Paul’s battle isn’t with Brennan, who said that as CIA director he wouldn’t have any legal power to authorize domestic drone strikes. Brennan, who has been trying to sort out legal rules for drone warfare, deserved to be confirmed, as he was on Thursday. Nor is this battle simply with Attorney General Eric Holder, though he used troubling language in responding to Paul’s queries.
Really, this is an argument with America’s conscience over what actions should be permissible as the war against al-Qaeda moves into a new phase. The law can inform this debate about targeted killing, but as with the debate over torture, political leaders must decide that even if action might be technically legal, or effective, it’s morally wrong and therefore impermissible.
I was reminded of this relaxation of our moral code by a former CIA officer who has been involved in many operations where lethal force was used.
The CIA veteran recalled an admonition from a top official in the early 1980s, when the agency began taking lethal actions against Soviet proxy forces: “Never do anything in the field that you know in your heart will shock the conscience of the nation when it becomes public.”
During the early battles against terrorism in the 1980s, lethal operations were truly “capture or kill,” with a strong preference for capture. In one case, the CIA had planned to capture a notorious Palestinian bombmaker in a North African country. The operation was scratched at the last minute because of fears it would embarrass the country where it took place.
Under President George W. Bush, the limits on targeted killing were clear, initially. In 2002, the president had to give the CIA special new authority to target senior Iraqi commanders in the run-up to war. After the Iraqi surrender, many of the notorious “deck of cards” leaders were captured, not killed – including Saddam Hussein himself.
Drones changed the balance.
Holder was so determined to keep presidential options open that he gave a vague answer to Paul’s question about targeting U.S. citizens on American soil.
Sen. Dianne Feinstein has suggested that the U.S. needs a “drone court” to approve targeted killing. But Garrett Epps, a law professor at the University of Baltimore, countered persuasively in The Atlantic online that using courts for such executive action would be unconstitutional.
These questions are urgent, as al-Qaeda morphs into smaller spinoffs and the existing legal justification for attacks becomes more tenuous. The Washington Post reported last week that to attack al-Qaeda offshoots in such places as Syria, Libya and Mali, the U.S. might expand targeting to what a source called “associates of associates.”
Drones should be a weapon of last resort. A positive sign was the report Thursday that Osama bin Laden’s son-in-law, Sulaiman Abu Ghaith, has been captured, not killed.
DAVID IGNATIUS’ email address is firstname.lastname@example.org.