Everybody please stop focusing on “drones”

Whatever you think of Senator Rand Paul’s filibuster of John Brennan, President Obama’s nominee to head the C.I.A., one thing it doesn’t seem to have accomplished is to get people to focus on the president’s authority to kill people he designates as threats. This, rather than the use of “drones” per se, is the real issue–the one that needs serious debate and critical examination. Drones are just one means by which the president can order people on the “kill-list” to be dispatched. From a rule-of-law or civil-liberties perspective, it’s irrelevant if he uses a drone–rather than a missile, or a ninja, or whatever–to do this.

Confusion on this point allows defenders of so-called targeted killing to pose as humanitarians. They point out, not without justification, that unmanned drones can be more precise and kill fewer bystanders than other forms of aerial warfare. But this point–while not unimportant–obscures the issue that clear-headed critics of the program have been harping on. That issue is ordering the killing of people–whether U.S. citizens or not–without anything resembling due process as traditionally understood, and with a great deal of secrecy and with little by way of transparency or accountability. This power, rather than the use of a particular technology, is what should really worry us and is what we need to be debating.

8 thoughts on “Everybody please stop focusing on “drones”

  1. Well, nobody seemed to object when it was okay to send an assassination squad into another sovereign nation, because that was Bin Laden (eeeevil) and “only” Pakistan. Once you go down the philosophical road of “no due process needed”, this is where you end up. I think it started when Bush established that “we” can go after anyone we perceive as a “potential threat”, which went straight to torture being okay (they deserve it) and the establishment of Gitmo, where due process disappears into a black hole.

  2. The power defines the “executive.” It is the same power subsidiarized in the gun worn by a police officer or, on some routes, mail carriers. In our system, the people are sovereign, are the ones collectively able to give that order or make that demand. The authority is lent to the executive at whatever level, but the fact that it is lent doesn’t mean that the people have some other means to control its use moment by moment. The executive, from the Chief Executive on down, is both authorized and obligated to act, then look to the “court of history” for final judgment. Opponents of our current president along with opponents of particular American policies want to attach alternative questions and perhaps some amount of wishful thinking or aspirational pacifism to the fundamental problematic addressed by Senator Paul’s hypothetical, but to do so is at least a category error, and often somewhat childish. For the executive to give Paul the answer he previously declared to be the sole acceptable one would be either to lie or to abdicate.

    Politics is determined at the limits by the possibility of killing – of the possibility of the order to kill or of the demand for sacrifice. It can’t be wished away.It is the fundamental sovereign power, the ultimate expression of the decision over the “exceptional circumstance” that Paul and the extremists among his allies seem to want to locate elsewhere than in the federal government as currently constituted, though they often remain incapable of articulating their positions: Paul himself does not seem to know how radical he intends his opposition to be. He does not seem to have thought his position through to its logical consequences. It seems to be a relic of a more radical libertarianism that, carried forward consequentially, would be the dissolution of the state. He says he’s not a revolutionary of that type, but what he goes on to say says that he is: He just doesn’t know it, or he’s forgotten, or he’s not as bright or as honest with us or with himself as some want to think he is.

    Some support him because they feel he advances a necessary or worthwhile discussion. For that discussion to be very worthwhile, it would have to frame the issues rationally and move to specific policy recommendations. Paul fails on both counts.

  3. Not sure if you intend this, but your first paragraph could be interpreted as saying that it’s wrong (or there’s no point?) to trying to restrain executive war-making through rules, oversight, etc. Because, in my view, that’s precisely what we lack in this area. I don’t think we face such a stark choice between executive power that is unaccountable (except to the “court of history”) and “abdication.”

    (Should note that I don’t endorse the Rand Paul line on this issue–to the extent that he has a coherent line.)

    1. There is no absolute legal restraint as long as we have a system in which the president has commander-in-chief powers and is expected to react to threats according to his or her own peremptory judgment. (This also goes for other exercises of “sovereign power,” incidentally.) There are only political and practical restraints or impediments, beginning with the willingness of others to follow whatever orders, lawful or not. So, it’s not really possible for a president to order up an industrial era world war all on his own, but it’s impossible to prevent a chief executive from exploiting essential freedom of movement, including doing things that under some definitions amount to “warmaking” and under others do not quite all on their own rise to the level of “war,” or from initiating war and presenting it as a fait accompli to a congress and the courts.

  4. Lee

    So is your view that there’s no point in trying to erect legal constraints on the scope of the president’s discretion in using lethal force? Not trying to score rhetorical points, just trying to understand.

    1. Understand that we’re speaking at a very high level of abstraction here – so looseness in language can be dangerous to the sense of the argument. So, there might be a point in proceeding as though legal constraints were being put on presidential discretion, but in another, I think stricter sense they do not truly constrain the scope of such discretion. For the last 50-60 years or so, as an example, presidents have been in a position to order the destruction of the world without asking for a referendum or going to a court for an OK. Or we could say that final responsibility for the defense of the constitutional order necessarily implies the ability to dissolve the constitutional order – if not by ordering up a nuclear war or declaring a state of emergency, and so on, then by simple failure to act against a threat to it or to fulfill the responsibility of his office. The scope of presidential power is in this sense at least commensurate to the scope of the legal order. It is not an absolute power, but the final constraint lies outside of the legal order, in the real concrete limits of any particular president’s ability to work presidential will, when the insane or evil or incompetent or war criminal or anti-constitutional president meets a likewise extra-constitutional and extra-legal resistance or defiance. Though the struggle takes place at or beyond the limits of the legal order does not mean that its outcome could not be legalized after the fact.

