The Volokh Conspiracy

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.

The credibility of NGOs like Human Rights Watch depends on their being above and apart from the conflicts they monitor – to not take sides. Human Rights Watch has been criticized by many, including its founder, for giving up all objectivity an adopting an anti-Israel campaign.

Their grudge against Israel has been clear for a while, and David Bernstein has written about it frequently here.

Now, we find evidence of direct personal animus. A news story reveals a private Facebook group whose members include a medley European journalists, NGO officials, and far-left activists. Recently the group turned to discussing an Israeli government report that the famous killing of a Palestinian boy at the start of the Second Intifida was in fact staged. Not only was he not shot by Israel, as much prior evidence suggested, he appears not to have been killed at all. (It would not be the last time Palestinians elaborately staged deaths for PR purposes.)

The issue is not the IDF report, but the comments made about it by Peter Bouckaert, HRW’s Emergencies Director (responsible for civilians in wartime, according to his twitter page). He wrote: “Typical IDF lies. As usual, it takes them a long time to really build up the falsehood.”

He goes on the complain that the New York Times coverage of the Israeli report will be used by supporters of Israel.

I previously criticized HRW for releasing reports on alleged Israeli crimes without waiting for the IDF’s comments - now we know: why wait for a “typical lies” that just build up the more time they get? Seriously, HRW should reveal what reports the “emergencies director” was involved in writing.

Academic writing on human rights and international law often treats groups like HRW as custodians of the truth, and accepts their claims without much further scrutiny. That practice is methodologically unsound.

UPDATE: Buockaert is apparently responsible for the HRW report on the 2nd Lebanon War, entitled “Why the Died,” which accuses Israel of war crimes largely based on relies on (favorable) credibility judgements regarding Lebanese testimony about whether certain targets were Hezbollah sites. The report also admits significant errors in earlier report (that doesn’t make them lies!).

Just in time for President Obama’s big speech Thursday at the National Defense University on counterterrorism policy and strategy, Commentary Magazine has made available early my June cover article, “The Case for Drones.”  (Available free and not behind the subscriber wall.)  It’s a long essay arguing that drones are both effective and ethical, and addressing a number of the objections to each of those propositions.

The article has a particular audience in mind. It is aimed at conservatives and Republican members of Congress especially, to remind them that their sometimes knee-jerk attacks on the “imperial” Obama presidency risks one major piece of national security that the Obama administration has got well and truly right.  There’s no lack of imperial presidency, abuse of power material for conservatives to work with- pick your issue this week – but this particular issue is one where, if conservatives look down the road, they ought to see that any president, Republican or Democrat, will need to have available the national security tools of drone warfare and national security.  It would be a remarkably foolish thing if, by inattention or inappropriate and merely reflexive attacks on the Obama administration’s drone policy, Republicans in Congress wound up permitting drone warfare to be made politically, morally, or legally illegitimate – just as a future Republican president enters office and discovers that, yes, there are terrorist threats best addressed by drones.  Congressional Republicans, in the midst of the many abuse of power hearings, ought nonetheless to be scheduling hearings to invite current and former administration officials to reiterate their legal views on drone warfare, with the express purpose of standing with the President on this tool of national security and its permanent, legal, and legitimate place.

Commentary is a conservative magazine, obviously, and I’m writing there as a conservative for a conservative audience.  The framing above is political.  But there’s a much more neutral, less political way of framing the issue that ought equally to appeal to the broad national security center across both parties: the core elements of US counterterrorism policy, including detention policy and the whole range of what I’ve sometimes called “counterterrorism-on-offense” (including drones), needs to be put on a much firmer and more permanent basis.

Call this “institutional settlement” in counterterrorism strategy.  We need an institutional settlement around counterterrorism – we have a lot of policies that work pretty well, but they rely largely on executive branch discretion.  There are substantive reforms that need to be made in order to institutionalize counterterrorism policies, and they depend upon the two political branches coming together to give them legitimacy.  In my view there is broad agreement in the center as to these policies in substance; what they lack is a political foundation in actual legislation.  (But giving important credit, let’s note that Rep. Mac Thornberry (R-TX) has just offered legislation that would begin to address legislatively the accountability and oversight issues created by the growth of military special operations; on my first read, it looks like a very good start.)

