FU - FairAndUNbalanced.com

Michael Isikoff's summary of the Obama administration drone policy seems pretty scary. The President can order an American killed if that citizen crosses the border and stands outside the United States.

Although some allegation has to be made of an imminent threat, the word "imminent" is treated a bit cavalierly. It doesn't have to be an immediate threat, only imminent. The distinction may be lost on the uninitiated.

And there is no procedure except that the President, or an appointed bureaucrat, makes the accusation, considers the charge, determines the verdict, and executes the sentence.

I listened to a conservative Republican yesterday morning as he mocked those of us who protest against torture, but express not a murmur against killing someone without trial. Isn't killing a bit more extreme than torture?

Some policy we've got here.
Well, maybe not.

Isikoff chooses his words a little more carefully than that. He implies, rather than states. But his source is impervious to challenge.

The document he managed to obtain (pdf) is a White Paper put out by someone in the Justice Department. For a White Paper, it is surprisingly brief, only 16 pages, including footnotes. And it is readable. Each point is referenced with multiple legal citations, Supreme Court decisions with standing, much of it going back a hundred years.

For the most part, the legal justification deals with wartime protocol. If an American citizen puts on the uniform of a hostile army, that citizen sacrifices certain procedural rights. You don't hold a trial before shooting such a person on a field of battle. When practical, attack and ambush are not only justifiable, but mandatory. In a war of terrorism, the lack of a uniform is not a barrier.

It is not until page 9, a little more than halfway through, that the authors get to the analogy that seems clearest, at least to me. If a US citizen begins firing at a police officer or at others while within range of that officer, nobody questions the right or the duty to respond with deadly force. And it is all done without a jury, or a warrant, or a judge.

I think of the deranged man in Alabama who killed a courageous bus driver, then kidnapped a youngster from the bus. When the FBI determined that the man had a gun and supposed a danger to the child, the man was killed. There was no judicial process before the kidnapper/murderer died. There was no proof that he was about to kill the little boy, only a reasonable possibility. Still, there was no objection from any reasonable person.

The argument is a bit dodgy. A police officer is subject to after-the-fact review of any death. I suspect the FBI action is also subject to some scrutiny.

As for the hypocrisy of opposing torture: if a suspect was not killed, but only wounded, we would object if that suspect was tortured after capture. Killing may be worse than torture, death being an everlasting condition, but killing may be justified when torture is not.

The principle is that not all killing is murder, and not all extra-judicial killing is illegal.

The conditions, as outlined in the discovered document, are as defined as can be expected without a specific case in mind.

• There must be no reasonable opportunity of capture.

• There has to be an imminent threat, which may be a pattern of action. The fact that the deranged individual in Alabama had killed a bus driver made the threat to the child several degrees more likely.

• The window of opportunity for attack must be found to be limited.

• The action must be proportional, to the degree that risk to bystanders be low.

• If there is some signal of surrender, that surrender must be permitted.

What seems to me to be missed is that the document is not, at least as far as I can see, an expression of policy. It is a legal analysis of the farthest possible limits of the law. If policy does take us to the extreme, you may go this far but no farther.

If the document is not policy, and nothing indicates that it is, it leaves open the question of just what the President's policy may be.

And it leaves open future actions. If the law is as the document describes, it is leaves a lot of latitude. Former Presidential Security Advisor Zbigniew Brzezinski advocates the establishment of a procedure of formal review. I see that as a necessity.

I trust President Obama. I could have trusted a President Mitt Romney. But there are a lot of potential candidates.

I don't want to trust everybody.