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How to hold the president accountable for lethal decisions

February 6, 2013, at 6:56 PM

On the question of executive power and drone strikes, my mind splits. One the one hand, the government's position is not reassuring. It dismisses what it ought to take seriously, which is the question of due process. The government admits that it cannot really know for a fact whether its target is imminently intending to harm the United States, or even if the target is of sound mind and body to make the threats. Instead it asserts, basically, that any U.S. citizen who verbally associates with al Qaeda overseas deserves less due process than a confirmed enemy belligerent captured on the battlefield and detained. I have no idea who "informed senior officials" are.

The government also insists that the nature of the war against terrorism render elastic such notions as "imminence" and empirical evidence. But really, what the government is saying is that it has decided as a matter of policy to NOT devote the man-intensive resources necessary to capture these bad guys, and instead has decided as a matter of policy that it is more efficient and less costly to human life to simply kill them. In fact, every time a due process objection arises, the government slams a big Jeremy Bentham book on the subject: Everything, when weighed against the president's duty to protect American citizens, is sufficient to outweigh claims that justice requires at least some form of neutral and intelligible procedures to be achieved.

But: A citizen who willingly joins a terrorist group that is actively plotting attacks against the United States surrenders, if not the benefit of the doubt, then at least the pretense that he has not joined an enemy of the state. The fact that must be determined here, and I think only the executive branch can make this determination, is whether or not Marc Ambinder has actually joined al Qaeda. That is the salient fact. That is what the government's rules are set up to determine.  

These procedural justice issues are epic, but what's the solution? Absent one, the government can either make up its own rules, or it can stop the practice entirely. I would prefer a broad rethink of our UAV policy, but I also believe that the drone strikes do pre-empt violence, even as, in certain cases, they may seed the ground for more violence in the future. In the short term, it's a viable policy. In the long-run, it might backfire.

But I don't want to trivialize the president's constitutional duty to protect the country either. I don't think Congress has the wherewithal to determine, ahead of time, who belongs on a target list and who doesn't. I don't think the judicial branch would want that responsibility, especially given the time constraints that accompany the targeting process.

What I would like to see, and what I think IS feasible, is a system of post-facto accountability. It would require more transparency by the executive branch but would not interfere with their decision-making. The lawyer or "informed person" who signed off on the killing would be required to submit a dossier to a judge, perhaps on a special panel, who would review the decision chain and determine whether the government met its own criteria both literally and substantively. The court would release to Congress and the public redacted versions of its decisions. If it found that the president was using these powers indiscriminately, we, the people, would know. We would know well after the fact, which is a necessary evil, but we would be able to do something about it.

We do this with wars. We do this with FISA warrants. We do this with police shootings. We are smart. We can figure out how to do with terrorism.

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