Do you really want to hand 'kill orders' to Bobby Jindal?

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.

Comments

[Peter G]

And so you come to the very heart of the matter. It isn't about who gets to be the target of a drone or a Seal team for that matter. It is about how that decision gets to be made. Pragmatically these decisions need to be made swiftly and often with incomplete or contradictory intelligence. That's a lot to lay on the shoulders of any one man or woman. The problem I see is that regardless of the probity of whoever sits in the oval office ultimately some individual or panel is going to be considering a case put before them by the military and intelligence community and we all know how easy it is to steer that boat into a desired harbor. There's no way around the fact that any such system can be corrupted if the man at the top wants it to be. Better pick good presidents.

[AnneJ]

Exactly. No president should have such powers no matter if it's one you like or not. Bush shouldn't have had them, Obama shouldn't have them, and I certainly wouldn't trust a president McCain or president Romney with them. Maybe given the political climate we are in today with republicans in charge of the house, now would be a good time to reexamine such a dangerous policy.

[Robert Lipscomb]

I suspect that even the GOP has, until now, been comfortable with Obama making these decisions - and with just cause. I have not.

Obama seems to be positioning himself to fundamentally restructure the DOD. I hope that in addition to evaluating the use of drones on American citizens, we all revisit the whole concept of a "war on terrorism".

[Turgidson]

As far as our politicians go, I have a lot of trust in Obama to, generally, make sound, informed decisions. To the extent I could ever trust anyone (much less politicians with the self-interest inherent in the gig) with this kind of authority, he's about as good as it will get for me. And that provides some slim modicum of comfort for me with respect to the drone campaign. But imagining a President McCain with that authority, just for a few seconds. Hoo boy.

We won't always pick the right president. Heck, we pick the wrong president with regularity. That was part of the idea behind the coequal branches. But Congress doesn't want this responsibility, and the courts can only do so much given that they have to wait for a releant case to be filed, and even then are reticent to step on the executive's bailiwick. Plus, today's SCOTUS...uhh....

The executive branch simply isn't going to relinquish this authority, and the belief that it can basically say what the law is to justify a predetermined result or policy. Congress needs to do something. Here, at long last, is an issue where the House GOP can actually do some good by reflexively opposing Obama. But they won't. They'll repeal Obamacare a few more times and demand that Democrats offer the Medicare cuts they want but won't name, and keep screeching about Benghazi. But they aren't going to talk about drones, at least not in enough numbers to make anything happen.

[Alli]

If the next GOP prez is a war hawk, it won't matter what Obama did. GOP does whatever it wants and call you anti-American if you disagree. Media will let them get away with it because its the GOP and the liberals will be hushed and poo pooed.

I don't know. We can't act like terrorists aren't out there and we can't have future presidents abusing power.

[Chris Andersen]

I don't want Jindal or any other Republican to be in charge of our foreign policy, but that doesn't mean I don't want our foreign policy to be flexible enough to deal with circumstances out of the norm.

You can try to fashion a framework of law that defends our liberties, but in the end it always comes down to who you hire to be the cop. Even a corrupt cop can corrupt a solid legal system.