“It’s hard to believe,” the ACLU’s Hina Shamsi lamented, that the white paper “was produced in a democracy built on a system of checks and balances.” But what Shamsi and her colleagues really don’t want to believe is that the policy spelled out in the white paper is indeed a product of just that system.
Congress authorized the war against al Qaeda and its allies. While many details of the drone strikes remain secret, it can hardly be argued that Congress isn’t aware of the program’s existence or the administration’s -general legal justification for it; Attorney General Eric Holder spelled out much the same case for the program last March in a speech at Northwestern University. Nor is it possible for the administration to carry out the- -program without congressional authorizations, either by the intelligence or the armed services committees. And as the -confirmation hearings of CIA director nominee John Brennan demonstrate, Congress has always had the ability to dig deeper if it chooses to use its oversight powers. What the critics don’t want to admit is that poll after poll indicates that the American public supports the drone program, and members of Congress, within reason, will reflect that support.
Nor is it the case that the courts have been ignored. It is impossible to read the white paper, with its citations of court decisions and its criteria for “balancing” state and individual interests based on court decisions, and not conclude that the paper was produced in the shadow of the federal court’s newfound, post-9/11 willingness to review executive branch counterterrorism policies. Shamsi also conveniently ignores the fact that when the ACLU sued the U.S. government over placing Anwar al-Awlaki (the American citizen and radical imam who planned the failed “underwear bomber” attack over Detroit in 2009 and was subsequently killed by a drone strike) on a “kill list,” the federal court dismissed the suit. According to the court, these were policies and decisions the Constitution had left in the hands of the political branches, those “best positioned and most politically accountable for making them.” In short, those opposed to the drone program got their day in court; they just don’t like what the court decided.