Greg Miller has an essential report in The Washington Post about the institutionalization of the "war on terror," revealing that the Obama administration is institutionalizing many of the worst aspects of the arbitrary death apparatus established by the Bush administration.
The "war on terror" has always been a somewhat difficult problem because it combines some aspects of ordinary police actions and some elements of war. Because the latter allows for killing without due process while the latter does not, however, it was perhaps inevitable that an executive branch whose war powers are increasingly unconstrained would gravitate to the latter. It is clear from Miller's article that this is in fact happening, as the administration is institutionalizing policies that classify people affilliated with Al-Qaeda as military targets who can be killed at the whim of the executive branch with no oversight. Particularly because these killings are certain to generate resistance and opposition, they also create an endless cycle of self-justification that makes clear that these killings will be a permanent feature of executive power rather than the temporary reaction to an emergency situation:
These counterterrorism components have been affixed to a legal foundation for targeted killing that the Obama administration has discussed more openly over the past year. In a series of speeches, administration officials have cited legal bases, including the congressional authorization to use military force granted after the September 11 attacks, as well as the nation’s right to defend itself.
Critics contend that those justifications have become more tenuous as the drone campaign has expanded far beyond the core group of al-Qaeda operatives behind the strikes on New York and Washington. Critics note that the administration still doesn’t confirm the CIA’s involvement or the identities of those who are killed. Certain strikes are now under legal challenge, including the killings last year in Yemen of U.S.-born al-Qaeda operative Anwar al-Awlaki and his 16-year-old son.
Counterterrorism experts said the reliance on targeted killing is self-perpetuating, yielding undeniable short-term results that may obscure long-term costs.
“The problem with the drone is it’s like your lawn mower,” said Bruce Riedel, a former CIA analyst and Obama counterterrorism adviser. “You’ve got to mow the lawn all the time. The minute you stop mowing, the grass is going to grow back.”
As with any arbitrary executive action, the lack of oversight is disturbing and makes the program indefensible. There may well be some unique cases in which actual terrorist leaders the 2001 AUMF was designed to cover are genuinely beyond the reach of any legitimate law enforcement, possibly justifying the use of military force. But because there is nothing resembling checks and balances, it's impossible to know how many targeted individuals fit this criteria. And even in the extremely unlikely event that everyone targeted fit this criteria, a large-scale program that creates more terrorists than it eliminates while in inevitably resulting in many innocent deaths along the way is both counterproductive and grotesquely immoral. And as Salon's Glenn Greenwald notes, the unchecked processes used to determine targets is also certain to threaten the privacy rights of Americans too.
What's particularly depressing is that it's not clear what can be done about this institutionalization of arbitrary executive power. The increasing abdication of Congress's authority over military power is longstanding, and presidents face meaningful opposition only (as with Obama and Gitmo) in rare cases where they try to move away from arbitrary actions taken by past administrations. Congress could substantially weaken the legal justification for the "disposition matrix" by rescininding the 2001 AUMF, but regardless of the partisan composition of Congress that this won't happen anytime soon. As this week's debates made clear, Romney's policies won't be better and could be worse. This is the essential problem with giving "emergency" powers to the executive branch—once claimed, they are too rarely surrendered, even when the emergency that provided the justification fades.