Restoring Checks and Balances to the Drone Warfare Program


I am very pleased to report that I have an article on the website of the Atlantic Council regarding the subject. A snippet:

The Department of Justice has recently released a white paper detailing what it believes to be the scope of the president’s authority to kill Americans suspected of being members of al Qaeda—killings that are usually conducted via drones. The white paper argues that the killing of such suspects does not violate due process or the Fourth Amendment, claims that a lethal operation against such suspects does not violate the tenets of Executive Order 12333 (which among other things, prohibits assassinations), and states that the power to kill such suspects can take place “away from the zone of active hostilities.” Additionally, the president can authorize legal force against an American citizen located in a foreign country that either gives its consent to a legal operation, or “after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.” A suspected American terrorist can be killed outside of the United States if the suspect “poses an imminent threat of violent attack against the United States,” but this “does not require the United States to have clear evidence that a specific attack on U.S. persons or interests will take place in the near future.”

The white paper has prompted spirited reaction. Indiana University law professor Gerald Magliocca argues that it is too easy to authorize a lethal drone operation because it is not clear who qualifies as “an informed high-level official” for the purposes of determining that “a targeted individual poses an imminent threat of violent attack against the United States,” and because the language of the white paper might suggest that only one such “high-level official” is needed to issue such a determination. George Washington University law professor Jeffrey Rosen claims that the administration’s arguments do not pass constitutional muster. Harvard law professor Jack Goldsmith states that while “[t]here is little of substance that is new in the White Paper,” the white paper “does reveal problems in the administration’s political and legal strategy for conducting drone strikes, especially against American citizens,” including “excessive secrecy.” Goldsmith also argues that we need “a new framework statute” that would “define the scope of the new war, the authorities and limitations on presidential power, and forms of review of the president’s actions.” Goldsmith’s call for a new framework is echoed by former secretary of defense Robert Gates, who has argued for the creation of a “third group” that would inform Congress and intelligence communities about drone strikes, thus creating more oversight for the process.

Click for more regarding what shape I think such oversight should take.

There is 1 comment.

  1. Thatcher

    What strikes me as odd is that for a president who seems to barely take a breath without congratulating himself or his administration for everything good that happens (or “good”, depending on the point of view), you don’t hear a lot of chest-thumping about the drone program. You hear a lot about (or heard a lot about ) having AQ “on the run”, at least until they were not on the run in Benghazi, but you don’t hear a lot about targeted drone strikes themselves.

    Which, for someone like Barry, means he might be just a little bit ashamed of what he’s doing there – because he likes it. I think that’s why he doesn’t tout his kill list, nor his pondering over the details of those whose lights he’s going to turn out with a scratch of his pen. I can imagine what a Senator Barry might have said about the increased drone strikes in, say, a McCain presidency, or a Romney presidency, and I think it’s safe to assume he wouldn’t be supporting a Romney if Romney was doing exactly what Barry is now: Playing God, a little bit.

    • #1
    • February 15, 2013 at 7:02 am
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