Last week's leak of a Justice Department "white paper" purporting to justify the remote-controlled drone killing of an American citizen without charges or trial raised anew the question whether President Obama's counterterrorism policy is more a continuation than a refutation of his predecessor's controversial and much-criticized approach. Peter Baker wrote in the New York Times that President Obama has "embraced some of Mr. Bush's approach to counterterrorism." Notre Dame Law School Professor Mary Ellen O'Connell compared Obama's authorization of drone strikes to the Bush administration's secret memos authorizing the CIA to subject terror suspects to waterboarding and other abusive interrogation tactics. John Yoo, author of the Bush administration's initial "torture memos," got into the act himself, contending in the Wall Street Journal that drone strikes "violate personal liberty far more than the waterboarding of three al Qaeda leaders ever did."
More...
But claims that Obama is channeling Bush are grossly exaggerated. While both chose to use military as well as law enforcement measures to respond to the threat posed by al Qaeda, there is a world of difference between the approach Bush took to war powers and that taken by President Obama. Where Bush treated the law as an inconvenient obstacle to be thrust aside in the name of security, Obama has sought to pursue al Qaeda within the framework of the laws of war. Many of Obama's policy choices deserve criticism, to be sure. And his reliance on secrecy is particularly disturbing. But to paint the two leaders with the same brush is to miss the difference between a leader who seeks to evade the law, and one who seeks to abide by it.
There are certainly disquieting parallels between the authorization of drone strikes and the authorization of torture. Both relied on secret Justice Department memos that redefined terms in ways that defy common sense. Where the torture memo said that only pain of the intensity associated with "organ failure or death" constituted torture, the drone memo argues that the United States can kill in self-defense even where no attack is underway or being planned, radically redefining the traditional requirement of an "imminent" attack as only George Orwell could have. Where the torture memo claimed that "enhanced interrogation" was not barred by a federal law against torture, the drone memo argues that killing an American in Yemen with a drone does not violate a federal statute that prohibits killing an American abroad. Both memos were secret until leaked to the press. (Indeed, all of the underlying memos authorizing drone strikes remain secret; the white paper is merely an unclassified summary of one such memo.) And both the Bush and Obama administrations have sought to dismiss any legal challenge to their respective policies by declaring them secret.
But these similarities should not obscure a fundamental difference. Under the laws of war, international human rights, and the U.S. Constitution, torture is never lawful.
The Bush administration sought to institutionalize the infliction of cruelty and torture as a tactic in its "war on terror," in the face of overwhelming authority that it is never a permissible option. Killing, by contrast, is an inevitable if regrettable aspect of war. No law, treaty, or constitutional provision prohibits killing the enemy in wartime, or in self-defense. On the contrary, the Constitution recognizes the authority to engage in war, and the laws of war permit the use of lethal force as long as it satisfies basic requirements of targeting only the enemy, minimizing collateral damage, and the like. Killing in war time by drone is no more or less legal than killing by bazooka, bayonet, or bomb.
Nor is there anything inherently unconstitutional about killing American citizens. President Lincoln authorized the killing of hundreds of thousands of Confederate soldiers, but no one claims that violated due process. If an American were fighting with al Qaeda on the battlefield against us, few would contend that due process bars our soldiers from shooting back at him. There is no dispute that the taking of an American's life must comport with due process, but there are significant questions about what due process requires in a war setting.
Admittedly, there are many disputes about the applicability of the laws of war to a conflict between a state and a nonstate actor, such as al Qaeda, and about the geographic scope of such a conflict where the nonstate actor may operate in a number of different locales, some far from any traditional battlefield. But the point is that they are difficult and unresolved questions; by contrast, there is no question about the legality of torture.
Thus, where Bush sought to rationalize a universally proscribed war crime, Obama is seeking to chart an appropriate legal course in a new setting of a well-established and generally lawful military tactic: killing the enemy.
SUBJECTS:
