The Catch-22 of Drone Assassinations

| Mon Jan. 23, 2012 2:41 PM EST

Glenn Greenwald points out something today that I'm embarrassed to say hadn't occurred to me:

On Saturday in Somalia, the U.S. fired missiles from a drone and killed the 27-year-old Lebanon-born, ex-British citizen Bilal el-Berjawi. His wife had given birth 24 hours earlier and the speculation is that the U.S. located him when his wife called to give him the news…El-Berjawi’s family vehemently denies that he is involved with Terrorism, but he was never able to appeal the decree against him for this reason:

Berjawi is understood to have sought to appeal against the order, but lawyers representing his family were unable to take instructions from him amid concerns that any telephone contact could precipitate a drone attack.

Obviously, those concerns were valid. So first the U.S. tries to assassinate people, then it causes legal rulings against them to be issued because the individuals, fearing for their life, are unable to defend themselves. Meanwhile, no explanation or evidence is provided for either the adverse government act or the assassination: it is simply secretly decreed and thus shall it be.

I'm already opposed to assassinations of U.S. citizens, and not especially excited about assassinations of non-U.S. nationals either (el-Berjawi was a dual Lebanese British national whose British citizenship was stripped in 2006). So this doesn't really change my mind about anything in a serious way. But it does make the whole thing a lot more Kafka-esque than I had imagined.

Still, in the case of non-U.S. nationals, I think the question of targeted assassinations is more difficult than some critics make it out to be. As always, it gets back to the fundamental question of (a) whether we're at war and (b) what the battlefield is. In a shooting war, obviously you're allowed to go after enemy combatants without a court order, and that's the essential rationale for these killings. But where does the line get drawn? Does this war ever end? Is its scope the entire world? Neither the Bush nor the Obama administrations have ever been willing to say, claiming simply that the AUMF, along with the president's inherent commander-in-chief powers, gave them all the authority they needed to make decisions solely within the executive branch.

And yet…it's not clear what other option there is. Genuine judicial hearings, even if you think that's the right way to go about this, are obviously nonstarters in practical terms. You could have something like the FISA court, authorizing targeted assassinations in secret hearings, which would be an improvement in technical terms but probably not in real life. It's not as if FISA turns down government requests very often, after all. Or we could simply stop killing suspected terrorists overseas unless they're in a declared war zone.

I'm a squish. I don't know the answer. One way or another though, I can't help but think that this is all going to turn out badly eventually.