Starboard Broadside

If you don't know what the Overton Window is, it's basically the theory that there are constraints on what policies or government actions are politically acceptable, out of the full range of possibilities (not every possibility will be acceptable to the electorate), and that this window of acceptable policies can be pushed toward one extreme or the other, but it does not expand (as new ideas become acceptable, other ideas become outmoded or unacceptable to a changed electorate). That's the quick version, but here's a pretty good concise explanation. Sometimes it's a good thing that the window gets pushed in a certain direction, but sometimes it means certain unthinkable ideas have become acceptable (though with civil rights that tends to be a good thing, from my perspective) or it means good ideas are being left behind as the window moves.

I'm concerned by a development regarding US airstrikes in the war on terrorism. As long-time readers of this blog know, I've written passionately against the growing use of airstrikes, especially from drones over Pakistan. Now from Spencer Ackerman at TWI, we have word that the US is looking at the legal issues surrounding the use of airstrikes on natural-born American citizens who have joined terrorist organizations overseas. So far this is about one particular radical New Mexico-born Muslim cleric in Yemen (the guy linked to the Ft. Hood shooting in Texas and the underwear bomber), but as the New York Times extensively reported recently, a young Syrian-American from Alabama has risen to a prominent position in a militant Islamist organization in Somalia and is recruiting other Americans to join, so conceivably this could become a bigger legal/policy issue. Here's Ackerman's earlier summary of the new assassinations policy, based on a Washington Post story:

Director of National Intelligence Dennis C. Blair acknowledged Wednesday that government agencies may kill U.S. citizens abroad who are involved in terrorist activities if they are “taking action that threatens Americans.”
Blair told members of the House intelligence committee that he was speaking publicly about the issue to reassure Americans that intelligence agencies and the Department of Defense “follow a set of defined policy and legal procedures that are very carefully observed” in the use of lethal force against U.S. citizens.

That makes it sound an awful lot like there’s a thorough discussion of which Americans may be killed. Blair: “We take direct action against terrorists in the intelligence community. If that direct action, we think that direct action will involve killing an American, we get specific permission to do that.” The so-called assassinations ban isn’t ironclad, but still, this appears to be a fairly low standard for killing an American citizen:

The director of national intelligence said the factors that “primarily” weigh on the decision to target an American include “whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans.”

Of course, any specialized policy, however low a standard, for bombing-assassinations of American citizens overseas won't apply to non-Americans, so this policy change just reinforces the double standards we have and our callous approach toward blowing up human beings with our unmanned drones and manned bombers. In fact, one solution to the citizenship question might be well be to target non-Americans near American citizens, exploiting a loophole (see preceding Newsweek link) that allows the US to ignore the known presence of an American citizen in the target area on a non-American. And because terrorists are often with other terrorists, it is more likely than not that a scenario featuring this loophole will present itself readily (an American terrorist near a non-American terrorist, using the latter as the official target and the American as collateral damage).

As Ackerman examined, because the US can't strip US citizenship from natural-born citizens, the administration will have to forge ahead on developing new specialized legal gymnastics (such as what I just outlined) if they intend to assassinate American terrorists from the air:

In the (unconfirmed) event anyone in the Obama administration is trying to annul the citizenship of any American recruited by al-Qaeda in order to kill him without legal encumbrance, the evidence is (mostly) clear: you can’t.

“If you’re an American citizen, we don’t take away your citizenship,” said Karen Greenberg, director of the Center on Law and Security at New York University, a think tank largely devoted to studying the constitutional implications of counterterrorism.

[...]

Obama administration officials would not comment for the record, but one said that such an option was not under any serious discussion. Moral and legal considerations aside, Greenberg said it’s not possible — at least not for citizens born in the United States.

“They can’t do this with al-Awlaki. He is an American citizen, born in New Mexico. They can’t take away his citizenship,” Greenberg said, after tasking her legal staff to research the question in response to a query from TWI.

So, in my view, this development just pushes the Overton Window toward legitimizing and making even more acceptable the sweeping use of airstrikes. Worse, it gives credence to those who fear that the federal government might one day turn these drones onto dangerous domestic criminals fleeing justice, just like we use them for terrorist suspects around the world. It's a fine line between panicked conspiracy theory and legitimate concerns about collateral damage - death of nearby innocent civilians - that would ensue from using them here (just as it occurs overseas). And where it used to be more on the conspiracy side of the fence, the Window is moving toward valid fear, since we can now strike natural-born US citizens overseas in an extrajudicial effort to fight terrorism. In fact, if you look at the above passage about Dennis Blair's stated standard for striking Americans, it looks like domestic terrorists (in the vein of Timothy McVeigh or homegrown Islamist cells) might even be eligible for airstrikes:

The director of national intelligence said the factors that “primarily” weigh on the decision to target an American include “whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans.”

They're bad people, but I still believe in the rule of law, and I don't want airstrikes in the US (for the same reasons I don't want drone strikes in Pakistan or Yemen or Somalia). This should be a scary thought, even for supporters of its use in the global war on terrorism.