Drone Wars: Obama's Critics Missed the Boat

With cameras rolling and hand slicing the air, John McCain took to the Senate floor to blast the Obama administration for leaking the president's personal use of "kill lists" to select targets in the U.S. drone war against al Qaeda, decrying the President's brazen exploitation of "classified" information to burnish his tough-guy political credentials in an election year.

Senate and House intelligence committee members, for their part, called for a bipartisan investigation of the Obama disclosures on national security grounds, claiming they're "putting American lives at risk."

Left-leaning pundits excoriated Obama's hands-on hawkery as commander-in-chief (reported here, here, and here) as the egregious presidential abuse of war powers plucked from the rightful hands of Congress. Oped venues of the liberal media resounded with syncopated calls for investigation of the secret Tuesday targeting meetings where the President personally has ordered the foreign assassination of American citizens. 

Screeds from the blogosphere likened the sycophantic reporting of the Obama White House operation to the travesties Judith Miller enabled George W. Bush & Co. to perform on Iraqi weapons of mass destruction.

All these charges have an element of truth to them. But only an element. Obama critics left and right know all too well the President is likely, as a Democrat, to come out of this controversy politically untouched and even strengthened. But that is not why the chattering classes across the political spectrum ought to be exercised about how Obama and a handful of aides are so aggressively micromanaging the nation's counterterrorism brief. 

Polls will almost certainly continue to show that most Americans approve of Obama's handling of terrorism and the drone war against terrorists. What surveys will not show -- and what most of the President's critics have entirely missed -- is the tectonic shift that seems to have taken place in what former Bush counsel and Harvard Law professor Jack Goldsmith calls "wartime presidential accountability". 

It is precisely these changing standards, together with the changing nature of international warfare, Goldsmith believes, that President Obama and his administration are struggling with, and his critics are groping to understand.

Forget about media conspiracies and witch-hunts. There is no question that Obama's aides have supplied members of the press with inside accounts that make their man look good. You don't have to read carefully to know who in the White House, the Pentagon, or the intelligence agencies is talking to reporters -- whose work, by the way, is as clean as a whistle.

Nor is there evidence that the White House has deployed secrecy, deceit, or duplicity to get the word out about Obama's engagement in counterterrorist operations. The Obama White House has, in fact, arguably performed a public service by opening up some usually darkened corners of the military/intelligence world for public scrutiny. 

The "kill list" controversy is not about abuse of power or a runaway presidency. It is about an administration trying to cope with changing concepts of warfare and struggling to settle on the legal and moral principles to fight it. 

Goldsmith, an unapologetic conservative, believes a new and unconventional set of checks and balances has grown up over time, vetted and legitimized largely by the judicial branch of government, that now regulate the President's management of hostilities against stateless terrorist enemies. A similar surge of lawyering-up now monitors and protects every Army brigade on the battleground. 

Lawyers and the courts, Goldsmith argues, have gradually come to replace Congressional oversight in providing functional checks and balances on the president. Some lawyers and legal scholars are leery of what they see as a dangerous evolution of power toward the executive and judicial branches of government that Obama has inherited from the Bush administration.

As a former constitutional law professor, Obama is more aware than most of how changing tactical and strategic circumstances on the ground affect constitutional definitions of warfare, and is not hesitant about parsing new legal precedents and testing new standards for guidance. Obama, Goldsmith argues, has adopted many of Bush’s special wartime powers, from keeping Guantanamo open to backing away from civilian trials for terrorist combatants, because he understands their utility and legitimacy. 

At issue, as Yale law professor John Fabian Witt writes, is that "the foundation of laws of armed conflict that have been evolving for three centuries" are in a state of collapse. Our fight against well-organized and well-financed stateless terrorists has eroded the once-sharp distinctions between war and peace, soldiering and criminality, wartime innocence and guilt. 

Obama is in an entirely new zone of on-the-job training and uncertainty. So far he has played his hand better than might have been expected. But one senses that Goldsmith's new edifice of evolutionary constitutional principle to guide warfare is far from a finished construct. 

Is it, for example, an act of war to attack a sovereign nation with pilotless drones if that nation is Pakistan and the targets are insurgent sanctuaries? And if that nation is the U.S. and the targets are military bases or government buildings?

It will only get harder from here.