No, I am not going to attack the New York Times for factual errors in its editorial this morning concerning President Obama’s personal approval of drone targets. While there may be some, none jumped out at me at first glance–though I am a bit perplexed by the editorial’s tone of shocked disapproval that President Obama might insist on taking personal and final responsibility as Commander in Chief for lethal uses of force. But never mind that. I want to offer a helpful suggestion to the Times in reference to today’s final paragraph:
A unilateral campaign of death is untenable. To provide real assurance, President Obama should publish clear guidelines for targeting to be carried out by nonpoliticians, making assassination truly a last resort, and allow an outside court to review the evidence before placing Americans on a kill list. And it should release the legal briefs upon which the targeted killing was based.
This is not the first time the Times has blithely suggested that the Obama administration should just allow a court into the targeting process. I have pointed this out before, but it not affected the way the Times editorial writers choose to describe the matter–so let me pose the question again: What “outside court” exactly could the President “allow to review the evidence” before an American gets placed on a kill list? I think it’s fair to say that no court currently has what we might call “kill list jurisdiction.” And presidents, under our Constitution, don’t have the authority to confer jurisdiction on courts; that’s a matter for Congress. So under current law, the president simply can’t allow a judge to review the evidence–even if that’s a very good idea. What the Times must mean here is that it thinks Obama should submit a proposal to Congress to confer jurisdiction for such review on some court to hear this kind of case. That’s a respectable position, and I don’t mean to belittle it, but it implicates difficult policy questions, hugely difficult questions of legislative politcs–and, oh yeah, and it has some pretty significant constitutional hurdles. It doesn’t engender confidence that the Times has thought through the hard questions such a proposal raises that it treats it as a matter for a blithe toss-off at the end of an editorial–and in fashion that suggests the President can simply snap his fingers and allow judges in.
My recommendation to the Times: read Jennifer Daskal’s lengthy article on the subject of substantive and procedural standards for this sort of targeting, or just listen to the recent Lawfare Podcast she recorded. It may give you guys a better argumentative frame for your position.
And don’t thank me. I’m here to serve.