What neither a “drone court” nor any other legal structure will change about our system

Reading a not very well-formed counterfactual this morning, regarding the Conflict Formerly Known as the War on Terror and in particular the justifiability of targeted killing to prevent the 9/11 events, I began to think about some commonplaces of our discussion on the executive in the American system. As for the particular “mind experiment” in question, it asks us to imagine too many impossible things – among others that there was already a weaponized drone capacity and system in place in Afghanistan in August 2001, and furthermore that attacks on Al Qaeda in Afghanistan would have necessarily had a direct effect on the events in the U.S. the following month. Trying to make better sense of these somewhat nonsensical premises would require a survey of realer alternative universes in a way that, by working of the usual convergence principle, would lead us back to our own best and only of all possible worlds. The underlying issue of executive power remains worth considering, however, both historically as well as counter-historically.

To address the question as it might have been posed, any president who receives actionable intelligence of an attack on U.S. citizens or allies that can practicably be interdicted will have and will be to seen to have the responsibility to order such interdiction, with military force if necessary. A president who declined to act in such an instance would be shirking responsibility, and might very well be putting his or her presidency in danger. In this sense the effective declaration of war in the Authorization for Use of Military Force Against Terrorists of 2001 merely concentrated the executive mind, removing certain second thoughts along with potential impediments to action. Indeed, it has been something of a deep and unquestioned presumption, in concept since Hiroshima and Nagasaki, that the American president has the ability, in theory, not just to act on a relatively low level against whatever particular threats, but to order the annihilation of very large numbers of people, even to precipitate acts of world-historical evil, without formal consultation of any kind. Any American president simply by giving such orders, even if they were disobeyed, could plunge the nation and the world into crisis, and it is also worth noting that for several decades up to the present day, the American president has not been the only leader with that ability, if to this point only the American and Russian or Soviet leaderships have had the power not just to kill millions and destroy nations, but, possibly, if Nuclear Winter and alternative ecological theories of the effects of mass nuclear detonations are sound, to eradicate human civilization and even the global environment as we know it.

To step back from the Armageddon-level options that still follow our chief executive around in a briefcase, there remains only a post hoc and in the highest sense political check on a president’s interpretation of Article 2 powers. In non-global-apocalyptic but merely national apocalyptically extreme cases, a president may even interpret his designated and implied responsibilities to allow for flagrantly unconstitutional and extra-legal measures: It should suffice for us to return, as frequently, to the actions of President Abraham Lincoln, specifically in nullifying the requirement for writ of habeas corpus, generally in prosecuting war against insurrectionists on the basis of his own judgment until eventually approved by a wartime Supreme Court. At such points, it is “up to history” to determine whether the executive has done the right thing – will be memorialized with a sacred monument or will instead receive a tearful farewell under threat of impeachment. History might arrive very early if the orders are received as criminal or insane by those tasked with implementing them: So the first test is whether the orders are sensible enough to be carried out at all. The answer in such an instance will in turn depend on the concrete character of the threat and the intelligence on it, relative to context. A president ordering a pre-emptive attack against hallucinations will be in a different situation than a president ordering a fighter pilot to shoot down an airliner being steered into a skyscraper on live TV.

If we return to history as we more or less know it, we can observe that presidents have been conducting covert “warfare” without or well beyond any literal or tacit declarations of war more or less continuously since at least the lead-up to American entry into World War II. Under a closer consideration we will be forced to conclude that presidents not only have been acting, but have always been expected to act on their own, and only afterward submit their conduct to external judgment. That is the meaning of executive power, and we are indulging in a fantasy of ideal liberal faith if we imagine that a fully elaborated legal regime will ever succeed in anticipating, or ought to be constructed to anticipate, all possible instances calling for executive discretion. Any such attempt will merely re-locate this executive necessity – the sovereign decision on the exceptional circumstance – elsewhere, perhaps in the legislature or the courts, or perhaps, after failure of such an idealized system, in the strengthened executive of a successor regime.

In short, we prefer things “this way,” not because we approve of every particular action by presidents acting beyond the law, but because the ability of the executive to do so is definitional for the entirety of a sovereign liberal democratic order. Because this design is definitional and systematic, there will turn out to be no true alternative that would not entail comprehensive alterations eventually affecting every aspect of national life. We can express this notion by a different counterfactual: If we remove executives acting beyond the law, then American history starts becoming unimaginable and unrecognizable beginning with the Thomas Jefferson Administration at the very latest. ((A partisan of the Native American and other anti-U.S.-imperial lost causes might be tempted to embrace this very broadest of counterfactuals, but would have to deal with the existence of several other European powers ready to facilitate, adjudicate, administrate, and where necessary co-execute the popular invasion of the New World by the Old. ))

To return to the present situation briefly, establishment of an elaborated administrative and legal framework for targeted killings, whether in general or exclusively in regard to American citizens, may be worth doing for a range of reasons. Perhaps the best reason for doing it will be not that it would work as intended, but that it would express and help realize an expectation of a more moderate approach to national self-defense and war powers. Yet no one can predict what some future president or congress, in the circumstances of some future emergency, could do with a court empowered to validate assassination plans. Nothing in any law can prevent us, through a president’s designs or perhaps through attempts to pre-empt them, from destroying ourselves politically, morally, and otherwise, if we so choose or if events choose so for us. At best, we can put up impediments, and tell ourselves, because saying so makes us feel better, and because feeling better has its uses, that we have done what we could.

