The phony constitutional case against drones

[DonViejo]

Right Turn
Jennifer Rubin's take from a conservative perspective

BY JENNIFER RUBIN
May 21 at 10:15 am

On Tuesday, Sen. Rand Paul (R-Ky.) announced he planned to filibuster a judicial nominee today and released planned remarks, “I rise today to oppose the nomination of anyone who would argue that the President has the power to kill American citizens not involved in combat.” That addition of “involved in combat” is something new and raises even more difficult questions. (Does “involved in combat” include planning a bombing operation? Attending a jihadist training session?) Moreover, if there is a constitutional right to kill Americans “involved in combat” against the United States, where does Paul get the prohibition on killing those who have taken up arms but aren’t yet in combat? Simply put, he’s making it up.

He continued, “I rise today to say that there is no legal precedent for killing American citizens not directly involved in combat and that any nominee who rubber stamps and grants such power to a President is not worthy of being placed one step away from the Supreme Court.” He is wrong there on the facts. David Barron, whose nomination he says he will filibuster, in fact came up with a long list of restrictions on the president in the use of drones. The idea that Barron was recommending a free hand for the president is simply false.

Indeed, as we have argued before, Paul’s position has little support among lawyers from a wide ideological spectrum. Benjamin Wittes of the Brooking Institute, a centrist well-respected by Democrats and Republicans alike, along with Daniel Byman, has put out a useful legal analysis on this topic. Rand Paul and others should read it (including the footnotes) in its entirety, but this is especially on point:

The major advantage to killing suspected terrorists—to put the matter bloodlessly—is that it removes important, skilled operators from the ranks of the enemy when their capture may not be an option, and it does so without significant litigation risk. Just as important, the threat of force compels those on the run to play defense. Drone strikes rely on spies, on intercepted phone calls, and on other forms of intelligence to pinpoint their targets. To reduce exposure to drones, terrorists must trust fewer people, talk on the phone or use the internet less, and otherwise minimize their contact and communications. In so doing, however, they become less effective as terrorists. An Anwar al-Awlaki who cannot use a computer or phone cannot inspire others to join the jihad or instruct recruits on the best targets to strike.

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http://www.washingtonpost.com/blogs/right-turn/wp/2014/05/21/the-phony-constitutional-case-against-drones/?

[sopfrote]

1. Drones are bad.

[DesMoinesDem]

2. Thanks for the article. I really value what neoconservatives think about drones.

Do you have anything by Bill Kristol?

[DonViejo]

4. If one of his columns addresses the issue of drones

(or any hotly discussed subject on DU) and is published in an MSM outlet, e.g., the Washington Post, LA Times, NY Times then yes, I will post it. This is the Politics forum, not the General Discussion; folks come here to discuss politics, others come to learn the Liberal-Progressive position or, what other folks think about a wing nut columnist criticizing Rand Paul and arguing in defense of drones. Obviously you came to the forum to criticize, if not insult. Regrettable.

[frylock]

3. well gosh, if a well respected centrist from the conservative Brookings Institute sez it's all cools

who am I to argue?

[DonViejo]

5. There was a time when the description of the Brookings...

always linked it to the Democratic Party. Grrrrr

[struggle4progress]

6. One could, I think, object to such operations as the drone-strike on Awlaki

on many different grounds, but I agree that the "it's unconstitutional!" argument is extraordinarily weak, and I think that argument has no political future

For example, there's probably a good "blow-back" argument against drone-strikes: when used on low-tech populations (which seems to me the common current and likely future usage), I cannot imagine any long-term local effect, except to induce general fear and loathing in the population, especially as innocent casualties seem likely. And for this reason, the drone-strikes seem to me guaranteed to produce a reaction that is not in the long-term, interests of the US. But I have never had much success with blow-back arguments, though the history convinces me that blow-back is a real phenomenon and can have last for decades

More generally, arguments against targeted assassinations might have some prospect, since they seem morally problematic. I know a number of people who wondered why we couldn't have arrested Bin Laden and brought him to trial, if we were able to storm his compound to murder him. Of course, those attempting such an arrest have the right of self-defense. And there is a long history of deliberate assassination in times of war: witness (say) the shoot-down of Yamamoto's plane in WWII

When ordinary criminal process is feasible, there's a good argument it's required: just like police on a city street, military personnel have no warrant to kill a subject in custody and under control. And no one of sound mind will claim an unrestricted right of US law enforcement to deliberately kill a subject not in custody. But in the context of war, the situation may differ significantly for a subject, regarded as enemy and not in custody

So the Tools and Trade-offs document doesn't say anything really controversial IMO

[imthevicar]

7. What twisted people

defend the killing of Americans without due process.