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Drones, the Constitution, and Rules of Engagement



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Over on the homepage NRO has been gracious enough to post my magnum opus about the drone war — suggesting a framework for greater transparency, less political involvement, and increased military effectiveness. Yet in all its ponderous length, I did not address the very narrow question that captivated Washington for a full day: When can drones be turned against citizens (or anyone) at home?

Dr. Krauthammer is spot-on: There is actually an easy answer to this question, one that would be broadly accepted on both sides of the aisle, and this answer has nothing to do with providing constitutional protections for citizen members of opposing forces in a military conflict. After all, the Constitution does not — on its face or as interpreted through Supreme Court precedent — provide additional due-process protections to American members of al-Qaeda (or any other force — state or nonstate — against which we are in a state of declared military conflict). It would be unwise to twist constitutional language to enable a class of American super-terrorists, with legal protections from American force greater than any other terrorist in the world.

But that’s not the end of the analysis. Not even close. The actual uses of military force in every theater of war (and even in regions not presently in a state of conflict) are governed by a panoply of additional regulations, including Rules of Engagement (ROE), treaty provisions, and Status of Forces Agreements (SOFAs). The rules vary wildly depending on the location and status of our military forces. In 2007 and 2008 — while I was in Iraq — our ROE gave us wide latitude to engage positively identified members of declared hostile forces. In 2009, I spent a month in Italy working on a short overseas training tour. If — by incredible happenstance — I was at a restaurant in Venice on a weekend, and I saw a member of al-Qaeda, I could not order my wine, get up, stab him to death with my steak knife, then sit down and sip a nice pinot. The rules are different.

The ROE within the United States should be extraordinarily narrow. And keep in mind, ROE have the force of law when applied to military personnel and are disregarded at the risk of prosecution. Here’s a quick stab at a version of appropriate stateside ROE applicable to members of hostile forces (obviously a final version would be more precise, but this gives an idea of the concept):

The use of military force is authorized upon approval of the National Command Authority (President and SECDEF) in the event a positively identified member of a declared hostile force commits a hostile act within the United States and its territories.

The use of military force is authorized upon approval of the National Command Authority in the event a positively identified member of a declared hostile force clearly and convincingly evidences hostile intent within the United States and its territories and civilian law enforcement assets are either unavailable or inadequate to provide a timely defense to human life or vital property or infrastructure.

The use of military force is not authorized against a positively identified member of a declared hostile force absent the commission of a hostile act or clear and convincing evidence of hostile intent. Nothing in these provisions shall be construed to impair the ability of the National Command Authority to exercise the inherent national right of self defense and order the use of military force to defend the United States from ongoing or imminent military attack, regardless of source.

The ROE above (again, this is a very rough draft) would eliminate the kind of nightmare scenario many drone opponents fear — the air strike at the coffee house, or the missile from the clear blue while sitting at dinner with your family — but it would permit a military response to not just ongoing terror attacks but also nightmares like the Mumbai attacks just before they unfold. For example, if teams of heavily armed terrorists were converging on a civilian soft target (but had not actually engaged that target), and the local police were inadequate to stop their advance, then military force would be not just appropriate but imperative.

In my piece on the homepage, I emphasize the paramount role of the military in targeting, but that’s within the theater of war. Targeting here at home (in the absence of widespread military conflict) should be explicitly limited to the most extreme circumstances, and it should be limited in writing, with congressional oversight.



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