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.