are at “war” with a number of groups beholden to an ideology and a set of tactics. Technically, the governments of Iraq and Afghanistan are our allies in that war as we help them put down terrorist insurgencies within their borders. As difficult as this has been for the American people to comprehend; it has been even worse for our legal system.
All of our laws pertaining to the conduct of war are based on the premise of one state fighting another in a declared war. Even our Constitution and the Geneva Conventions assume that wars will be conducted against a recognized state with a uniformed army. This is why many on the right will say that Al Qaeda and Taliban members are not due protections under the Geneva Conventions. They are not. Only uniformed soldiers of a recognized army fighting for the government of a recognized state are afforded such protections. This is somewhat ironic considering the current Westphalian state system has only been in existence for around 400 years. Most of human history was much more anarchic and the lines between various levels of military activity were much murkier.
The point of all this is that the current state of affairs is far too complicated to fall back on commonly understood notions of what constitutes a “legal” military action. I used this same argument against the left with respect to George W. Bush and think Obama deserves the same considerations. That said; Bush acquiesced to judicial oversight when it came to wiretaps and Gitmo. Are we really to simply accept that in something even more drastic, a kill order to a flying murderbot, the President can act with no oversight?
I want to give the President some leeway so he or she can deal with the world that seems to be developing. That is, a much more anarchic world where the primacy of the state is replaced with non-state actors and ideologically aligned groups in a constant state of “war” with the “civilized” world. Essentially we are returning to how things worked for most of human history outside of the last 400 years or so. Still, our Constitution is flexible enough to account for this change if we would only let it.
The basic legislative intent of our founding document is that the government derives its power from the consent of the governed. In the current context this means we have a right to know the reasons behind everything done in our name, and to put a stop to such actions if we disagree. We have a right to know the decision points which will trigger a drone strike and the level of oversight involved. If the President cannot justify his decision making to his bosses, 300 million American citizens, then he should not be making those decisions.
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