Chareles Krauthammer @ WaPo:
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 clearly understood.
1. By what right does the president order the killing by drone of enemies abroad? What criteria justify assassination?
Answer: (a) imminent threat, under the doctrine of self-defense, and (b) affiliation with al-Qaeda, 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-Qaeda is a different matter. We are in a mutual state of war. Osama bin Ladenissued his fatwa declaring war on the United States in 1996; we reciprocated three days after 9/11 with Congress’s Authorization for Use of Military Force — against al-Qaeda and those who harbor and abet it. (Such resolutions are the contemporary equivalent of a declaration of war, as evidenced in the 1991 Persian Gulf War and the 2003 Iraq War.)
Regarding al-Qaeda, therefore, imminence is not required. Its members are legitimate targets, day or night, awake or asleep. Nothing new here. In World War II, we bombed German and Japanese barracks without hesitation.
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-Qaeda is plotting all the time, an al-Qaeda honcho sleeping in his bed is therefore a legitimate target.
Nonsense. 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 wasself-declared al-Qaeda 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 United States, you become an enemy combatant, thereby forfeiting the privileges of citizenship and the protections of the Constitution, including due process. You retain only the protection of the laws of war — no more and no less than those of your foreign comrades-in-arms. (Indeed, David French, senior counsel at the American Center for Law and Justice, suggests stripping such traitors of their citizenship, thereby formalizing their extra-constitutional status.)