A combination of uncertainty and ignorance has kept me from writing very much about either the wisdom or legality of drone strikes in general. The same is true of drone strikes against American citizens overseas. There is, obviously, a difference between killing citizens and killing foreign nationals, but I can't quite decide how important the difference is or where it should apply. On hot battlefields, there's no difference: you shoot at bad guys, and if one of them turns out to be an American turncoat, that's not a problem. But in our current war against Al Qaeda, where's the battlefield? Anywhere? Everywhere? Is it reasonable to restrict it solely to regions where American troops are actively fighting? If not, just how expansive should the definition be?
I apologize for being a squish about this, but I'm just not sure. This is one of the reasons so many of us would like to see the OLC memo spelling out the president's legal authority for targeting American citizens. Is it based on the 2001 AUMF and therefore constrained to Al Qaeda operatives, or is it based on the president's Article II authority and therefore usable against anyone? Is it geographically constrained? Is it constrained in any way?
In particular, is it, at the very least, constrained to prohibit the targeting of American citizens on US soil? Even a squish like me knows that it better be. But as Glenn Greenwald points out today, the Obama administration flatly refuses to acknowledge this:
[CIA nominee John] Brennan has been asked the question several times as part of his confirmation process. Each time, he simply pretends that the question has not been asked, opting instead to address a completely different issue. Here's the latest example from the written exchange he had with Senators after his testimony before the Senate Intelligence Committee; after referencing the DOJ "white paper", the Committee raised the question with Brennan in the most straightforward way possible:
Obviously, that the US has not and does not intend to engage in such acts is entirely non-responsive to the question that was asked: whether they believe they have the authority to do so. To the extent any answer was provided, it came in Brennan's next answer. He was asked:
Could you describe the geographical limits on the Administration's conduct drone strikes?"
Brennan's answer was that, in essence, there are no geographic limits to this power: "we do not view our authority to use military force against al-Qa'ida and associated forces as being limited to 'hot' battlefields like Afghanistan." He then quoted Attorney General Eric Holder as saying: "neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan" (see Brennan's full answer here).
I'm not happy over the wingnut attacks on pretty much all of Obama's nominees for Cabinet-level posts, and I'm loath to add fuel to the fire. But in this case, both liberals and conservatives deserve a straight answer. As CIA director, will Brennan be working under legal guidelines that allow him to target American citizens on US soil? Or, since the CIA is prohibited from operating domestically, a better question might be: will he be working under legal guidelines that allow him to work hand-in-glove with the Pentagon to target American citizens on US soil?
It's not enough to say there are no plans to do so. I should damn well hope not. But we deserve to know whether the president thinks he has the authority to do this if he ever changes his plans.
For more on this, see Adam Serwer's piece today noting that even some former Obama officials are now calling for limits to the president's unilateral authority over targeted killings.