The fault lies both with the administration and with Congress, but one way or another we today owe it to whoever is responsible for national security tomorrow to make sure that there is a stable, functional, institutionally legitimate framework going forward.  It won’t ever satisfy certain constituencies ever – a big chunk of the international community, Obama’s leftwing, or the Pauline wing of the Republican Party, which are simply at odds with the substance – but it is the pretty clear view of the broad center of both voters and this country’s leadership.  That said, precisely the fact that in the political center most everybody’s on board with the substance means that it’s hard to generate energy to give it the process, oversight, and accountability legs it needs to make its legitimacy permanent.  But institutional settlement, stability of the framework over time and administrations of different parties, matters hugely.

Certainly I hope the President’s speech tomorrow reaches out to address the needs of institutional settlement.  And I very much hope that Congress, and Congressional Republicans especially, take up the opportunity to find ways to engage legislatively – legislating as if there might be both Republicans and Democrats in the presidency.

(And thanks to John Podhoretz, editor of Commentary, for getting this June article up early in advance of the President’s speech, and for making it available free to non-subscribers.  Plus, for anyone interested, at this moment it looks as though I’ll be part of a roundtable commenting on the speech on To the Point on NPR tomorrow afternoon.)

In a thoughtful post below, Orin suggests that we don’t know enough about the federal government’s seizure of the AP’s records.  As Orin notes, the Justice Department has special rules for this sort of thing.  Yet there are reasons to doubt whether the government followed these rules.  Among other things, the government is required to take “ all reasonable steps to attempt to obtain the information through alternative sources or means,” including attempts at negotiations with the media source before any request for a subpoena is made, unless the Assistant Attorney General concludes such negotiations would pose a “substantial threat” to the investigation.

This is hardly the first time the federal government has investigated the leak of national security information in the past dozen years, and yet this is the first time a seizure of this scope has been reported.  The AP’s letter of protest certainly suggests this was an unprecedented seizure with serious implications for the AP’s newsgathering operations across a range of areas, and that the requisite efforts to obtain the necessary  information through other means were not undertaken.

Perhaps the AP is wrong on these points, and perhaps DoJ did everything that is required.  If so, there might not be cause for outrage.  But that would hardly make this a “non-story.”

UPDATE: To place this in further context, it’s worth remembering the FBI has a history of obtaining phone records without following the relevant guidelines.

SECOND UPDATE: Another reason I don’t believe this is a “non-story” is because seizures of this sort have potentially significant implications for newsgathering organizations. Further, insofar as the relevant guidelines vest the Justice Department with substantial discretion, how such discretion is used is a matter of significant import. I agree with Orin that it’s possible that the Justice Department acted properly here (though I suspect I’m more inclined to see this particular seizure as overbroad), but that does not mean that the threat of such seizures does not have the potential to chill investigative journalism. In my view, the federal government should, insofar as is possible, focus more on the leakers than on those who receive the leaks.

The AP reports:

The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

The Justice Department notified the AP on Friday.  More reporting from The Hill and ThinkProgress explains why DoJ wanted these records.

UPDATE: More from BLT here. It’s important to note that this is not the first time the federal government has obtained phone records in this manner.  It is, however, one of the few (if only times) the seizing of such records has become public.

UPDATE: And be sure to see Orin’s post above.

Rep. Mac Thornberry (R-Texas), member of the US House of Representatives Armed Services Committee, plans to introduce a bill that would increase Congressional oversight over kill-capture operations conducted outside of Afghanistan by the US military.  University of Texas law professor Robert Chesney discusses the proposed legislation over at Lawfare, and gives a section by section commentary.  Whether this is an important step or not depends on one’s starting point, of course; I agree with Chesney that it is a big deal and a welcome step to regularizing . (Though if one’s view is that all these operations are unlawful, or that  they require judicial oversight, or something else, whether from the Left of the Democratic Party or what we might call the Pauline wing of the Republican Party, then you won’t be much moved.)

Seen within the framework of US law and oversight of overseas use of force operations, this is an important step.  A couple of observations.  First, this (soon-to-be) proposed legislation is with respect to operations conducted by the US military under US Code Title 10; it does not cover CIA activities, which are already subject to oversight and reporting under US Code Title 50.  Second, it covers US military operations with respect to the lines of oversight running back to the Armed Services committees; essentially it increases the role of the Armed Services committees in oversight of US military operations in what it defines as “Sensitive Military Operations” – which in practice means clandestine Joint Special Operations Command (JSOC) activities.  It does not alter the existing oversight processes of Congressional intelligence committees governing covert action as defined in US Code Title 50, but extends and increases oversight over military operations.  Why this focus on military operations conducted by JSOC?

