The latest defense versus civil liberties issue to come up concerns the Obama Administration's heavy use of missile attacks from remotely piloted vehicles (RPV's or drones) to kill Al Qaida and affiliated terrorists, especially if the targets happen to include American citizens. Civil libertarians, especially Democrats, are very worried that citizens, according to the Constitution's Fifth Amendment, ought to face arrest, indictment and conviction at trial before suffering death or punishment. The proper resolution of these concerns ought to be the passage of a court patterned after the FISA Court established in 1978 following President Nixon's surveillance of political enemies and anti-war groups during his Administration.
Michael Isikoff of NBC News recently obtained and published a Department of Justice "White Paper" offering legal justifications and standards to apply when targeting American citizens in the ongoing campaign against terrorist groups overseas. It says, "senior operational leaders of Al Qaida or an associated force" may be targeted if they present an "imminent threat of violent attack" to the United States. Imminence is not defined as having clear intelligence that a specific attack is about to happen. The NBC site explains rather, that an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities."
This goes to the nature of the type of struggle American leaders have to grapple with. Gone are the days when an American defector, donning the uniform of Nazi Germany in World War II or North Korea during the Korean War, made himself vulnerable to American attack simply by that act. The war is not declared in the traditional sense of the term, it is not against the government of a recognized nation state, and the combatants on the opposing side do not wear identifiable uniform. They are also outside the boundaries of the United States, typically in lawless areas not under the control of the local government, such that normal police and judicial procedures like arrest and extradition are out of the question. In such cases, is it all right for the President, CIA Director or Secretary of Defense simply to give an order or sign a form stating that a certain person is marked for death?
In the American system, probably not. There should be some type of oversight of the Executive Branch's call, but it can't go through the regular courts due to the time constraints of acting to mitigate deadly threats, nor can it be conducted in public in order not to tip off terrorist targets and make them and the rest of the world privy to our intelligence. The clear solution is to involve all three branches of the U.S. government along the lines of the FISA Law (Foreign Intelligence Surveillance Act of 1978).
The Legislative Branch (Congress), would pass a law defining terms and parameters and setting standards under which individuals could be singled out as terrorist threats. The law would also commission a special court. The Executive Branch (President or Executive Departments concerned with security) would bring the evidence or intelligence to the Court for its examination. The Judicial Branch (Special Court) would determine if the intelligence justified the targeting according to the legal standards of the Act, and approve or deny the request. That's pretty much how the FISA Court operates now in order to approve the surveillance of suspected U.S. citizen spies within our territory. An 11-member court appointed by the Chief Justice of the Supreme Court and housed within the Department of Justice Building provides the oversight, making sure that national security is maintained, but only after an established threshold of suspicion has been reached. Thus can the nation defend itself against foreign-based U.S. citizen enemies without giving any future potential rogue Administration unchecked power over life and death.
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