In the Wall Street Journal today, former Attorney General Michael Mukasey argues against giving secret, unelected courts the authority to oversee summary war time executions of American citizens. Instead, he says Congress should take action to clarify the commander-in-chief’s powers in the war on al Qaeda.
Mukasey focuses a fair amount of criticism at the Obama administration for what he says is hypocrisy in drone use and misguided reliance on international law. But he also advances and refines arguments others on the left and right have made against a secret drone court. The heart of his argument is that drone courts would be impractical and that Congress should take its Constitutionally-mandated responsibility for declaring and defining the war.
Mukasey says the secret drone court, championed by the New York Times editorial board, is a bad idea because
Judges have no basis or background that suits them to review targeting decisions and no way to gather facts independently. Because they may serve for life, there is no way to hold them politically accountable for a decision—how best to defend the country—on which elected politicians are supposed to rise or fall. If it is simply a matter of introducing into the process some figure in whom the public has unreasoning trust, we might just as plausibly have the president’s targeting decisions reviewed by Oprah.
Instead, Mukasey says, Congress should revisit the 2001 Authorization for the Use of Military Force that provides the legal underpinning for Obama’s war fighting powers against al Qaeda and its affiliates.
One way to untangle this situation would be to amend the AUMF to clarify the scope of the conflict in which the U.S. is engaged. On the tactical level, that would permit Congress to define the circumstances in which the U.S. may detain and interrogate—measures at once more humane than drone strikes and far more likely to yield actionable intelligence rather than merely consume it. The original law doesn’t mention detention or interrogation, instead referring only to the use of armed force.
On a strategic level, a legislative effort to amend the AUMF would require lawmakers to face up to the reality that America’s adversary isn’t simply this or that group but rather those who pursue a totalitarian Islamist ideology.
Congress has been feckless recently. But in the fight against al Qaeda, Democrats have been eager to show toughness and Republicans have been eager to undo the impression they support an imperial presidency. The multi-year effort to refine and institutionalize the Patriot Act shows the peoples’ representatives, to whom the Constitution gives the authority to declare war, have been capable of addressing the fight against transnational, asymmetric enemy. Those who endorse giving secret, unelected courts the authority to oversee summary war time executions of American citizens, should explain why Congressional oversight isn’t better.