OPINION:
One morning at the end of September 2011, a young American who had been born in New Mexico and was residing in and traveling through Yemen was killed by a drone strike while having breakfast. The strike was apparently executed by the Joint Special Operations Command under the direction of the CIA.
The young man was a cleric who had spent most of the last decade of his short life encouraging his fellow Muslims to kill as many Americans as they could. There can be little doubt that Anwar al-Awlaki deserved his fate: He was personally responsible for winding up the unhinged and the unbright and sending them off to bring violence and death upon the innocent.
At the same time, there is the uncomfortable fact that no American court had ever found him guilty of anything. In an attempt to get beyond that, Team Obama tried to recast the execution as a matter of war. In June 2014, a previously classified memorandum from the Justice Department was released that described al-Awlaki’s killing as a lawful act of war.
There is only one problem with that, but it is a big one: We’ve never declared war on anyone during the decades of the global war on terrorism. You can’t really classify the killing of someone as an act of war unless you have actually declared war. In keeping with the unfortunate expansion of the imperial presidency, however, we don’t declare war anymore. We simply start killing people, even American citizens, apparently.
The most recent war we declared? The war against the Japanese and the Germans in 1941. It is not coincidental that those were the last wars we won. You can’t win a war unless the entire nation is committed to it, and only Congress can commit the nation. What the past 80 years have taught us is that the executive branch can kill people and destroy buildings but is incapable of winning wars.
Last week, in the southern Caribbean, about 2,000 miles from the mainland United States, a boat was struck and destroyed by a missile (probably a Hellfire) fired by American service members. Eleven crew members died. That is about the sum of what we know.
The administration has indicated that the boat in question was running drugs on behalf of Tren de Aragua. That certainly seems possible and perhaps even likely. Nevertheless, the usual course of action is for the U.S. Navy or Coast Guard to interdict such vessels and, at a minimum, give them an opportunity to surrender.
For reasons either unknown or not articulated, that didn’t happen here.
What seems to have happened is that American sailors or airmen fired on the boat unprovoked. When someone online pointed out that an attack on an unarmed vessel in the absence of a declaration of war could be considered a war crime, one senior administration official’s digital manager indicated that they didn’t care. They should.
If you want to declare war on drug gangs or terrorists, or whomever, that’s great, but you should first summon the humility to ask Congress for such a declaration. Only then can you be sure that Americans have had a chance to weigh the information available and make informed decisions about whether the risks posed by a potential adversary are worth risking the lives of their sons and daughters.
Beyond all that, there is the simple question of due process, both for killers such as al-Awlaki and for whomever we killed on that boat.
This is not partisan. The irreducible reality is that every faction, every group in this nation, eventually gets crossways with administrations. The rule of law, due process and rights of the accused are all efforts to ensure that whoever is in charge is constrained in important ways from using the considerable power of the state to have their way.
Make no mistake: Today, it might be someone you support doing something of which you approve, but eventually, precedents get used in unforeseen ways to accomplish goals of which you disapprove.
• Michael McKenna is a contributing editor at The Washington Times.
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