Richard Herman is a retired Air Force officer and flew C-130s and F-4s. He also served as an operations plans officer and taught at the Air Force Academy. He is the author of 14 novels and currently lives and writes in Folsom.

Viewpoints: Drones are a just tool against elusive enemy

Published: Thursday, Feb. 14, 2013 - 12:00 am | Page 11A
Last Modified: Thursday, Feb. 14, 2013 - 7:35 am

A famous quote by George Orwell holds that "We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm." The year was 1945, and it still echoes with the harsh reality of wartime.

Now, almost 70 years later, we are engaged in a war with Islamic terrorists under far different circumstances. But it is a war Congress recognized under the War Powers Resolution of 2001 when it authorized the president to "use all necessary and appropriate force against those nations, organizations, or persons … (who were involved in 9/11) … in order to prevent any future acts of international terrorism against the United States."

To an old fighter pilot like myself, that sounds like pretty clear marching orders, and the use of drones seems like an appropriate response. In a military sense, drones are simply the latest generation of standoff weapons, and the precision and effectiveness of the targeting is ample proof the operators have defined objectives and rules of engagement. Of course things do go wrong, but that's when leadership and congressional oversight come into play.

Yet, there are questions being raised by an ad hoc group of alarmists, skeptics and critics about the constitutionality of these attacks when the target is a U.S. citizen. Rather than focus on the reality of the conflict, they are more concerned about the "legal architecture" to deal with a new mode of war where "appropriate force" must give way to due process.

This is an interesting legal argument when the action is far from U.S. soil and outside our legal jurisdiction, which is why the terrorists are there in the first place. Apparently, these critics believe the 2004 Supreme Court ruling that a U.S. citizen who associates with enemy belligerents becomes a belligerent does not apply because a U.S. citizen never loses his or her rights without due process.

My war was Vietnam. It was an interesting time and place where real bullets, danger and death ruled the day.

That was over 40 years ago, yet I distinctly remember never seeing a politician, lawyer or protester anywhere close to the action. This was just as well since a court injunction or protest sign offers little protection against an AK-47. They were all safely back in the United States – where their spiritual descendents are now arguing that a U.S. citizen never loses his, or her, civil rights no matter where they are, or what they are doing.

Yet, these are the same citizens who deliberately removed themselves from the jurisdiction of our laws in order to harm us. They are geographically outside the law, and, in this regard, are true outlaws who are shooting at us, or conspiring to do so.

The alarmists argue that we cannot engage them until we have proved to a legal certainty that they are participating in terrorist activities.

Rather than treat them as wartime belligerents outside the normal rule of law, they retain the full rights of a citizen. Due process trumps all, and jurisdiction be damned.

The politicians who follow this argument have a solution and want the intelligence community to provide proof that a U.S. citizen is engaged in terrorist activities before we send a drone in his direction. Once such proof is provided, then a legal, transparent review must occur before any launch order can be issued. Obviously, reacting to a threat and acting on intelligence in a timely manner is not an issue.

Unfortunately, the world of intelligence is full of shadows and can rarely achieve a 60 percent probability of certainty. This is far below the legal standard required by the alarmists and critics. It becomes even harder when politicians demand there be no collateral damage in any attack.

So rather than deal with the threat at hand, we bind our hands with legal strictures.

The question is a simple one: Are we more concerned about the rights of a belligerent, who happens to be a U.S. citizen and beyond the jurisdiction of our laws, than the right of law-abiding citizens to sleep safely in their beds?

I opened by quoting George Orwell, and will close by quoting Abraham Lincoln when he waived the rule of habeas corpus during our Civil War – "The Constitution is not a suicide pact."

Old Abe knew what he was talking about.

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