If George W. Bush had told us that the "war on terror" gave him the right to execute an American citizen overseas with a missile fired from a drone aircraft, without due process or judicial review, I'd have gone ballistic. It makes no difference that the president making this chilling claim is Barack Obama.
The moral and ethical questions posed by the advent of drone warfare – which amounts to assassination by remote control – are painfully complex. We had better start working out some answers because, as an administration spokesman told me recently, drone attacks are "the new normal" in the ongoing struggle against terrorist groups such as al-Qaeda.
But one of the few bright lines we can and should recognize is that in the exceedingly rare instances when a U.S. citizen may be targeted, our government bears a special burden.
The Obama administration acknowledged as much in a secret Justice Department "white paper" obtained last week by NBC News. The document laid out a legal argument that the president, without oversight, may order a "lethal operation" against a citizen who is known to be a "senior operational leader" of al-Qaeda or an affiliated group.
This is not an academic question. In 2011, a CIA drone attack in Yemen killed Anwar al-Awlaki, a U.S.-born cleric who had become a leading figure in the terrorist franchise known as Al-Qaeda in the Arabian Peninsula. Two weeks later, another drone attack killed Awlaki's 16-year-old son.
Awlaki was believed to have been directly involved in the near-miss "Underwear Bomber" plot to down a civilian airliner on Christmas Day 2009, as well as the planting of two bombs – fortunately, discovered before they could explode – on Chicago-bound cargo planes in 2010. Perpetrators of several other attacks cited Awlaki's fiery sermons and, in some cases, his personal messages as their inspiration.
I shed no tears for him. But as the Justice Department document admits, U.S. citizens have constitutional rights. I am deeply troubled by the notion that the president can unilaterally decide those rights no longer apply.
The white paper specifies the conditions that must be met before a citizen is targeted for obliteration. Among them is that he or she must be planning an "imminent" terrorist attack. The document then argues for a remarkably elastic definition of imminence.
What I don't accept is that the president or a "high-level official" gets to make the call without judicial oversight. When the government wants to violate a citizen's right to privacy with wiretaps and other forms of electronic surveillance, a judge from a special panel – the Federal Intelligence Surveillance Court – has to give approval. Surely there should be at least as much judicial review when the government wants to violate a citizen's right not to be blown to smithereens.
This oversight would occur when the decision was made to place a citizen on the "kill list" of targets – meaning there could be no "hot pursuit" scenario in which a drone had a target in its sights but the aircraft's controllers had to get a judge's approval before firing. Keep in mind that the question of targeting a citizen would come up only rarely. Also keep in mind that the "drone court," like the surveillance court, would surely grant almost every government request.
The practical impact of providing for judicial review in targeting citizens would be practically nil. But doing so would help us establish a conceptual and legal framework for this new, unsettling form of warfare.
No president could become aware that specific enemies are planning attacks against the United States and not take action. This would be an unconscionable dereliction of duty. If the plot is being developed in a place like Yemen or Somalia, what are the options? Order a Special Forces commando raid, risking American lives? Mount a full-scale invasion? Or send up a flying robot, armed with a missile?
As drones become more sophisticated, the range of missions for which they are used will grow. And as the United States demonstrates the military potential of drones, other nations will build their own robot fleets. We need to realize that the future is now.