Counterintuitive as many might find it, the CIA is subject to far greater oversight, and at a far higher level of government, in its conduct of Title 50 covert activities than the US military is in its conduct of armed operations under Title 10.  There are good reasons why the military is not subject to direct oversight in essentially tactical decision-making in its traditional military activities once a decision has been made to commit to the use of force.  These decisions have long been understood to be within the discretion and responsibility of commanders who have the expertise to carry them out.  Oversight through the Armed Services committees is robust, including its closed sessions, but is not considered the same as that which Title 50 requires for covert activities because the kinds of activities traditionally conceived – conventional conflict versus covert activities – were different.  However, the expansion of the US military into clandestine activities – which might or might not meet the legal definition of “covert” under Title 50 and so trigger those oversight functions – has raised new questions as to whether the Armed Services committees’ oversight, traditionally conceived for conventional conflicts, keeps Congress sufficiently informed and permits sufficiently timely oversight in the case of activities carried out by JSOC.

[Added: Chesney has amended his original post to emphasize that in practice JSOC operations receive an op-by-op review by the Armed Services committees; he points to this Craig Whitlock article in the Washington Post.  I am quite prepared to believe this, but agree with Bobby that the formalization of this process in law remains just as important as ever. The problem of "institutional settlement" in US counterterrorism policy, discussed at the bottom of this post, is in large part taking jury-rigged and ad hoc processes, in order to both make them permanent features of the national security toolkit and to regularize and institutionalize them.]

Whether there is sufficient oversight depends partly on whether you think that oversight by the Intelligence committees is sufficient, or whether, in the case of US military operations through JSOC, the Armed Services committees ought to be more involved irrespective of what happens in the Intelligence committees.  My strong impression is that members of the Armed Services committees, on both sides of the aisle, believe that there needs to be a stronger role for those committees; this bill is partly a response to that concern.  This is reinforced by a further feature of the existing legislative structure for oversight.  Title 50 defines covert activities, but then exempts from the definition “traditional” military activities as well as activities done in routine support of others’ (e.g., CIA) activities.

This suggests – at least as a structural possibility – that important JSOC operations might be carried out on an internal legal view that they do not constitute “covert” activities because they are “traditional” military activities, and therefore do not trigger Title 50 oversight.  As military activities, oversight would take place through the Armed Services committees, but only in the relatively limited way that now exists.  One result of Rep. Thornberry’s proposed reforms would be essentially to close that structural gap. It does so by requiring oversight through the Armed Services committees for any “Sensitive Military Operation” carried out by the military, without regard to any other obligations under Title 50 covert activities.  Among its specifics, it requires reporting on the process and criteria for targeting decisions – the so-called “kill list” committees and “disposition matrix.”

This seems to me a very good idea.  I need to think through other parts of the proposed legislation to be sure I understand the implications, but as a general proposition, I’ve long believed that “institutional settlement” of the permanent structure of US “counterterrorism-on-offense,” as I’ve sometimes termed it, requires important reforms and updating of the legislative structure of oversight in order to take account of the realities of targeted killing, drone warfare, and other forms of highly targeted use of force, as well as the expansion of JSOC and its capabilities.  This proposed legislation is a first, and welcome, step toward getting Congress directly involved in that reform process.  Congress needs to be directly involved in updating the machinery of covert and clandestine operations – more precisely, in delineating the range of activities that involve discrete, intelligence-driven uses of force that carry hostilities directly to terrorism targets – and the oversight processes.  The administration ought to work with Congress to do that.  It is an area that – unlike many others, such as Guantanamo, what happened and why at Benghazi, etc. – ought to permit for a lot of bipartisan agreement.  Here is Chesney’s bottom line:

What’s not to like?  I have long had concerns with respect to whether there was adequate operation-by-operation transparency vis-à-vis Congress when it came to JSOC direct action outside of Afghanistan.  This legislation speaks directly and clearly to that concern, while also moving the ball forward at least a bit in terms of forcing the executive branch to explain to the armed services committees the legal and policy elements that govern its decisions regarding the designation of individuals or groups as objects of direct action.  The Obama administration should get behind this, not resist it—especially if it is inclined to shift some or all of the CIA’s kinetic portfolio over to JSOC.

This is not, as regular readers will know, an unstated attempt on my part to kill off these programs by process reforms.  It is instead endorsement of attempts to “discipline” them – as Harold Koh put it in his Oxford Union speech a few days ago – and put them on a footing of institutional permanence, so that these tools join the permanent repertoire of national security available to presidents into the future.  That requires a process of oversight by the political branches more attuned to the realities of how covert and clandestine uses of force are likely to unfold than existing statutes do today.  As it happens, Benjamin Wittes and I are co-authoring a new book that addresses the terms of institutional settlement in counterterrorism, based in an analysis and reconstruction of speeches by senior Obama officials and agency general counsels on national security (we’re putting it out chapter by chapter online, and Hoover Press will put out a hardback once completed).

