WASHINGTON — The nation's vexation over the morality and legality of President Obama's drone war has produced a salutary but hopelessly confused debate. Three categories of questions are being asked. They must be separated to be clearly understood.
1. By what right does the president order the killing by drone of enemies abroad? What criteria justify assassination?
Answer: (a) imminent threat, under the doctrine of self-defense, and (b) affiliation with al-Qaida, under the laws of war.
Imminent threat is obvious. If we know a freelance jihadist cell in Yemen is actively plotting an attack, we don't have to wait until after the fact. Elementary self-defense justifies attacking first.
Al-Qaida is a different matter. We are in a mutual state of war. Osama bin Laden issued his fatwa declaring war on the United States in 1996; we reciprocated three days after 9/11 with Congress' Authorization for Use of Military Force — against al-Qaida and those who harbor and abet it.
Regarding al-Qaida, therefore, imminence is not required. Its members are legitimate targets, day or night, awake or asleep. Nothing new here. In World War II, we bombed German and Japanese barracks without hesitation.
Unfortunately, Obama's Justice Department memos justifying the drone attacks are hopelessly muddled. They imply that the sole justification for drone attack is imminent threat — and whereas al-Qaida is plotting all the time, an al-Qaida honcho sleeping in his bed is therefore a legitimate target.
Nonsense. Slippery nonsense. It gives the impression of an administration making up criteria to fit the president's kill list. No need to confuse categories. A sleeping Anwar al-Awlaki could lawfully be snuffed not because of imminence but because he was self-declared al-Qaida and thus an enemy combatant as defined by congressional resolution and the laws of war.
2. But Awlaki was no ordinary enemy. He was a U.S. citizen. By what right does the president order the killing by drone of an American? Where's the due process?
Answer: Once you take up arms against the United States, you become an enemy combatant, thereby forfeiting the privileges of citizenship and the protections of the Constitution, including due process. You retain only the protection of the laws of war — no more and no less than those of your foreign comrades-in-arms.
Lincoln steadfastly refused to recognize the Confederacy as a separate nation. The soldiers that his Union Army confronted at Antietam were American citizens (in rebellion) — killed without due process. Nor did the Americans storming German bunkers at Normandy inquire before firing if there were any German-Americans among them — to be excused for gentler treatment while the other Germans were mowed down.