Drones, the Constitution, and the president
Call it the drone debates.
Some scholars argue the administration is violating both constitutional law and international law in using drones overseas. Others contend the commander-in-chief is simply carrying out his wartime powers. Put aside rhetoric and politics, and it is actually quite clear President Obama is conducting these operations lawfully and in accordance with international laws - as long as the use is for persons outside the United States.
Ironically, much of the legal rationale for the drone attacks - even against U.S. citizens overseas - found in the Obama administration's released memos by the Department of Justice sound much like the Bush Doctrine of 2002. Warfare has changed and policymakers within the United States, regardless of party affiliation, have now accepted that simple principle. The administration, through these leaked documents, has concluded this is a unique conflict - one that employs both law enforcement personnel and the armed forces.
The war on al-Qaida is a 21st century hybrid war requiring novel thinking, and novel action. Drones avoid putting "boots on the ground." Further, they ensure less collateral damage than ordinary armed conflict produces.
Certainly, legal and constitutional issues are emerging as a result of these new "robot" wars, but the administration is trying to conduct these operations, and carry out these attacks, in the most efficient and humane manner possible - against persons committed to killing U.S. and Western civilians.
This enemy continues to de-stabilize myriad nations, such as Syria, Libya, Egypt, Algeria, Mali, and most recently, Tunisia, which has taken a turn for the worst. Al-Qaida 2.0 has emerged in the vacuum created by the failure of the Arab Spring to produce the democracy and freedom that many thought possible.
The real issue is how to prevent abuse of drone technology and inject a proper review and legal analysis of actions prior to engaging in these operations. Essentially, as the founding fathers would have supported, we need a "check" to the executive when conducting drone attacks. As Sens. Diane Feinstein (D-Calif.) and Angus King (I-Maine), have suggested and are now studying, some sort of a national security court, like the FISA court or a terrorism court (similar to the one I have advocated for), is needed to prevent potential abuse by the executive branch.
Noted national security law scholars, such as Robert Chesney, have recently further written and advocated the need for just such a court.
Here are some key segments from the leaked White Paper:
"The President has authority to respond to the imminent threat posed by al-Qa'ida and its associated forces, arising from his constitutional responsibility to protect the country ... (including) using force against al Qa'ida and its associated forces … (and) in defined circumstances, a targeted killing of a US citizen who has joined al Qa'ida or its associated forces ... Moreover, a lethal operation in a foreign nation would be consistent with international legal principles of sovereignty and neutrality if it were conducted … with the consent of the host nation's government."
Many human rights organizations and advocates were shocked to read this memo. However, it truly is a continuation, in most respects, of the Bush policies of the last decade.
The days of determining when an attack is imminent is harder than ever before. One al-Qaida fighter can act with the same force as an air raid, or tank movement of old. Technology, sophistication of weapons and a will to act like a warrior, all make the determination of whether an attack is imminent difficult. The president's broad interpretation is probably the best way to ensure he has the authority when the United States is threatened or national security is at risk.
For instance, U.S. born Muslim clerick Anwar al-Awlaki was killed by a drone in Yemen. He was coordinating and working with Umar Farouk Abdulmutallab of Nigeria during the Christmas Day (underwear) attack several years ago. Certainly, al-Awlaki was the key to the operation and was functioning (out of Yemen) as an operational commander. Thus, the drone was used to respond.
As for the restriction on targeting only senior al-Qaida leaders: Who makes that determination? That judgment now appears to be made by top administration officials at CIA or the Department of Defense based on best intelligence.
No consistent policy
And what to do about the legal ambiguities? We now have three options, it appears, for confronting the threat of al-Qaida 2.0. The United States can capture and send suspected terrorists to a military commission in Gitmo; take them to federal court and provide all the constitutional protections afforded a U. S. citizen; or kill them in drone attacks in a foreign land. The United States has used all three options for individuals essentially involved in the same type of operations against this country.
Does this mean U.S. policy is unclear? You bet.
It is amazing to me that Congress still affords the executive branch enormous authority by way of a law they quickly drafted in late September 2001 - the Authorization on the Use of Military Force (AUMF). This statute gives the president tremendous authority to conduct military operations against al-Qaida and its associates anywhere, anyplace, anytime.
It is a premise, and clearly articulated in the U.N. Charter under Article 2(4), that the territories of foreign countries will not be violated. The drone attacks in Pakistan and Yemen (nations we are not at war with) seem to violate this provision. Some scholars consider the attacks to be clear violations of international law.
However, there are exceptions to this provision. As the memo points out, some nations do "consent" to our operations. For their own domestic political reasons, they may not want to publicly declare such support of U.S. drone attacks, but nonetheless tacitly support our efforts.
Additionally, if some nations will not permit our operations due to inability or complete lack of support, in 21st century warfare, we cannot afford to simply wait to be attacked. If there is actionable intelligence of an attack on this nation by al-Qaida, we need to be able to respond to remove the threat.
The authority for such self-defense is provided (and cited in the drone memo) in Article 51 of the UN Charter. Certainly, the president needs that legal authority.
Drones, however, should never be used for such purposes within the continental United States. Military operations of this nature should be reserved for actions outside our borders. It is critical that this be made clear in both legal memorandum and by senior leaders. Domestic operations are best supported by the police and FBI.
The memos recently released and/or leaked to the media reveal the stark reality that the law has still not caught up with the wars of the 21st century. The key issue over the weeks, months, and years to follow is not necessarily the use of drones per se, but rather creating a "check" to the potential abuse that can arise from the executive branch relying too heavily on "robots" to conduct combat operations - whether overseas or within the United States. Sens. Feinstein's and King's ideas to provide a constitutional check are noteworthy and should be explored as expeditiously as possible.
Glenn Sulmasy is a law professor at the U. S. Coast Guard Academy in New London and Homeland and National Security Law fellow at the Center for National Policy in Washington DC. He is the author of "The National Security Court System - A Natural Evolution of Justice in an Age of Terror." The views expressed here are his own. Twitter @glennsulmasy.
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