My written testimony on the use of drones for targeted killing in the War on Terror submitted for yesterday’s hearing the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights is now available here. You can view the video of the oral testimony (both mine and the other witnesses) here. I will post links to the other witnesses’ written testimony when and if they become available.

UPDATE: The written testimony of all the witnesses is now available here (see list of their names off to the right).

UPDATE #2: A written statement submitted for the hearing by Senator Rand Paul is available here.

A video of my and other witnesses’ oral testimony on the use of drones for targeted killing in the War Terror, before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights is now available here (just click on “webcast”). It was interesting for me to see that there was a broad consensus among the academic and ex-military witnesses on two key points: that the use of drones for targeted killing of terrorists is not inherently illegal or immoral, and that we need stronger safeguards to ensure that we are limiting drone strikes to legitimate military targets. It seems to me that many of the senators who asked questions – both Democrats and Republicans – were also sympathetic on these points. Whether this will lead to appropriate reforms remains to be seen.

I will try to post my written testimony by tomorrow.

UPDATE: You can also watch the hearing at the C-SPAN site here, though there are a few technical problems in that video that I noticed.

UPDATE #2: I do want to clarify one unfortunately ambiguous aspect of an answer I gave to a question by Sen. Michael Lee around 2:07:00 of the video at the Subcommittee website. I mentioned there that the Israeli government government has a judicial review mechanism for considering the legality of targeted killing decisions. I should have made clear that the Israeli system, as outlined in the Israeli High Court of Justice’s 2006 decision on the legality of targeted killing, establishes after-the-fact judicial review rather than judicial review in advance, of the kind contemplated in proposals to create a FISA-like court to review targeting decisions aimed at US citizens in advance. Both Sen. Lee’s question and the part of my answer that mentions Israel were ambiguous on the issue of the timing of judicial review. So I wanted to clarify that point here. As I noted later in my testimony, we cannot and should not simply copy all aspects of Israeli policy in this area, since their strategic situation and political system differ from ours. But we nonetheless should try to learn from their experience.

For those who may be interested, on Tuesday at 4 PM, I will be testifying at a hearing on “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing,” held by the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights. My testimony will focus primarily on the issues addressed in this post. You should be able to watch the hearing on C-SPAN and possibly at the Subcommittee’s website linked above.

I was only very recently invited to participate in this hearing, and I am not sure who all the other witnesses will be. But I do know that Prof. Rosa Brooks of Georgetown will be one of them, and that Senator Rand Paul is going to make a statement before the Subcommittee at the start of the hearing.

UPDATE: The complete witness list is now available here. It is as follows:

General James Cartwright
United States Marine Corp (Ret.)
Washington, DC

Farea Al-Muslimi
Sana’a, Yemen

Peter Bergen
Director
National Security Studies Program
New America Foundation
Washington, DC

Rosa Brooks
Professor of Law
Georgetown University Law Center
Washington, DC

Colonel Martha McSally
United States Air Force (Ret.)
Tucson, AZ

Ilya Somin
Professor of Law
George Mason University School of Law
Arlington, VA

Two Chechen Islamist terrorists have succeeded in turning Boston, America’s cradle of liberty, into a prison. Just when we had gotten used to obscene lines and searches at airports as the price we pay for safety, the lockdown of Boston illustrates the extent to which civil liberties are at stake in the war on terror. Since 9/11, there has been an ongoing debate about the protection of the rights of suspected terrorists. But today’s events show that its is not just the civil liberties of terrorists at stake, but also those of millions of innocent civilians.

If Boston is “closed” for just six hours, that is 175000 man days of functional house arrest; roughly as many as would be required to keep everyone in Guantanamo confined for a year or two. No doubt the police overreaction will be severely criticized in coming days, but largely on policy grounds, not civil rights grounds.

Yet such freakouts are nothing compared to what is in store if the the Marathon bombing means that Chechen jihadis has come to U.S. shores. The Chechens mounted one of the most vicious terror campaigns ever against Russia in the 1990s, blowing up apartment buildings, and launching massive attacks on theaters and even schools. They are known as among the most violent and dedicated terrorists in the world. They can be found fighting in Libya, Syria and every other major jihadi campaign. Though usually they have to sneak into the target countries, rather than coming on a visa as the Boston bombers apparently did.)

