Last week's confirmation hearings for CIA director-designate and top counterterrorism adviser John Brennan fueled the debate about targeted killings by drones. The leak of a Justice Department memo explaining the basis for extrajudicial killings of American citizens implicated in terror activities has been particularly controversial. While some criticisms of drone strikes are naive, these policies should raise grave concerns even among those of us who believe that the War on Terror is a vital necessity.
According to the memo, if capture is not feasible, the U.S. government can order the killing of a U.S. citizen overseas if an "informed, high-level official" has determined that this person is involved in activities posing an "imminent threat" to the United States -- broadly defined to include general terrorist plotting, not just plans for a specific attack -- and is linked to al-Qaida or "associated forces."
Many across the political spectrum -- from the conservative National Review to the liberal American Civil Liberties Union -- have voiced dismay about this license to kill. But the policy also has defenders, such as Harvard Law School professor Jack Goldsmith, a former assistant attorney general in the George W. Bush administration. It's hard to disagree with Goldsmith when he writes in The New Republic that "Our constitutional democracy does not require the president to remain passive in the face of threats . . . regardless of the citizenship of [their] author" and points out that the concept of an imminent threat must take into account modern-day technological capabilities.
The use of drone strikes as a counterterrorism strategy, whether directed at Americans or not, has long been denounced by both the left and the libertarian right. Many critics tend to downplay the terror threat, refusing to recognize that we are the target of a very real war waged by an ever-morphing enemy. Meanwhile, some critics on the right have indulged in paranoid fantasies about Barack Obama's dictatorial ambitions, even warning that the administration's next step will be to claim the right to kill dissenters at home.
The only U.S. citizens deliberately targeted by drone strikes so far, Anwar al-Awlaki and Samir Khan, were al-Qaida operatives directly involved in engineering terror attacks aimed at the United States. (Al-Awlaki's teenage son, also an American citizen, was later killed as a bystander in a drone strike against another target.) Such men's status as U.S. citizens should not shield them from the consequences of waging war on their own country.
And yet the flexible criteria set down in the Justice Department memo are cause for alarm. The U.S. government using counterterrorism as a cover for killing political undesirables may be a highly far-fetched scenario, but the Constitution is meant to safeguard us even against unlikely threats to our civil liberties. There is also the danger of unintentional error. What if an American writer, photographer or human rights activist traveling in war-torn regions is wrongly suspected of being an al-Qaida operative, or even set up as a fall guy by real terrorists?
In a war of indeterminate length and reach, it's particularly important to have strict congressional and, if at all possible, judicial oversight of actions that could lead to the loss of innocent life. In this respect, perhaps the best-case scenario is to have a Democratic president leading the anti-terror effort. Liberals will be inclined to hold the administration's feet to the fire because of their general skepticism of the war on terror; conservatives, because of their general skepticism of government overreach under Democratic administrations.
Perhaps this is one area where this divided Congress can come together to produce a better policy -- one that allows for decisive action with better safeguards.