      …THE LAST RESORT, in other words – whose scenario was right “on the nose” on this this question. (Interesting to contemplate why the show didn’t work – I think its failure has a lot to do with putting “President Bolton” offscreen.) The larger notion is pervasive in popular culture: The cop or secret agent or doctor or victim who has to break or go outside the law in order to prove his innocence or expose corruption or stop a killer and so on. We have a schizoid culture in which we worship or asked to worship and conduct ourselves according to “the rule of law not men,” and in which we also worship the concept of the man who righteously defies the law on behalf of a higher law, ideally to bring the two orders of law into harmony with each other (so often the story ends with the lawbreaker or representative testifying in open hearings or court, or being offered a high position in government or law enforcement). This framework is also the framework under which we as a nation go to war or indefinitely “militarize” a conflict – legally creating a space beyond normal legality.

      So, back to the policy question, we can put up legal impediments and establish administrative protocols, and so on, and we can even choose to tell ourselves comforting stories about what they will achieve. These might be far preferable for us than other available alternatives – such as the fascist alternative of embracing the Leader as the true and infallible embodiment of the popular sovereign, or pacifist, pure libertarian, or “post-sovereign” alternatives that make national self-defense impossible. The Obama Administration favors the more moderate, and for us traditional approach, involving a certain suspension of disbelief and acceptance of gray areas. It is not going to embrace an argument, self-contradictorily advanced by Paul and those “standing” with him, that would implicitly indict this president and his predecessors, or that presumes to constrain inalienable executive discretion in a way that re-defines the presidency and carries within it the principle of the dissolution of the American state. See also my post here: http://zombiecontentions.com/2013/02/10/what-neither-a-drone-court-nor-any-other-legal-structure-will-change-about-our-system/

  5. So tell me if this is a fair summary of what you’re saying: The executive, in virtue of his responsibility for defending the nation, (necessarily?) straddles the boundary between law and lawlessness. And we will always face a receding horizon, so to speak, in any efforts to “rationalize” the executive’s deployment of force.

    If that is an accurate summary, then I have two thoughts. First, what role might international law/norms play here? And second, isn’t one plausible definition of liberalism the attempt to bring the seemingly irrational forces of power under the rule of law? Is a permanent “law-free” zone something a liberal polity can accept?

  6. I think that summary is workable.

    International law: We live in the age of an incomplete and uncertain project to elaborate an international legal regime. Among its chief features and purposes, originally as an American-led project, is the criminalization of “wars of aggression,” which necessarily implies the criminalization of war itself. The goal has been advanced with the typical, seemingly natural exception of self-defense, re-producing parallel contradictions of the sort that appear in the construction of the liberal democratic state, but without an identified voice of what would have to be a global sovereign guaranteeing the integrity of the whole. As is also somewhat typical for these matters, the proponents of the project tend to speak as though their aspiration is already a reality, and tend to treat a failure to speak like them as betrayal – suggestive of the theological and ideal rather than rational and real character of the project of total legalization. The incompleteness of the project is fairly obvious whenever the dictates of the UN Security Council or General Assembly or International Court of Justice come into conflict with vital national or other particular interests. As we ourselves have demonstrated and may be about to demonstrate again vs. Iran, each national “self” explicitly retains the ability to define “self-defense” for itself. In addition, identification of the legitimate voice of each particular nation-state is subject to disagreement, and the international bodies that are supposed to validate exceptional circumstances are subject to manipulation and their decisions are subject to interpretation. The necessary incompleteness of the international law regime can be turned at literally any moment into its overthrow, and the return to or transparent revelation of an always underlying “international state of nature.”

    As for whether a liberal polity can accept such contradictions, the answer in an absolute sense would be nope, though in a relative sense the answer is obviously yes. From the absolute perspective, there is not, never has been, and can never be this side of apocalypse a true and pure liberal polity. There are only sets of liberal ideals and aspirations within heterogeneous (or in the classical parlance “mixed”) regimes whose principles of unity or integrity are derived from other sources, concretely. If we call mass liberal democracy “liberal” or “democratic,” two terms often used interchangeably but properly designating two crucially but only partly overlapping philosophies or orientations, we’re speaking in shorthand or making relative judgments: Denmark seems rather more “liberal” than Zimbabwe, say, but that doesn’t make Denmark perfectly liberal, and we don’t really know how liberal Denmark could afford to be if not for the liberal, but relatively less liberal, US of A, and the relatively even less liberal, but more liberal than it used to be, global political economic order such as it is. So, a relatively liberal or mass liberal democratic polity clearly can survive, and these polities have survived, all sorts of contradictions as long as will and luck, or materially favorable circumstances, hold out.

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