In his speech on drones and the War on Terror today President Obama made many valid points. But he also continued to elide some key issues. On the plus side, Obama correctly emphasized that the use of drones against terrorists is not inherently illegal nor immoral, that drones are often more discriminating and less likely to inflict civilian casualties than other military tactics, and that US citizens can be legitimate targets when they become enemy combatants.
Unfortunately, Obama also continued to dance around the more problematic aspects of his drone policy: who decides whether a particular individual being considered as a potential target is really a member of Al Qaeda and how much evidence is needed to back up such a determination. I emphasized these issues in my recent Senate Judiciary Subcommittee testimony on drones and here. Here are the most relevant parts of Obama’s speech on these questions:
In the Afghan war theater, we must — and will — continue to support our troops until the transition is complete at the end of 2014. And that means we will continue to take strikes against high value al Qaeda targets, but also against forces that are massing to support attacks on coalition forces. But by the end of 2014, we will no longer have the same need for force protection, and the progress we’ve made against core al Qaeda will reduce the need for unmanned strikes.
Beyond the Afghan theater, we only target al Qaeda and its associated forces. And even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute. America cannot take strikes wherever we choose; our actions are bound by consultations with partners, and respect for state sovereignty.
America does not take strikes to punish individuals; we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.
All of the above strikes me as entirely defensible so far as it goes. But it leaves unanswered the crucial question of how we determine that a given individual really is a member of “al Qaeda and its associated forces.” It also ignores the issue of how we decide which groups qualify as associated forces of al Qaeda – another difficult definitional issue that I noted in my testimony. The 2001 Authorization for the Use of Military Force that constitutes the legal basis for the War on Terror only authorizes military action against “those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” North Africa and the Middle East are full of Islamist groups whose ideology is in at least some ways similar to that of al Qaeda and who support its goals to at least some degree. We are not and should not be at war with all of them. At the same time, the president is surely right that our military efforts cannot be limited to the narrowest possible definition of al Qaeda.
For reasons outlined by the president and co-blogger Ken Anderson, among others, I think it would be a serious mistake to abjure the use of drone strikes entirely. At the same time, we cannot allow boundless executive discretion in this area either. There must be tighter and clearer legal limits on presidential power in this field.
As President Obama himself puts it, there should be “strong oversight of all lethal action.” But it is not yet clear exactly what kinds of measures Obama has in mind or would accept. In a later part of the speech, Obama lists several possibilities, but does not actually endorse any of them:
Going forward, I’ve asked my administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory, but poses difficulties in practice. For example, the establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority. Another idea that’s been suggested — the establishment of an independent oversight board in the executive branch — avoids those problems, but may introduce a layer of bureaucracy into national security decision-making, without inspiring additional public confidence in the process. But despite these challenges, I look forward to actively engaging Congress to explore these and other options for increased oversight.
It is certainly true that no oversight system is going to be perfect. But unconstrained executive discretion also poses severe problems. In the long run, moreover, such unconstrained power is likely to undermine the legitimacy of the use of drones altogether, just as the Bush administration’s advocacy of unlimited executive power undermined confidence in its detention and interrogation policies.