The drone policy in all of its horror is itself a reaction to and indirect consequence of previous rounds of entirely well-intentioned criticism of the same type, and represents a further, as ever two-sided, penetration of legalism and humanitarianism into the conduct of war, not some “unprecedented” departure from legality and humanity.
I suspect that Kotsko features himself an interesting radical rather than a mere liberal. It would seem that in this context, both liberals and radicals are “inconsequentialist.” The difference is that the liberals are committed to discussion (perhaps “at other blogs”) that goes nowhere, if without their knowledge; the radicals continually re-commit themselves to nothing – openly and consistently – that is, hypocritically.
We are hostages to the decision, including our own collective decision on one “decider” as opposed to another. Articles like Lewis’, if they reinforce our confidence in the existent rather than the ideal executive, help us to accommodate ourselves to a void in the law and its effects: The existence of this void can serve our needs; or it can be hemmed in politically – which is to say partially and provisionally; or it can be survived until the day it happens to kill us – but it cannot be legislated or reasoned way. So we can expand our general observation on liberalism – including the liberalism that advertises its libertarian purism or its republican virtues or its partisan conservatism, with or without the tri-corner hats and Minuteman costumes: As we know, it has nothing interesting to say about these issues. It does, however, very much like to pretend that it does.
Regardless of where we come down in the end on the wisdom and justifiability of the administration’s war policies, criticism that does not take the full debate and its real subject into consideration, that merely repeats what we already know – that war is awful and morally, culturally, and politically deforming; that it exceeds the terms of normal, lawful policy; that it makes us act like “barbarians” all on the way to Hell – does not deserve to be and likely will not be taken seriously.
If progressives believe, or know whether they believe, that exceptional measures were justifiable, but went wrong, then an entirely different replacement regime and set of reforms might make sense than if they believe common rhetoric about rule of law mattering more than all other concerns, whatever the costs or risks. On the other hand, if they believe the War on Terror was in fact a self-obviating success, then they might wish to replace the AUMF with a new legal and administrative regime that acknowledges and learns from authentic successes – successful warmaking against a real and legitimate, not simply ideologically constructed enemy – as well as from errors.
To step back from the Armageddon-level options that still follow the U.S. president 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 powers to allow for flagrantly unconstitutional measures: We return as frequently to Lincoln during the Civil War, nullifying the requirement for writ of habeas corpus, generally prosecuting a war against insurrectionists on the basis of his own judgment until eventually recognized by a wartime Supreme Court. At such points, it is “up to history” to determine whether the executive has done the right thing – will get a monument or a tearful farewell under threat of impeachment.
The Drones as symbol refer us to a tyrannical, imperial, not merely mechanical but super-biological or super-organic, invulnerable, temporally and geographically unbounded, and most of all cruelly lethal power that has already annihilated the human being ideally before it sends its “Hellfire” missile at him to finish the job, while also morally annihilating the distant human pilots and their masters, the latter group eventually including all of us who benefit or who possess a moral share in the program as citizens of a democratic republic.
The pathos of the libertarian lament reminds us of real death and suffering, and of real failures of policy and moral imagination, but such stubborn self-insistence makes it difficult for others to speak to the would-be prophets other than as to children. Here as so often, the ideological libertarian position reveals itself to be implicitly pacifist and essentially anti-political, in a word utopian, in calling for an impossible polity, one that would be inherently incapable of defending itself or its integrity against violent opposition, whether from actual states or from so-called non-state (actually crypto- or proto-state) actors.
The overall dysfunctionality of a political discussion can be the product of countless such lesser dysfunctionalities, though the overall dysfunctionality of that discourse may in turn be what makes it manageable, or manageable enough. We dislike things the way they dysfunctionally are, and that is how we like things.
Final responsibility for the defense of the constitutional order necessarily implies the ability to dissolve the constitutional order – if not by ordering up a nuclear war or declaring a state of emergency, and so on, then by simple failure to act against a threat to it or to fulfill the responsibility of his office. The scope of presidential power is in this sense at least commensurate to the scope of the legal order.