11 comments on “What neither a “drone court” nor any other legal structure will change about our system

Commenting at CK MacLeod's

We are determined to encourage thoughtful discussion, so please be respectful to others. We also provide a set of Commenting Options - comment/commenter highlighting and ignoring, and commenter archives that you can access by clicking the commenter options button (). Go to our Commenting Guidelines page for more details, including how to report offensive and spam commenting.

    • I agree with much of the post you link, but many will continue to argue as though there is some magic legal bullet or system of prior restraints that will do the job they say they want done. Whether any of us wants anyone in particular to hold “such power” is mostly irrelevant. A bad president would still have a very wide field for doing bad things. Even an unusually good and responsible president overflowing with good intentions might end up doing very bad things, with or without an already-in-place anti-terror targeted killing program.

      • I think this is the strongest point against the anti-drone crowd. It’s hard for us to admit that military solutions are actually pretty politically popular, at least in the abstract. Ideally your criticism should goad anti-droners to explore how political demand for drone attacks arises from cultural sources, so their critiques can attack the root of drone evil.

        That said, you seem to think that drone critics are necessarily confused, and I think this goes too far. Some critics hate drones because they think they create more “terrorists” than they eliminate, and because they turn local populations against the United States and thus disrupt intelligence-gathering, and so drone strikes are theorized to perpetuate an avoidable cycle of violence. Insofar as these concerns are empirically plausible, they don’t seem to fall prey to the theoretical criticisms you’ve made here and elsewhere (though other criticisms may deal sound blows). What do you make of this?

        • I think the concerns are certainly plausible, but are to the same extent beyond the capacity of “amateurs” – in other words citizens – to calculate. We have in place a decision as legitimate as the entire system, a kind of pure expression of our mass-liberal democratic polity, recognizing terrorism as an intolerable threat. That’s one reason I pointed to the word “any” in the AUMF language in the prior post. We have charged the government with using all “necessary and appropriate” measures to prevent “any” repetition of attacks on the homeland. We are not willing to absorb “any” international terrorism against us. So that means that anyone who wants to be president will have to be ready everyday to stop any attack. If such prevention today “makes more terrorists,” then we’ll fight harder tomorrow. Until we change our minds, either because we get a different religion, or because we decide we’d rather give in, potentially the same thing, we have in place a decision whose logical end point is the same “bottom line” we survived and, in our minds, prevailed with during the Cold War: We’d rather destroy the whole world than give up our “way of life,” which “way of life” includes our freedom to do what we want. We have not yet begun to destroy, relative to our actual capacities.

          Now, it may be that the “makes more terrorists” argument is flawed in various ways. It may make more people inclined to be terrorists, but it may eliminate the people with “real terrorist capacity.” Maybe we can tolerate 1,000 more low-level operatives not actually capable of attacking the American homeland for every higher-level operative capable of generating such an attack whom we eliminate, for example. Or a president could, conversely, reasonably close or scale down the program at the point where producing 1,000s more low-level operatives really was its sole or main product. That would be an executive-level judgment call requiring access to information, and also responsibilities, that we do not and cannot share equally. It may even be about where we are.

  1. Well it assumes a fair number of things, like the lack of detail in the August PDB, the fact that none of the players, except Abu Zubeydah were mentioned in the document, also there’s the problem, that most of the cells were already in the country by that time, only the fifth compliment to United 93, was vacant, however, taking that into account, it would have been almost mandatory to attempt something, if we had said resources, perhaps the Trodpint teams.

  2. Well it still raises the fundamental question, who would have the authority, could a drone court, make this decision, Awlaki pere, is an easy choice, but others are less so, how do we end up with a circumstance when the tribal chief of Ma’rib, ends up in the target zone,

    • As I had reason to point out the other day, one species, perhaps the purest species, of liberalism on the whole matter is that reform need not claim to have changed a single past act in order to be justifiable. In other words, you can presume that everything was going to be the same, but it would still better for if a comprehensive legal and administrative framework was put in place as a check on future misuse, expanding lawlessness, breakdown of confidence, etc.

      Whether an eventual FISA-like system turned into a rubber stamp – in what circumstances a judge or panel of judges might stand up to an administration – that’s all open to speculation at this point. Much will depend on the course of actual events in the post-WOT WOT.

  3. I recall when Sy Hersh excoriated Bush for having taken out a leader of the nascent Yemeni branch of AQ, al Harethi in 2002, how Zubeydah’s capture and interrogation, along with that of KSM, and the information from them, dismissed, when Zawahiri was missed in 2005, in Bajaur, there were no excuses,
    when other players were taken off the board like Setmarian, who btw is free now, no credit given, It’s the ‘nature of the business’ paraphrasing Glenn Frye, ‘its the CounterTerrorism Blues’, but the doublestandard is gaping,

    • We’re right now at peak or near-peak consensus that the past consensus was wrong, though that past consensus was also a rejection of a prior consensus, and so on. Very few people are keeping as close a score as you seem to be, and very few are basing their preliminary historical judgments, which it goes without saying are politically conditioned and therefore biased judgments, on any particular single factor.

  4. Well I recall how Yoo and Addington, was threatened with prosecution, and disbarment, how Cully Stimson was threatened with disbarment, I believe John Rizzo is still incurring liability as former CIA counsel, so one wonders who decided to target Ibrahim Al Banna in such a slipshod way, how did Shabwani end up in a UAV’s sights.

Commenter Ignore Button by CK's Plug-Ins

Leave a Reply

Your email address will not be published. Required fields are marked *