This isn’t the first time this sentiment has been expressed, but it’s certainly a new venue for it. Daily Beast/Newsweek editor-in-chief Tina Brown follows up on Bill Maher’s observation that the Democratic reaction to Barack Obama’s drone use is somewhat hypocritical by claiming that Democrats would have impeached George W. Bush by now over it (via RCP):
BILL MAHER, HOST OF “REAL TIME” ON HBO: The Obama administration has been heavily targeting whistleblowers — true — and information activists. What can we do to hold the government accountable for this harsh crackdown?
TINA BROWN, NEWSWEEK: I mean, he’d be impeached by now for drones, if he was George W. Bush.
MAHER: Impeached? No.
BROWN: Yeah, don’t you think?
MAHER: Impeached, by who? Who would —
BROWN: I think if this was a Republican president, the outcry about drones would be far greater.
That outcry would have started with the national media, and not just about the drone attacks themselves. Bloomberg’s Noah Feldman writes today about a deeper problem with Obama’s drone usage and rationalization for it — the redefining of due process downward to mean essentially nothing:
Are U.S. enemies entitled to due process? Well, no — not if they are arrayed against the country on the battlefield. In war, you don’t try the enemy. You kill him, preferably before he kills you. And if some of the Japanese troops at Guadalcanal had held U.S. citizenship, it wouldn’t have suddenly given them due process rights. If Awlaki was an enemy fighting on the battlefield, he wouldn’t have deserved due process while the fight was on. Off it, he should legally be like any other U.S. citizen, innocent until proven guilty.Yet, despite claiming that the Awlaki killing was justified because he was an operational leader of al-Qaeda, and thus in some sense an enemy on the battlefield, the white paper still assumes that due process applies to U.S. citizens abroad who adhere to the enemy. On the surface, this sounds plausible and even generous: Why not consider the possibility that a U.S. citizen abroad has some rights against being killed out of the blue?
In fact, though, applying due process analysis to Awlaki produces a legal disaster. The problem is, once you consider due process, you have to give it some meaning — and the meaning you choose will cast a long shadow over what the term means everywhere else. …
The Obama administration’s apparent belief that due process can be satisfied in secret … inside the executive branch is arguably a greater departure from precedent. It is a travesty of the very notion of due process. And to borrow a phrase from Justice Robert Jackson, it will now lie about like a loaded weapon ready for the hand of any administration that needs it.
The white paper should have said that due process doesn’t apply on the battlefield. By instead making due process into a rubber stamp, the administration is ignoring precedent and subverting the idea of the rule of law. When is some law worse than none? When that law is so watered down that it loses the meaning it has had for 800 years.
Indeed. This is what comes from treating terrorism as crime rather than war. Bush was wise enough to understand the difference, and the legal implications that arise for all Americans when the two are confused.