The individual focus of President Obama's assassination drone strikes suggests that the United States has an alternative criminal justice procedure for al-Qaida terrorists. Unlike one-on-one assassination, drone strikes eliminate more than the target. They inflict collateral damage killing innocent civilians and traumatizing drone operators. Should we accept this alternative criminal justice procedure that in one instant captures, tries, convicts, and executes a suspected terrorist?
Recently The New York Times news analyst Peter Barker wrote that it was President Obama's turn to be criticized for his counter-terrorism excesses and for striking the wrong balance between civil liberties and national security. "Particularly stark has been the secret memo authorizing targeted killing of American citizens deemed terrorists under certain circumstances without judicial review…"
Press Secretary Jay Carney has stated that drone strikes against terrorists are appropriate because the President is conducting the war against al-Qaida authorized by Congress in 1991. "We conduct those strikes because they are necessary to mitigate ongoing actual threats, to stop plots, to prevent future attacks and again save American lives. The strikes are legal, they are ethical, and they are wise."
The war justification for drone strike assassination is scary and profound. Our established criminal justice system is rule-governed and designed to deal with individual offenders. It is guided by definitions of unlawful conduct, rules of evidence, and due process. The alternative criminal justice system has no rules, save the logic of war in which combatants apply lethal force to each other in the context of battle. This alternative criminal justice procedure suspends the rule of law and allows the country to act like a combatant in a war against an individual who may be an American citizen.
In the last hundred years warfare has evolved from industrial state world wars, to regional wars of containment, expulsion, and counter-insurgency. This evolution demonstrates that contingencies of war, not rules, determine the strategic, tactical, and logistic choices with which combatants inflict lethal and destructive cruelty to each other. None of the wars in this evolution have been conflicts between individuals or between the state and an individual. Such conflicts are the domain of criminal and civil justice systems.
The Administration claims that its assassination drone strikes are justified when terrorist target is suspected of being an actual threat. Under American law, threats are addressed by forward-looking, preventive, risk management laws and objective evidence-based predictions about the risk of future harmful behavior. Past illegal conduct is addressed by backward-looking litigation procedures that produce verdicts based on reliable historical evidence that satisfies a burden of proof. The untested suspicions that that trigger assassination drone strikes are a mix of these two types of regulatory choices without any of our established legal and ethical safeguards. For this reason assassination drone strikes are not legal, not ethical, and not wise. They are choices governed only by the brutal logic of war.