Drone strikes need more oversight

What’s needed in the debate over the killing of American leaders of al-Qaida is a middle ground.

Luckily, a middle ground is emerging, and former Defense Secretary Robert Gates is its most respected champion.

Congress should adopt policies that broadly reflect Gates’ views.

A secret Justice Department memo “concludes that the U.S. government can order the killing of American citizens if they are believed to be ‘senior operational leaders’ of al-Qaida or ‘an associated force,’” NBC News reported last week.

The memo “lays out a three-part test that would make targeted killings of American lawful.” But not mentioned at all in the test are constitutional considerations such as the right to a jury trial.

Columnist Glenn Greenwald describes the result: “The president’s underlings compile their proposed lists of who should be executed, and the president — at a charming weekly event dubbed by White House aides as ‘Terror Tuesday’ — then chooses from ‘baseball cards’ and decrees in total secrecy who should die.”

Greenwald is a no-holds-barred critic of the policy and demands that suspected terrorists — like Americans suspected of other crimes — be given full due process rights.

But Greenwald ignores Americans’ almost universal sense that terrorism resembles warfare much more than it does crime. And as former Bush administration advisor John Yoo writes, “U.S. citizenship doesn’t create a legal force field around Americans who treasonously join the enemy. During the Civil War, every Confederate soldier remained a U.S. citizen. In World War II, Americans joined the Axis.

“As the Supreme Court reaffirmed in Hamdi v. Rumsfeld in 2004, ‘Citizens who associate themselves with the military arm of the enemy government … are enemy belligerents.’”

Yoo then takes to the other extreme, saying the memo — toughminded as it is — “reveals how a legal fog threatens to envelop U.S. soldiers” on the front lines.

“The administration has replaced the clarity of the rules of war with the vague legal balancing tests that govern policemen on the beat.”

And with that, it’s Yoo who goes too far, because terrorists aren’t exactly like Nazi or Confederate soldiers. Terrorists don’t wear uniforms, don’t assemble in armies and don’t live in barracks far away from cities and towns.

They’re far harder to identify and isolate than soldiers are, in other words. That’s why different rules must apply.

Enter Gates.

“I’m a big advocate of drones,” Gates told CNN.

And “I think that the rules and the practices that the Obama administration has followed are quite stringent and are not being abused.”

Even so, Americans are right to be nervous about making one man prosecutor, judge, jury and executioner, Gates said.

So, some kind of oversight is needed: “Whether it’s a panel of three judges or one judge or something that would give the American people confidence that there was, in fact, a compelling case to launch an attack against an American citizen — I think just as an independent confirmation or affirmation, if you will — is something worth giving serious consideration to.”

Gates is right — and Obama himself seems to agree: “One of the things we’ve got to do is put a legal architecture in place, and we need congressional help in order to do that, to make sure that not only am I reined in but any president’s reined in terms of some of the decisions that we’re making,” Obama said last year.

Congress should heed Gates and the president’s concerns.

Tags: opinion, editorials, military