Drones and Democracy A Legal Question, But also One of Policy

The leak this week of a Justice Department memo justifying targeted drone killings of Americans abroad has opened President Obama to criticism and drawn comparisons to the Bush administration's notorious "torture memos." The document isn't on the same scale, but Congress should continue asking tough questions.
Von Eugene R. Fidell
Two Grey Eagle drones on the tarmac in Afghanistan.

Two Grey Eagle drones on the tarmac in Afghanistan.

Foto: HO/ AFP

It's no secret that many who supported President Barack Obama in the 2008 election have been disappointed in his failure to make a cleaner break from his predecessor's policies. The leak this week of a 16-page US Justice Department document -- an unclassified abridgement of a long, detailed 2010 memorandum produced by the Justice Department's Office of Legal Counsel (OLC) -- will likely cause this criticism to grow. Though Obama has directed the Justice Department to release the longer documents to the Congressional Inteligence Committees, there are apparently no plans -- at least so far -- to make them public. Congressional pressure may change this.

The leaked "white paper" outlines legal arguments for using drone aircraft to target and kill American citizens abroad who are considered terrorists. Without ever naming him, it refers to drone attacks like the one that led to the death of Anwar al-Awlaki, an American-born cleric who joined al-Qaida and was killed in a CIA drone strike in Yemen in September 2011.

Some may find it tempting to argue that this document -- or the OLC memorandum on which it rests -- is the Obama administration equivalent of OLC's notorious "torture memos," drawn up during the administration of George W. Bush, in which torture was perversely classified as such only if it led to death, organ failure or lasting injury.

The recently leaked document is completely different, and any suggestion that this administration is simply a clone of Bush-Cheney is nonsense. Torture is now forbidden, in fact as well as in law -- even if no one from the CIA has been prosecuted for it. Still, it is fair to be concerned about where this administration, headed by a recipient of the Nobel Peace Prize, stands in the controversy over drone attacks.

To be sure, the document is marvelously abstract, and it assesses the use of drones to kill US citizens in the dry language of a law review, applying case law and constitutional provisions as if all that were at issue were a traffic stop. It also applies international laws of war.

But disturbing questions remain, both as to just what standards the executive branch will apply to drone attacks aimed at US citizens and, perhaps even more significantly, whether mere legality  is the end of the discussion or only the beginning.

'An Imminent Threat'

The document concludes that a US citizen who is a senior operational leader of al-Qaida or an "associated force" may lawfully be targeted if three conditions are met.

  • First, an informed, high-level official of the US government must have determined that the targeted person "poses an imminent threat of violent attack" against the US.
  • Second, capture must not be feasible, and the US must continue to monitor the individual to see if capture becomes feasible.
  • Third, the operation must be conducted in a manner consistent with international Laws of War principles, which stipulate necessity, distinction between combatants and innocent civilians, proportionality, and the avoidance of unnecessary suffering.

At first blush, this sounds like a suitably high standard to meet for bringing about the violent death of a citizen. On closer inspection, it is like Swiss cheese. The fact that it has become known only as a result of a leak does little to engender public confidence. Moreover, the underlying OLC memorandum remains secret. Obama has asked that it be released to lawmakers, but there's no indication it will enter the public record.

The real issue is whether the standards and decisional process regarding drone attacks are lawful and, equally if not more importantly, whether they are good policy. These are not the same thing.

From a legal perspective, the "white paper" leaves a host of questions up in the air and takes positions that may not approach the extravagant claims of the Bush administration but still confer disturbingly broad power on the executive branch. For example, what is the authority for the drone program when directed at US citizens? The 2001 Authorization for Use of Military Force (AUMF), on which the war in Afghanistan was based, was not a blank check.

As broad as the AUMF was, Congress nonetheless insisted, in the immediate aftermath of 9/11, on limiting it to people and groups who were responsible for the attacks on New York and Washington and those who assisted or supported them. It is not a global warrant for actions against terrorist leaders. Congress may be willing to enact a new authorization that is broader, but before it considers taking that step, it must insist that OLC's position be made available to the public. Then Congress must decide whether the program comports with its view of how hostilities should be conducted.

Grave Questions

Another grave question raised by the leaked document is how one defines a violent attack to be "imminent." International law permits countries in limited circumstances to take preemptive action against individuals in other countries, including their own citizens. But what kind of evidence would prove an impending attack? Beyond solid intelligence from a reliable informant such as a mole or a captured co-conspirator, or intercepted mobile phone or Internet communications, what would it take? The "white paper" doesn't say, speaking instead of how terrorist warfare does not consist of a massive, cross-border attack but rather a "drawn out, patient, sporadic pattern of attacks." If that is the focus, then "imminence" is a meaningless concept: The sky's the limit under such a test.

And who decides on a drone attack? The "white paper" says only that it must be an official who is both "informed" and "high-level." What does it mean to be "informed" and how high-ranking must that official be? The president or vice president? A cabinet officer? A general or admiral? A White House staff member? The "white paper" sheds no light on this. From the available information about the Navy SEALS operation in which Osama Bin Laden was killed, we know that President Obama gave the approval in that case, but was he personally the decision maker in the Awlaki case? Where the lives of US citizens are at issue, and especially in the absence of any judicial review, only the commander-in-chief must be allowed to make such decisions.

Finally, there is the question of how to define that capture is unfeasible. Is it unfeasible merely when a potential effort to capture the targeted person would put US personnel at risk? When doing so would require a sizable commitment, rather than just a few soldiers? When an effort to capture would be more awkward politically for the authorities in the country where the targeted individual is found? Congress ought to ask these questions. Maybe it will be satisfied with the answers, but there at least ought to be answers when the life of a US citizen -- yes, even a disloyal one -- is potentially at stake.

Let's not kid ourselves. The Obama administration is no clone of the Bush administration, and saying it is serves no purpose. Nonetheless, both the fact that only through a leak has the "white paper" become public and the content of the document itself indicate that expansive views of executive power remain. Since the courts have refused to weigh in on the issue of drone attacks, only Congress, which, after all, has the constitutional power to declare war, can rein in the executive branch. It ought to, and it ought to consider not merely whether drone attacks on malevolent US citizens overseas are constitutional, but also whether they are right as a matter of policy.

Military law expert Eugene R. Fidell, 67, is a lecturer at Yale University and former president of the National Institute of Military Justice. His courses include a seminar on the legal issues surrounding the Guantanamo prison camp.
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