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Is any due process for targeted killings possible?

February 13, 2013, at 4:02 PM

One of the most perceptive and persistent critics of the president's use of drones for covert operations outside war-zones is Conor Freidersdorf, a conservative and former colleague at the Atlantic

Friedersdorf's primary objection is, and has always been, the lack of due process for the targets. By "due process," he means the procedural rules of justice inherent in law as understood by reasonable people and manifested primarily in the form of independent checks on the president's power. 

Here is his criticism of my proposal for a post-facto accountability court for such actions:

Even Ambinder, in his hypothetical about a president killing people "indiscriminately," can't bring himself to say that we'd arrest, try, and imprison him. Instead, he merely says that "we, the people, would know" that he abused his power, and that "we would be able to do something about it." But would we do anything? George W. Bush abused his power. Obama has abused his power too. Everyone paying attention knows this. We're just unwilling to do anything about it. Like a misbehaving Wall Street bank that pursues short-term goals while corrupting the system to which it belongs, every presidency is treated as if it is too big to fail. After the fact, we'll always bail out presidents.

Protecting the innocent and the rule of law must be preemptive.  

Says Ambinder, "I don't want to trivialize the president's constitutional duty to protect the country." Like everyone these days, he misleadingly paraphrases the actual oath of office that every president swears: "to preserve, protect, and defend the Constitution of the United States." 

This illuminates a genuine dilemma, one about basic justice and fairness. I want to try advance it a little. First, I want to clarify what I mean by the president's "constitutional duty." I am not referring merely to his oath but also to his directly enumerated power as commander in chief of the military of the country. And surely his oath to protect the constitution is an oath to protect what the constitution itself protects, a sense of which is contained within its preamble: establish justice, ensure domestic tranquility, provide for the common defense...and secure the blessings of liberty for ourselves and for posterity. That would include both of the goods that we are discussing: justice and defense. 

Point one: the executive branch needs to take seriously the injunction to balance these goods, and not just to give lip service to the idea of balance. That, in return, requires some sacrifice. To truly establish a legitimate system where the ultimate executive power can be exercised properly, it must relinquish partial control of one of two sacred entities: the ability to take unilateral action in defense of the country or their customary, habitual, instinctive disposition towards keeping such actions secret.

Giving up on the absolute secrecy is, in my view, the more feasible of the two. And it would almost certainly impact the first equity, too. I accept the argument that a person who joins al Qaeda is an enemy combatant. I don't assume that everyone the Obama administration claims to be a combatant is a combatant; I'd want to see proof first. But I'd don't see a viable mechanism for establishing this independently without unduly constraining what I do see as a legitimate and non-constructed duty of the president, which is to take action to protect the realm from external threats. 

Taking due process for the targets seriously though does imply some sort of restraint. To me, that restraint comes in the form of a presidential declaration, signed by the President, an elected official, attesting to the necessity of the action. Such a testament must include a summary of the evidence. It can be sanitized somewhat to protect sources and methods, but the fact that someone is going to be dead is enough of a tip off to the bad guys anyway. This summary might well be transmitted to the Gang of 8, or to a national security judge, beforehand, even if immediately beforehand, once the determination was made. (The actual day of execution is immaterial, as it obviously could change due to events on the grounds.) If necessary and in extraordinary circumstances, the executive could provide this testament to another branch of government after the fact. This is not perfect and it does not satisfy my innate sense of justice, but seems like reasonable balancing of equities.

How would presidents be held accountable for their actions? There must also be some public accountability. Somehow, we — myself, Conor, Glenn Greenwald, Dick Cheney — would need to know, for the historical record, what's transpired. I agree: the president is not likely to be arrested. A president who fears arrest for ordering the killing someone outside the United States that is considered an enemy of the state is unlikely to order the killing unless he is absolutely, 100 percent certain that he can make a case for that killing in a court. I submit that, in the interests of our balance of values, subjecting the president to that level of fear a priori is almost cinematic in its own ignorance of the consequences.

Not the least: it is not an idea that anyone in that position would entertain.  f you can find a Congress and a judiciary branch willing to impose this condition on a president, much less a president who would entertain this, then please, bring them to my attention immediately. Incidentally, this condition would have to would apply to everything: special mission unit raids, covert operations, traditional military operations conducted in secret, cruise missiles launched from submarines — and not just drones. There is nothing special about drones. 

So:

1. Pre-facto accountability in the form of a presidential declaration

2. Post-facto accountability in the form of a judicial review process that could recommend changes to the decision-making criteria in public, this putting pressure on the president to change the policy

3. Historical accountability, in the form of a collective judgment on the president's legacy.

This is not the due process that I'd receive in the United States. But it is, I think, a reasonable and potentially effective curb on this awesome and scary power — a more commonly exercised power.

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