Okay, let's try it this way...

Last edited Thu Feb 7, 2013, 02:28 AM - Edit history (1)

The extra-judicial killings debate here seems to get bogged down on side issues like whether Obama is a good person, or arguing whether drone strikes in general are useful. So let's stipulate that Obama is an excellent President and a good person, and there are some people somewhere that the US military is justified in killing.

Okay, now... does anyone have a sensible argument against prior judicial review? This question has nothing to do with whether drone strikes are useful. I am willing to stipulate that the drone war is reasoned and successful. But is there a good reason to oppose judicial review of the executive decision to kill an American in non-exigent circumstances?

In exigent circumstances judicial review makes no sense. Of course there is not, nor could there be, prior judicial review of a policeman's decision to shoot somebody who is in the middle of a mass murder.

But that kind of drama has nothing to do with the question of whether the process of executing an American citizen should include some judicial branch involvement, where that involvement does not cost lives.

If a cop sees a guy grab a baby from a mother's arms and run into an apartment the cop will run into the apartment after him.

But if a cop has evidence that Johnny Rico has a bunch of heroin stashed in the same apartment he would get a search warrant. You go to a judge and say, "There's a bunch of heroin in this apartment." The judge says, "How do we know that?" The cop then provides a reason sufficient to make a reasonable uninvolved party (i.e., a judge) conclude it is likely (not certain) that it's true.

That is judicial oversight of the executive decision to bust into somebody's apartment. It keeps police (in that instance) from doing whatever crazy thing enters their heads.

Regarding launching a bomb at a US citizen, it seems reasonable to me, and pretty much demanded by the logic of our system, that if there is a list of "kill on sight" Americans, the judicial branch should have a role in making sure the Americans on the list are probably terrorists.

The judicial review objection is not about whether we can kill terrorists from the skies. We can. We do. It is about some independent confirmation that, at least in the case of an American citizen, the executive branch is targeting an actual terrorist and is acting within the law.

A judge does not work under the President, and is outside the chain of command. If Cheney and Bolton and Rumsfeld and Bush all agree on something that doesn't mean they are right. They are feeding off each other's pipe dreams. There is reason for someone whose oath is to impartiality to sign off on it—not sign off on it being a good idea, but merely that it is within the President's proper authority.

I side with the ACLU on this one. When the executive branch says that an execution for is above judicial review it is a problem. The Bush administration argued that no Court in the world had jurisdiction over Guantanamo and I am not down with that. There cannot be an aspect of American government that is, in extreme cases, entirely outside the jurisdiction of some court somewhere.