He tried. We talked at length about a number of issues, of which I’ll be relating in writing here. One of those issues was using drones against people who were never convicted of a crime. He read the memo and said it appeared to him they were attempting to apply a legal standard to a non legal issue. In a sense, they were putting potential lethal terrorists (or kids or innocents if you want to know the truth of it) in the same boat as a fleeing felon who is risking the lives of others.
Here are the principle arguments:
1. The State does hold the authority to kill without conviction of a crime if the information provided to a reasonable person indicates the person who is going to be killed is a direct threat to others. For example, if I, as police officer, see a man waving a gun around in a parking lot pointing it at people or a group he has cornered, I have every legal right to kill him, and will. I may be criticized for not hitting him with a Taser or a bean bag, but if I say that I believed such actions would only further threaten innocents, then it is a good shoot.
If a sniper on the police team kills a suspect in order to save others, without a trial or a conviction, it is a good shoot. So the killing of people without a trial is an accepted process. But only under limited and specific threats and with a great deal of post shooting review by people in authority who have no political reason to cover it up or answer to anyone in the organization belonging to the shooter. (that’s the big difference so far)
2. If we believe, as experts in the field, terrorist “X” is about to commit or has committed a crime that would constitute the use of lethal force, we are authorized, under our beliefs, to take action up and including the use of lethal force. The issue isn’t citizenship, it is are they really a threat. As my friend pointed out, many Americans of German descent returned to Nazi Germany to fight for their home country. They were killed by US forces as though they were Germans, because they chose to be the enemy. No Constitutional rights applied.
However, as my friend worked through the memo he began to see where the thought process began to go “mushy”, as he put it. There are multiple issues with the theory as it is applied to the real world.
1. Who makes the decision and based on what information?
2. How do we know the person in charge of making that decision is qualified to do so? The President thinks it? The Congress? Other “experts”?
3. When dealing with intelligence reporting you are often dealing with a conglomeration of diverse and often unrelated material that has to be assembled by someone in a coherent manner. Those people are fallible, the information can be- and often is- fallible.
4. The decision to drone strike is one of political expedience but that does not mean once the order is given other means of execution cannot be carried out. If you are deemed a lethal threat, the method of your demise should be an open ended set of options.
5. Then he got into the issue of justification. Once decided by the administration that a person needs to die “for the greater safety of others” the issue of becomes one of effort vs. risk to our guys. Or at least that is one justification. One justification that does not apply anymore is one of location. If the argument is safety of those trying to capture the suspect or the functional ability to reach the suspect ask yourself if location is the issue. If a compound of KKK members (or Nation of Islam converts) is heavily armed and fortified and a loss of life is absolutely unavoidable, why can’t the President send in the Rangers or bomb the compound? Remember the issue isn’t foreign soil as much as it is “can we kill an American citizen without violating his right to due process?”
If the case is safety vs risk vs effort vs failure, NOT the inherent Constitutional Rights afforded all American citizens, then the argument goes into the “is protecting the suspect’s rights WORTH the effort?” Isn’t that what happens with the gun waving American citizen in the parking lot?
Then we have to argue who reviews the action in order to make sure they were justified? The great balance in police work is we are very aware of the fact we are going to be scrutinized, often from multiple agencies. If we have a bad shoot or even a questionable one, we may very well face civil and criminal charges. Who is going to go to jail if they kill the wrong guy or kill a kid or kill an innocent? Nobody. That’s the problem. No accountability tends to give people a sense of invulnerability. It is a failing in our human nature.
As we argue that intelligent people who live in a political environment can make those kinds of decisions clearly and ethically, let me remind you of Benghazi where the same people you would trust with this decision made a number other decisions that got four good people killed AND also decided to cover it up for convenience sake.
That alone should make the above arguments a non- starter.