By Charles Krauthammer
Thursday, February 14, 2013
The nation’s vexation over the morality and legality of
President Obama’s drone war has produced a salutary but hopelessly confused
debate. Three categories of questions are being asked. They must be separated
to be clearly understood.
1. By what right does the president order the killing by
drone of enemies abroad? What criteria justify assassination?
Answer: (a) imminent threat, under the doctrine of
self-defense, and (b) affiliation with al-Qaeda, under the laws of war.
Imminent threat is obvious. If we know a freelance
jihadist cell in Yemen is actively plotting an attack, we don’t have to wait
until after the fact. Elementary self-defense justifies attacking first.
Al-Qaeda is a different matter. We are in a mutual state
of war. Osama bin Laden issued his fatwa declaring war on the United States in
1996; we reciprocated three days after 9/11 with Congress’s Authorization for
Use of Military Force — against al-Qaeda and those who harbor and abet it.
Regarding al-Qaeda, therefore, imminence is not required.
Its members are legitimate targets, day or night, awake or asleep. Nothing new
here. In World War II, we bombed German and Japanese barracks without
hesitation.
Unfortunately, Obama’s Justice Department memos
justifying the drone attacks are hopelessly muddled. They imply that the sole
justification for drone attack is imminent threat — and since al-Qaeda is
plotting all the time, an al-Qaeda honcho sleeping in his bed is therefore a
legitimate target.
Nonsense. Slippery nonsense. It gives the impression of
an administration making up criteria to fit the president’s kill list. No need
to confuse categories. A sleeping Anwar al-Awlaki could lawfully be snuffed not
because of imminence but because he was a self-declared al-Qaeda member and
thus an enemy combatant as defined by congressional resolution and the laws of
war.
2. But al-Awlaki was no ordinary enemy. He was a U.S.
citizen. By what right does the president order the killing by drone of an
American? Where’s the due process?
Answer: Once you take up arms against the United States,
you become an enemy combatant, thereby forfeiting the privileges of citizenship
and the protections of the Constitution, including due process. You retain only
the protection of the laws of war — no more and no less than those of your
foreign comrades-in-arms.
Lincoln steadfastly refused to recognize the Confederacy
as a separate nation. The soldiers that his Union Army confronted at Antietam
were American citizens (in rebellion) — killed without due process. Nor did the
Americans storming German bunkers at Normandy inquire before firing if there
were any German-Americans among them — to be excused for gentler treatment
while the other Germans were mowed down.
3. Who has the authority to decide life-and-death
targeting?
In war, the ultimate authority is always the
commander-in-chief and those in the lawful chain of command to whom he has
delegated such authority.
This looks troubling: Obama sitting alone in the Oval
Office deciding what individuals to kill. But how is that different from Lyndon
Johnson sitting in his office choosing bombing targets in North Vietnam?
Moreover, we firebombed entire cities in World War II.
Who chose? Commanders under the ultimate authority of the president. No
judicial review, no outside legislative committee, no secret court, no
authority above the president.
Okay, you say. But today’s war is entirely different: no
front line, no end in sight.
So what? It’s the jihadists who decided to make the world
a battlefield and to wage war in perpetuity. Until they abandon the field, what
choice do we have but to carry the fight to them?
We have our principles and precedents for lawful
warmaking, and a growing body of case law for the more vexing complexities of
the present war — for example, the treatment of suspected terrorists
apprehended on U.S. soil. The courts having granted them varying degrees of
habeas corpus protection, it is obvious that termination by drone is forbidden
— unless Congress and the courts decide otherwise, which, short of a Taliban
invasion from New Brunswick, is inconceivable.
Now, for those who believe that the war on terror is not
war but law enforcement, (a) I concede that they will find the foregoing
analysis to be useless and (b) I assert that they are living on a different and
distant planet.
For us earthlings, on the other hand, the case for
Obama’s drone war is clear. Pity that his Justice Department couldn’t make it.
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