Drone Policy Bringing Law Enforcement Mindset to National Security

Most of the criticism of the Obama Administration’s white paper on targeted killings is coming from anti-war critics on both the left and right. In an op-ed in today’s Wall Street Journal (subscription required), however, I argue that the issues they’re focusing on miss the real change in the law. 

President Obama is actually weakening the legal authority to attack enemies who threaten the nation’s national security by diluting the clear rules of war — generally any member of an enemy armed force is subject to attack — with vague standards drawn from law enforcement. 

For the first time in the history of American arms, soldiers and airmen will have to pause before an attack so that presidential advisers can decide whether the target’s alleged Fourth Amendment rights must give way before the government’s right to self-defense; whether the target is about to launch an “imminent” attack; and whether capture is “infeasible.” 

The speed and decisiveness of our counter-terrorism operations will suffer as a result, and future Presidents will be burdened by the unprecedented notion that enemies abroad have due process rights, yet, at the same time, those rights have no meaning beyond what the executive chooses to give them.

  1. flownover

    But doesn’t this follow the lietmotiv of most of his responses to military action v. civil prosecution ?

    It appears that he has the typical liberal hate of the military and is being helped in this by folks he trusts, that coven of lib-progs over at DOJ ?

    What do you think ? Is this just another failed attempt at a power grab from the branches of government not specifically under his control ?

    Congress certainly has felt the whip , SCOTUS has felt the wrath , now it’s the Pentagon’s turn. Gitmo and the sequester are right around the corner. 

    He would just as soon start up his national police force gather up his guns and ammo and let start patrolling for no other reason than to put them on the payroll . TSA is up to 60,ooo so far, how many new IRS agents ? How many more for DHS ? Why the arms ?

  2. Valiuth

    I was waiting fot John Yoo to step in on this.Too bad about the paywall. Let me ask you this. When engaged in a war who determines who is with the enemy force? Many of the complaints raised to drown strikes is a fear that anyone can be labeled a member of a terorist organization and droned. What do you say to such fears and possible methods to negate this fear.

  3. Albert Arthur

    I knew John Yoo could address this better than I could.

  4. Pilli

    This is a direct result of the effort by the U.S. to limit the amount of collateral damage and make war more “surgical”.

    In previous wars, massive amounts of damage were inflicted on our enemies.  Now we target only those we think may be leaders.   The intended effect is leaving the followers headless.

    This type of “surgical warfare” now allows the “anti’s” to quibble over the status of the targets.  Should they really be targets?  What is the nationality of the target?  Has he been Mirandized?  Etc.

    Instead of mass destruction, we get quibbling.  No good deed goes unpunished.

  5. Valiuth

    Interesting observation Pilli. I wonder if this desire for reducing casualties is also not a sign of how nonthreatening our enemies are. In reality Al Queda posses a threat to our people but not to our nation. They don’t really have a shot at conquering us or obliterating our government. This could not be said of Nazi Germany or even Imperial Japan.

    The fact that we are so cautious and restrained I think is because we can afford to be. Sort of like a the world heavy weight champion fighting a teenager. 

    If we really felt a true and imminent threat from these wackos we would not be so restrained or cautious. 

  6. KC Mulville
    Valiuth: 

    If we really felt a true and imminent threat from these wackos we would not be so restrained or cautious.  

    That’s part of the strategic problem – so long as they don’t escalate their damage above a certain level, they feel free to attack at will, knowing that we won’t commit a large-scale response to any small-scale attack.

    That’s why cyber-attacks are particularly worrisome; they’re small-scale attacks that can multiply.

  7. LHFry

    Conservatives seem to be having trouble criticizing Obama’s anti-terror policies because they by and large support them.    They support them because they are largely George Bush’s policies and this needs to be pointed out repeatedly.  

    Obama campaigned in 2008 against policies he has now adopted – and even expanded upon.   If Dick Cheney had suggested that American citizens could be assassinated the screaming and yelling from the left would have been deafening.

    When Bush left office, he graciously said that he would withhold judgment on Obama because sitting in the Oval Office changes you.  You have different responsibilities than a Senator does.   Obama has never acknowledged his own hypocrisy or thanked Bush for his generosity.   His supporters on the left have largely been silent on his extension of the Bush anti-terror policies.   Maybe there will be a little blowback now, but we shouldn’t expect much.   Criticism is limited to “we need to work on him to change these policies…..”

  8. KC Mulville
    Valiuth: When engaged in a war who determines who is with the enemy force? 

    Excellent question.

    I eagerly await John Yoo’s answer, if he can take the time. But I will add that they’ve been arguing these provisions of the Geneva Convention since, well, the Geneva Convention.

    The traditional evidence of the enemy is a uniform (or a modern-day equivalent). It may seem like a no-brainer to not wear a uniform. But not so fast. In exchange for wearing a uniform, the world respects soldiers and protects them. We deliberately don’t give that protection to combatants who don’t wear a uniform, precisely to punish them for not wearing one. 

    So – who determines who’s in the enemy? The idea is that the enemy does, by wearing a uniform.

    Within the last two decades or so, that “deal” has been diluted and weakened. The push is for countries to treat all people not wearing a uniform with the same protection as uniformed soldiers. That, frankly, screws up the whole deal. Instead of being more humane, it takes away the motive for wearing one, but in turn, that makes everyone an equal and legitimate target.

  9. Brandon Shafer

    I read your article earlier, and I thought it was an exceptionally good take on the matter.  This just more evidence of why treating terrorism as a police problem is a mistake and dangerous.  I’ve been pleased with how the Obama administration has been restrained from trying detainees on American soil, closing Gitmo, etc.  Unfortunately this is an area they were able to get away with, and proves why the means are important.  As you say in your piece the fact of using Drones on enemy combatants be they Americans or otherwise, is perfectly fine, but by using their convoluted reasoning, they are watering down our rights here at home

  10. Tom Davis

    There is a much darker side of this that has not been addressed (as far as I have seen).  When the administration treats enemy combatants as criminals, he blurs an important line between the two.  That blurring has the potential to limit procedural protections of U.S. citizens in the USA.  If we start with the proposition that enemy combatants are entitled to due process, it is a sure bet that the limits of due process are going to shrink rapidly both for enemy combatants and for us.