Drones, the Law, and the President
Feb 7, 2013Posted by Glenn Sulmasy
There has been much ado about drone policy and the President's lawyers' justification for their employment this week. Director of National Intelligence nominee John Brennan endured tough, sometimes harsh, questioning during his confirmation hearings on Thursday. Some scholars argue the administration is violating both constitutional law and international law in using drones overseas, while others claim the commander-in-chief is simply carrying out his wartime powers. Putting aside the rhetoric and partisan bickering, it becomes clear the President is conducting these operations lawfully and in accordance with prevailing international laws - as long as the use is for persons outside the United States.
Ironically, much of the legal rationale for the employment of drones (even against US citizens overseas) in the released memos by the Department of Justice sounds an awful lot like the Bush Doctrine of 2002. Warfare has changed and the most newsworthy item from the documents is that this administration is still struggling with categorizing this struggle as an armed conflict of some sort.
This is a unique conflict - one that mixes the use of law enforcement and armed forces. It is a 21st century hybrid war requiring novel thinking, and novel action. Drones provide the option to not put "boots on the ground" to fight the War on al-Qaeda. Further, it ensures less collateral damage than would occur in ordinary armed conflict. Certainly, there are potential issues to struggle with the new "robot" wars, but the United States is trying to conduct these operations, and carry out these attacks, in the most
efficient means possible. Are there slippery slopes to this rationale? Certainly, but one way or the other, the enemy is confronting Western forces around the globe and continuing to destabilize myriad nations, e.g. Syria, Libya, Egypt, Algeria, Mali and this week, Tunisia took a turn for the worst.
Al-Qaeda 2.0 has emerged and the Arab Spring has not produced the democracy and freedom that many thought possible. The Arab Winter ensures the long war continues. Thus, the real issue is how to prevent abuse of such actions, and how to 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 these operations.
Here are key segments from the White paper to review:
"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, the inherent right of the United States to national self-defense under international law, Congress' authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa'ida under international law. Based on these authorities, the President may use force against al Qa'ida and its associated forces... in defined circumstances, a targeted killing of a US citizen who has joined al-Qa'ida or its associated forces would be lawful under US and international law. Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful. It is a lawful act of national self defense.... 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 or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted."
Many human rights organization and advocates were shocked to read this memo. It truly is a continuation, in most respects, of the Bush policies of the last decade.
Arguments and issues to consider when analyzing the drones policy include:
Leaked "white paper": It is important to remember, this was a leak of a "draft" memo by the DoJ. Leaks are never healthy for government operations, particularly when they involve national security. Attorney General Holder was quick to remind all this is a legal analysis provided for internal use to be applied only to specific, fact driven and
intelligence supported, scenarios. You really cannot look at this legal document in a vacuum.
Authorized when attack is imminent : This sounds like the doctrine of preemption argued by the Bush administration since 2002. The memo is a reminder that the days of determining when an attack is imminent is harder than ever before. One al Qaeda 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 US is threatened or national security is at risk. For instance, 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, Anwar 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.
Only for Senior al Qaeda leaders: Who makes the determination as to who
is senior? Is it the top tier leaders, and only operational commanders? How does one know? It appears to be an intelligence determination and decided by senior administration officials, CIA or DoD senior leadership. This, like any attack, is likely reserved for the highest levels of the national security team.
Legal ambiguities: We now have three options, it appears for confronting the threat of al Qaeda 2.0. The US can capture and send to a military commission in Gitmo (KSM et al), go to federal court within the U. S. and have all the constitutional protections of a U. S. citizen (Abdulmutallab) , or be killed in a drone attack in a foreign land (al-Awlaki). All three examples essentially were involved in the same operations against the United States. Unclear? You bet. Also, it is amazing to me that Congress still affords the executive branch enormous authorities 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 Executive branch tremendous authority to conduct military operations against Al Qaeda and its associates -- anywhere, anyplace, anytime.
Violation of International law: 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 drones attacks in Pakistan and Yemen (nations we are not at war with) seem to violate this provision and thus, some scholars have declared the attacks to be clear
violations of public 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 the U. S. by al-Qaeda, we need to be able to respond to remove the threat. [This authority for self-defense is provided (and cited in the memo above) in Article 51 of the UN Charter]. Certainly, the President needs that legal authority.
Slippery slope: These drones should never be used for these purposes within the continental United States. Military operations of this nature should be reserved for actions outside our borders. Their employment against ordinary U. S. citizens, within the United States, would seem a far stretch. But it is critical that is made clear in both
legal memorandum and by senior leaders. Most citizens do not want these operations being carried out within the continental U.S. Domestic operations are best supported by the police and FBI.
Thus, the memos released and/or leaked this week display a sense 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
Glenn Sulmasy is a law professor at the U. S. Coast Guard Academy 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 herein are his own. Twitter @glennsulmasyThe views expressed in this blog are those of the authors and do not necessarily represent the views of the Center for National Policy.
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