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What makes Obama think his drone strike “rule book” will apply to future presidents?

Civil libertarians, much to our collective pain and anguish, have thus far failed to convince majorities of the US population that our legal rights should be protected in a perceived crisis. Emergency rule is The Rule and frankly, most Americans either don’t seem to care or aren’t paying enough attention.  

Our most cherished values — due process, respect for the rule of law (not of men) and adherence to constitutional norms — have withered in the face of the national security state and its executive power excesses. These problems were not campaign issues in 2012 because both major parties essentially agree that there can be virtually no restriction on presidential powers when it comes to the Glorious And Infinite War On Terror — not least any pesky outside (read: judicial) oversight pertaining to extrajudicial assassinations of persons outside of declared war zones, even if those persons happen to be 16 year old US citizens from Denver.

We’ve now witnessed both Republican and Democratic presidents carry the Emergency Rule torch in the post 9/11 era, with predictable effects on the political discourse. When Bush was authorizing torture, signing away our Fourth Amendment rights and overseeing indefinite detention without trial schemes, Democratic party supporters were outraged. "Bushit!" their bumper stickers screamed. Republicans, apart from a very marginal and hard core libertarian fringe, supported Bush’s executive power grabs as justifiable — nay, necessary — war time powers. 

The past four years under Obama have shown us a near complete reversal of that script. Now it is Democrats who make excuses for the lawless overreaches of their executive. And while Republican elected officials largely (almost entirely?) endorse Barack Obama’s vision for limitless, authoritarian power centered in the executive, there have been pockets of resistance among ordinary GOP voters and even some right-wing commentators. 

Apparently President Obama, no matter how many times he says the word "bipartisanship" and no matter how many Bush administration policies he has maintained or extended, isn’t immune from this kind of partisan thinking. According to the NYT’s Scott Shane, he last summer ordered his secret war committees to come up with a set of rules to govern his “Kill List” or “disposition matrix” in the event that Mitt Romney became president. He didn’t trust that a President Romney could appropriately manage the power to kill without outside oversight or due process.

Imagine that.

Civil libertarians (like me!) have been making this somewhat dirty but nonetheless marginally effective argument for years, in a desperate bid to get the partisans in power to pay attention to and oppose routine violations of the rule of law when their guy is holding the levers: What if the other guy had these powers?

Unfortunately, President Obama isn’t learning the right lesson from the “Romney with a Kill List?!” light bulb that sparked in his weary mind, the election and a possible change in regime on the horizon. 

No, instead of eradicating the Kill List program and coming clean about his executive power overreaches, he seems intent on crafting a set of “rules” to govern his burgeoning killer drone campaign — rules that he naively thinks any successor would have to obey. Obama wants to “institutionalize” targeted killing, not rescind his powers to execute it. 

Is this simply a bit of conscience cleaning? After all, what makes President Obama think that the person who holds the office after him would have any duty whatsoever to adhere to “rules” written by a prior president? If, as the past ten years have demonstrated, the President (and congress) may so easily and routinely violate the Constitution, what makes Obama think that a “rule book” drafted by his Kill List Experts (or even authorized by congress) would hold any water whatsoever with the next administration? 

Odd, isn’t it? You can’t very well break the rules when you feel like it and then arbitrarily say to the next regime, "Here is my rule book. Adhere to it."

Some of you may be thinking: "Look, this is better than no rule book at all."

It would unquestionably be preferable to have an open debate about US targeted killing policy among our elected officials and for the general public to hear. We ostensibly live in a democratic society, after all. Killing people in foreign lands outside of declared war zones is a pretty big deal. 

But there’s little chance that these deliberations will be public, or that the government will give up the final details without a prolonged, bitter, expensive legal fight — if it discloses them at all. The final words in Scott Shane’s piece on the "institutionalization" of the drone program speak to just this endemic and utterly destructive secrecy:

"The draft rule book for drone strikes that has been passed among agencies over the last several months is so highly classified, officials said, that it is hand-carried from office to office rather than sent by e-mail."

I eagerly await the ACLU lawsuit that will seek access to the rule book. Will the government first claim that the organization lacks standing to bring the suit, or will it go straight to the holy grail of antidemocratic obfuscation, the State Secrets privilege? 

The "rule book" to govern targeted killings may never be developed or implemented at all. But if it is, we should remember that implementing rules to oversee illegal programs does not make them legal. And President Obama should remember that what he does with the stroke of a pen another president can undo just as easily. 

After all, it was Ronald Reagan (a republican) who in 1981 signed an executive order barring the US government from taking part in assassinations. And it was President Clinton (a democrat) who relaxed that prohibition with respect to “terror” suspects in 1998.

If Obama wants to ensure that targeted killing programs aren’t abused by future administrations, he should set the tone for the nation by realigning our actions in the world with what should be our core values: the Constitution, respect for international law and advocacy of basic justice everywhere — for everyone.

Precedent matters. And “Do as I say, not as I do” justice simply doesn’t fly.

© 2021 ACLU of Massachusetts.