Pre-Crime does not pay

Flower chucker. From Notional Value.

As Emptywheel has been pointing out in her series on "Setting Up a Department of Pre-Crime", discussing the FISA or FISA-like court that might be established to oversee the president's American-murdering activities, such a court is going to be in the very odd position of, [jump]
effectively, sentencing people to death not for crimes they have committed, but for crimes they may commit at some point in the future, and which are not even necessarily crimes.

BRENNAN: Senator, I think it’s certainly worth of discussion. Our tradition — our judicial tradition is that a court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield, as well as actions that are taken against terrorists. Because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives. That is an inherently executive branch function to determine, and the commander in chief and the chief executive has the responsibility to protect the welfare, well being of American citizens. So the concept I understand and we have wrestled with this in terms of whether there can be a FISA-like court, whatever — a FISA- like court is to determine exactly whether or not there should be a warrant for, you know, certain types of activities. You know…

I don't see how you can really fault Brennan's reasoning here—that Jesuit training really does tell. FISA could rule, perhaps, on whether a drone could be used to spy on an American citizen, but not on whether he ought to be blown up. It isn't something a court should be asked to do. Indeed, I'd personally think an attorney who took part in such a procedure would be guilty of an ethical violation, like a physician who assists in an execution.

Whereas, if it's a war, the whole argument is irrelevant anyway. You don't kill people in a war because they're "guilty" of some crime or other, actually or potentially, you kill them, I suppose, because your commander's commander's commander believes that's how the war aims are to be achieved. And by the laws of war you should only kill those who are "belligerents", the wagers of war, who are doing the same thing on the other side, i.e. doing their best to kill you in turn.

But when they try to demonstrate that it's a war it gets embarrassing.

KING: It’s analogous to going to a court for a warrant — probable cause…

(CROSSTALK)

BRENNAN: Right, exactly. But the actions that we take on the counterterrorism front, again, are to take actions against individuals where we believe that the intelligence base is so strong and the nature of the threat is so grave and serious, as well as imminent, that we have no recourse except to take this action that may involve a lethal strike.

No Jesuitical refinement here: note how he plunges into the word salad: "our actions are to take actions", and the way "imminent" gets squeezed in because it's part of the legal argument rather than because it contributes any meaning, and "action that may involve a lethal strike" (what does it involve otherwise?). It's because he wants to make two quite different statements at once, one of which he knows to be absurd, or would know if he allowed himself to think straight about it. That is, what exactly does it mean to say that they "have no recourse"?

It means that this decision to "take action that may involve a lethal strike" is one of those Tough Decisions, or decisions that the Tough take even though they are plainly both morally and tactically wrong, precisely because if they don't decide that way it will put their Toughness in doubt. Because it is obvious, if only from a purely pragmatic standpoint, that raining death from the sky on Afghans and Yemenis and Somalis and whoever else (the case of Pakistan being absolutely sui generis, so much worse than the others that it can't be considered at the same time) is not the best way to win their hearts and minds, even if only a tiny number are not "guilty" or belligerent.

From Jackie No Name.

And in any case Al Qa'eda isn't a nation, isn't a caliphate, isn't an army, isn't anything one can make war against—scarcely even can be said to exist except as an on-off criminal conspiracy—and is not a "grave and serious, as well as imminent" danger to anybody unless we make the mistake of thinking we know where all the "members" are.

But we had to have a war, didn't we, with the Authorization to Use Military Force of September 14 2001:

a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. 

(b) War Powers Resolution Requirements-(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supersedes any requirement of the War Powers Resolution.

Just as it is not the constitutional responsibility of the judiciary to horn in on this kind of issue, it is the constitutional responsibility of the legislature to do so. And since this is really the most irresponsible Congress in the history of the Republic (or at least right up there in the top five), nothing is going to happen. Obama legally has all the power John Yoo and Robert Delahunty say he has, I'm afraid, and all we can do is be grateful he's not using it all, and hopeful he will continue to use less and less.

From The Pictionary.