The role of the courts in overseeing the executive branch is to make sure the administration acts correctly, not to grant permission for it to act, American Enterprise Institute scholar Michael Rubin says.
When asked by J.D. Hayworth and John Bachman on "America's Forum" on Newsmax TV for his reaction to Monday's ruling by the Second U.S. Circuit Court of Appeals that essentially requires the White House to justify the drone killing of American al-Qaida member Anwar al-Awlaki in Yemen, Rubin reiterated his belief that the courts should not dictate policy.
"The duty of the court is to review decisions which are made," Rubin said. "If you have the court act before in order to give permission, I see that as a violation of separation of powers. The court should never be a decision-making body; it should be a review body to ensure that the Obama administration or whoever is in charge has actually acted properly."
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Rubin does not think the court ruling will affect the Obama administration's approach.
"I have no faith in this administration when it comes to securing the United States or defeating terrorism," Rubin said. "If we just look at the last week, the Obama administration has announced, and actually the New York Police Department has said, with Obama administration buy-in, that it would stop the surveillance conducted at mosques.
"This was coming the same week that al-Qaida in the Arabian Peninsula showed one of the biggest powwows that we've seen of al-Qaida plotting and swearing to destroy the United States. Those two actions juxtaposed together suggest to me that the Obama administration is not serious, and it's entrenched in a pre-9/11 attitude."
Drone usage should not need court justification, Rubin said.
"The reason we use drones, plain and simple, is because they act as a substitute for the deployment of military operations," he said. "Sending one drone into the tribal area of Pakistan or into remote parts of Yemen is, in effect, a substitution for sending in several brigade combat teams with all the logistical support that they would need."
Rubin said the administration's history of bungling past missions to eliminate al-Qaida operatives has made it more difficult to justify these attacks.
"Unfortunately, the problem is the Obama administration never learns from its mistakes," Rubin said. "Every time they take out senior al-Qaida leadership, as they did admirably with Osama bin Laden, they do a victory lap, and you have folks inside the administration say al-Qaida is dead.
"But as soon as you announce those strikes, or as soon as you announce the capture of documents or an al-Qaida operative, what you're doing is putting an expiration date on the intelligence that has come with it.
"Ultimately, we've got to recognize this is a continuing problem. Ultimately, that's always why we need to have a military outlook toward defeating al-Qaida rather than a police action outlook, because if you use a military outlook, the standards of justice are different," he said.
"You can preempt al-Qaida's activity. If you have to rely on police action, either you have to expose sources and methods, which undercuts our ability to fight terrorism in the future, or you have to rely on forensic evidence, which means allowing the terrorist attack to occur."
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