At a time of declared war, the ACLU has filed a case seeking to reveal in public the details of the use of un-manned drones that seek and kill US enemies in several nations. This is one of the most effective tactics the US has. And the ACLU wants a court to reveal it, and then kill it. Somewhere on the Other Side, King George III is saying, “If I only knew about that attack across the Delaware in 1776, I would have crushed those upstarts.”
Some of the facts for this article, but none of the legal conclusions, come from a transcript posted on line of a TV news program featuring editors from the Wall Street Journal. As the third item, Paul Gigot mentioned that the ACLU has filed a Freedom of Information (FOIA) case concerning the use of attack drones in the war on terrorism.
In the more than three years that this writer has been writing and filing these ACLU Outrages, this is the most absurd of the lot.
The ACLU is asking the US government to reveal, in a time of declared war, the details of an apparently successful tactic now being used by the US military to defeat the enemy. If FOIA had existed at the time of WW II, would any court have tolerated for a single minute the attempt of any plaintiff to force the government to report in open court on the progress of any military tactic? About the destroyer efforts to find and sink the U-boats operating off the Atlantic coast of the US? About the effort to track Admiral Yamamoto, and shoot his plane out of the sky? About the plans to invade Sicily first?
To ask such questions is to answer them. A lawyer presenting such a case in WW II would have been thrown out of court on his ear, like an obnoxious bum from a bad bar in Brooklyn.
First, we are in a declared war. The language “authorizing the use of military force” and across international boundaries included in the Patriot Act as passed in September, 2001, was almost identical to the authority Congress gave President Jefferson in 1805 to go after the Barbary Pirates. (That was the only other time the US declared war without naming one or more nations as the enemy.)
Second, in time of war, the Constitution specifies that the President is the “Commander in Chief” and that means that, as advised by his Generals, he is authorized to use whatever military tactics he chooses, to carry out the war.
The idea that it is mandatory either that Congress be informed, much less be required to vote on every military tactic used is belied by the history of US warfare. Not only is this not required by the Constitution, it would obviously be self-defeating. Congress leaks like a sieve. If D-Day required specific advance approval of the Congress, someone would have leaked the information. The English Channel would have been filled with burning ships and bloated bodies. And the Allies would have had to sue for peace, leaving Germany in charge of the continent.
The ACLU is not acting for legal reasons here. It is driven by left-wing politics only. The drones are effective at finding and killing the enemy. They also risk no American lives in the precess. In short, they increase the chance that the US will prevail in this war. And that is what the ACLU opposes.
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