Georgetown University Law Professor David Cole surgically guts the Justice Department's "White Paper," and his thrust is this:
The paper asserts that [any kill-order] assessment is best left entirely to the executive because it involves foreign affairs and military tactics, and maintains that judicial review would impermissibly require a court to "supervise inherently predictive judgments by the President and his national security advisors." But courts review executive predictive judgments every time they rule on a government request for a search or wiretap warrant, including those sought for national security purposes under the Foreign Intelligence Surveillance Act. If courts routinely issue warrants for arrests and searches, why are they somehow unable to issue warrants for drone strikes?
Yet there's an ethical issue here of an almost purely political nature, too, and I confess no little guilt. To wit ...
A kill order issued by President Obama or an "informed, high-level official" of the Obama administration is one thing, and it's a thing I'm reasonably comfortable with--chiefly because I happen to trust this administration's judgment. But would I have wanted a McCain administration to hold such power? Or a Romney administration? Would I have wanted a David Addington giving a thumbs up, or down, as to the life of an American citizen overseas? Or a Scooter Libby? Or, God forbid, again, a Dick Cheney?
Of course not. No reasonable person would. But we cannot self-govern by caprice; we must govern by a consistency of law. That means we cannot forbid a Romney administration that which we'd freely permit an Obama administration; or, put another way, whatever a reasonable person would permit an Obama administration must also apply to, say, a Paul Ryan or Bobby Jindal or Chris Christie administration.
Would you be comfortable with that? I sure as hell wouldn't.