Obama's drone war is well-founded in law and history

2013-02-15T00:00:00Z Obama's drone war is well-founded in law and historyCharles Krauthammer Washington Post Writers Group Arizona Daily Star

WASHINGTON -

The nation's vexation over the morality and legality of President Obama's drone war has produced a salutary but hopelessly confused debate. Three categories of questions are being asked. They must be separated to be understood clearly.

1. By what right does the president order the killing by drone of enemies abroad? What criteria justify assassination?

Answer: Imminent threat, under the doctrine of self-defense, and affiliation with al-Qaida, under the laws of war.

Imminent threat is obvious. If we know a freelance jihadist cell in Yemen is actively plotting an attack, we don't have to wait until after the fact. Elementary self-defense justifies attacking first.

Al-Qaida is a different matter. We are in a mutual state of war. Osama bin Laden issued his fatwa declaring war on the United States in 1996; we reciprocated three days after 9/11 with Congress' Authorization for Use of Military Force - against al-Qaida and those who harbor and abet it.

Regarding al-Qaida, therefore, imminence is not required. Its members are legitimate targets.

Unfortunately, Obama's Justice Department memos justifying the drone attacks are hopelessly muddled. They imply that the sole justification for drone attack is imminent threat - and whereas al-Qaida is plotting all the time, an al-Qaida honcho sleeping in his bed is therefore a legitimate target.

Slippery nonsense. It gives the impression of an administration making up criteria to fit the president's kill list. No need to confuse categories. A sleeping Anwar al-Awlaki could lawfully be snuffed not because of imminence but because he was self-declared al-Qaida and thus an enemy combatant as defined by congressional resolution and the laws of war.

2. But Awlaki was no ordinary enemy. He was a U.S. citizen. By what right does the president order the killing by drone of an American? Where's the due process?

Answer: Once you take up arms against the U.S., you become an enemy combatant, thereby forfeiting the privileges of citizenship and the protections of the Constitution, including due process.

Lincoln refused to recognize the Confederacy as a separate nation. The soldiers his Union army confronted at Antietam were American citizens in rebellion - killed without due process. Nor did the Americans storming German bunkers at Normandy inquire if there were any German-Americans among them - to be excused for gentler treatment.

3. Who has the authority to decide life and death targeting?

In war, the ultimate authority is always the commander in chief and those in the chain of command. This looks troubling. Obama sitting alone in the Oval Office deciding what individuals to kill. But how is that different from Lyndon Johnson choosing bombing targets in North Vietnam?

Moreover, we firebombed entire cities in World War II. Who chose? Commanders under the authority of the president. No judicial review, no secret court, no authority above the president.

OK, you say. But today's war is entirely different: no front line, no end in sight. So what? The jihadists decided to make the world a battlefield and to wage war in perpetuity. Until they abandon the field, what choice do we have but to carry the fight to them?

We have our principles and precedents for lawful warmaking, and a growing body of case law for the more vexing complexities of the present war - for example, the treatment of suspected terrorists apprehended on U.S. soil. The courts having granted them varying degrees of habeas corpus protection, it is obvious that termination by drone is forbidden - unless Congress and the courts decide otherwise, which, short of a Taliban invasion, is inconceivable.

Now, for those who believe that the war on terror is not war but law enforcement, (a) I concede that they will find the foregoing analysis to be useless and (b) I assert that they are living on a different and distant planet.

For us earthlings, on the other hand, the case for Obama's drone war is clear. Pity that his Justice Department couldn't make it.

Email Charles Krauthammer at letters@charleskrauthammer.com

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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