Forward: How President Obama Should Codify U.S. Drone Policy into Law

 by Jonathan Tkachuk

It’s true, different Al Qaida affiliates and extremist groups have emerged, from the Arabian Peninsula to Africa. The threat these groups pose is evolving. But to meet this threat, we don’t need to send tens of thousands of our sons and daughters abroad or occupy other nations…That’s why my administration has worked tirelessly to forge a durable legal and policy framework to guide our counter-terrorism effortsin the months ahead, I will continue to engage Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world. -President Barack Obama, State of the Union, February 12, 2013

Drone StrikesPresident Obama has an opportunity to formally place drone warfare squarely within the confines of the rule of law. To do so requires a commitment to not only keep Congress abreast of his counter-terrorist polices but to also press Congress to codify his internal policies into actual legislation. If he fails to pursue this, he will have unwittingly aided in the permanent perpetuation of the “war” he has fought hard to end: the now defunct “global war on terror.”

Unlike many civil libertarians, I was initially pleased to learn of the Obama Administration’s decision to have the Department of Justice publically release its “durable legal and policy framework” behind its drone warfare program. As one committed to not letting the perfect become the enemy of the good, I found the initial release heartening. The fact that the Administration was willing to subject its legal rationale to public, and hopefully Congressional, scrutiny was an act that anyone who values checks and balances in government should appreciate.

To be sure, the substance of the Administration’s legal rationale deserves all the scrutiny it has gotten up to this point.

Its language openly grants the executive branch the discretion to assassinate anyone, including U.S. citizens, overseas. Its supposed safeguards and process of review are confined to the internal workings of the executive branch making a mockery of our federal system of checks and balances. It openly reserves the right to operate in states that are “unwilling” to assist the U.S. in apprehending suspected individual terrorists—something that risks turning a given asymmetrical counter-terrorist operation into a full-blown interstate conflict (i.e. a real war with an actual state). Unbeknownst to most Americans, this last point serves to further weaken the foundations of the international system which would fuel instability around the globe.

What Should Be Done?

Given these flaws and the risks inherent in them, it behooves the Administration to press Congress for legislation that would place drone warfare under the rule of law by addressing two of the more practical problems that bedevil its usage. These are as follows: 1) defining Al-Qaeda and what constitutes affiliation with Al-Qaeda and 2) creating a legal mechanism, such as a special judicial court modeled off of the Foreign Intelligence Surveillance Act (FISA), which would pre-review and authorize or reject all covert drone strikes in regions that are not formal combat zones (defined as countries where U.S. military forces are not both on the ground and engaged in combat activities).

One of the biggest flaws in post 9/11 American foreign policy was the extent to which Congress deferred the definition of the “enemy” to the executive. Unfortunately for the country, this deference allowed the executive to expand the notion of the “enemy” to the point where it found itself waging wars of choice rather than one of necessity. In addition, the specter of the term “terrorist” being used against law abiding citizens with no affiliation with Al-Qaeda began to emerge. With no clear definition at hand, the executive branch was free, and in some sense still is, to wage permanent war against anyone it deems to be an “enemy” or a “terrorist.”

With respect to establishing a legal mechanism, one will recall FISA emerged as a compromise between Congress and the Executive branch. The nature of the compromise was more institutional than political: the FBI and CIA sought a way to conduct legal and legitimate surveillance operations on Americans without imperiling their Constitutional rights. Intelligence agencies not only had to obtain warrants to conduct wiretapping surveillance but were also held accountable for their actions by a FISA judge.

A FISA-like court for drone strikes would operate in much the same way. Before a lethal drone strike could be undertaken, the government would have to prove sufficient evidence attesting to the 1) imminence of the threat posed by the individual, 2) their association with Al-Qaeda and 3) infeasibility of capture either by the U.S. or by the host government. At present, this criterion is determined by, according to the white paper, “an informed high-level official of the U.S. government.”

Outsourcing this duty from the executive branch to the judiciary is critical for ensuring civil liberties are duly protected.

Some might argue that such legislation, were Congress to enact it, would greatly inhibit the executive branch’s ability to adapt to the complex security challenges it faces today. The charge, while understandable at a theoretical level, is absurd in reality.

No one can argue that U.S. foreign policy interventions, particularly that of the military variety, have suffered from too narrow an operational focus over the last twenty years. If anything, the executive branch has abused its operational flexibility (see Congressional reluctance for providing meaningful oversight), pursuing wars of choice at an alarming rate. Given this reality, and given the fact that this otherwise classified program will be turned over to the Pentagon over the coming years, it behooves Congress to ensure that the definition of “combat zone” is both regulated and subject to the rule of law. In doing so, Congress would be well within its Constitutional prerogative to ensure the executive branch does not trample civil liberties in the name of national security.

Conclusion

President Obama’s attempt to provide a legal framework that allows him to pro-actively protect the country, while preserving the rule of law, has been deficient. As in all other matters, the President needs to work with Congress. However, unlike all other matters, foreign affairs and national security provide outlets for the President to operate independently, both from Congress and as a matter of State. President Obama must resist this temptation and instead demand Congress live up to its Constitutional duties and codify his drone policy, along with the above mentioned safeguards, into law.

 

Jonathan Tkachuk received his M.A. in Diplomacy-Counterterrorism from Norwich University and his B.A. in Political Science from Rutgers University. An independent professional with foreign policy research experience, Jonathan resides in Northern Virginia. 

2 Comments

  1. How about giving veiwers the ability to print your article

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