In Foreign Policy Magazine, my former DOJ colleague Robert Delahunty and I continue to explore the implications of the Obama administration’s white paper on targeted killings. What would the Obama administration demand of a Special Forces team that comes upon an al Qaeda training camp in Africa? Under the normal rules of war, the soldiers could surprise the camp with snipers and artillery from a distance. Would the Obama rules require the Special forces team to pause and get instructions from D.C? Having to even ask these questions shows how impractical these law enforcement concepts are on the battlefields of the war on terror.
As we note:
In place of the clarity of the rules of war, the administration has thrust American soldiers into the three- and four-factor balancing tests that govern police officers walking the beat in downtown New York. For the first time in the history of American arms, presidential advisers will sit and weigh the “due process” rights of enemy soldiers, judge whether they pose an “imminent” threat, or decide if capture “becomes feasible.” Due process rights for the enemy, according to the DOJ memo, will require a careful balancing of the “nature and quality of the intrusion” on the enemy’s constitutional rights against “the governmental interests.” And Attorney General Eric Holder limits the target to “an operational leader continually planning attacks” against the United States.