Russia only succeeded in suprresing the Chechen Islamists with extremely brutal tactics that would never find support in the U.S – essentially leveling the Chechen capital. Yet dealing with such a threat would also be impossible with a politically correct approach to counter-terror that, for example, turns away from talking frankly about the terrorists profiles and motives.

This Wednesday, April 10, at 12 PM, I will be taking part in an event on the legal and policy issues surrounding the use of drones in the War on Terror, at George Mason University School of Law. I will be on a panel with my GMU colleagues Jeremy Rabkin and Nathan Sales. The event is sponsored by the GMU Muslim Students Association and by Students for Liberty. It will be held in Room 120.

The American Civil Liberties Union (ACLU) sued the Central Intelligence Agency (CIA) under the Freedom of Information Act (FOIA) seeking information about drone strikes.  The CIA filed a so-called “Glomar response,” refusing to confirm or deny the existence of material responsive to the ACLU’s request.  The ACLU then sued, and the district court granted summary judgment to the CIA.   Today, however, in ACLU v. CIA, the U.S. Court of Appeals for the D.C. circuit reversed, rejecting the CIA’s justification of its Glomar response. As the court explained:

The CIA has proffered no reason to believe that disclosing whether it has any documents at all about drone strikes will reveal whether the Agency itself — as opposed to some other U.S. entity such as the Defense Department — operates drones. There is no doubt, however, that such disclosure would reveal whether the Agency “at least has an intelligence interest in drone strikes.” . . . The question before us, then, is whether it is “logical or plausible,” . . . for the CIA to contend that it would reveal something not already officially acknowledged to say that the Agency “at least has an intelligence interest” in such strikes. Given the extent of the official statements on the subject, we conclude that the answer to that question is no. . . .

Given . . . official acknowledgments that the United States has participated in drone strikes, it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain to say that the Agency “at least has an intelligence interest” in such strikes. . . . The defendant is, after all, the Central Intelligence Agency. And it strains credulity to suggest that an agency charged with gathering intelligence affecting the national security does not have an “intelligence interest” in drone strikes, even if that agency does not operate the drones itself.

The case now goes back to the district court, which will consider whether the CIA may avail itself of any FOIA exemptions to refuse the ACLU’s information requests.

Last month, former acting Solicitor General Neal Katyal made the case for creating an executive branch court to oversee the use of drones for targeted killings.  In Katyal’s view, subjecting drone strikes to an Article III “drone court” would be a “mistake.”  Thus he endorsed an alternative oversight mechanism to be housed within the executive branch.

My friend and former colleague, Amos Guiora, takes a different view.  Perhaps due to his experience with the Israeli military, and judicial oversight of some Israeli military actions, he thinks  Article III drone courts would be just fine.  He makes the case in his paper, “Targeted Killing: When Proportionality Gets All Out of Proportion.”  In Amos’ view, the use of drones for targeted killing mut be constrained by clear criteria and subject to true judicial oversight — oversight that would make sure drone strikes are only used in a proportionate manner and would also minimize operational error.

The NYT has a very interesting story on the targeting of Anwar al-Awlaki for a drone strike.  Of particular interest is the story’s account of the efforts by academics-turned-government-lawyers to ensure that targeting al-Awlaki would be legal.  Here’s a taste:

David Barron and Martin Lederman had a problem. As lawyers in the Justice Department’s Office of Legal Counsel, it had fallen to them to declare whether deliberately killing Mr. Awlaki, despite his citizenship, would be lawful, assuming it was not feasible to capture him. The question raised a complex tangle of potential obstacles under both international and domestic law, and Mr. Awlaki might be located at any moment.

According to officials familiar with the deliberations, the lawyers threw themselves into the project and swiftly completed a short memorandum. It preliminarily concluded, based on the evidence available at the time, that Mr. Awlaki was a lawful target because he was participating in the war with Al Qaeda and also because he was a specific threat to the country. . . .

But as months passed, Mr. Barron and Mr. Lederman grew uneasy. They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas. In light of the gravity of the question and with more time, they began drafting a second, more comprehensive memo, expanding and refining their legal analysis and, in an unusual step, researching and citing dense thickets of intelligence reports supporting the premise that Mr. Awlaki was plotting attacks. . .

Due to return to academia in the fall of 2010, the two lawyers finished their second Awlaki memorandum, whose reasoning was widely approved by other administration lawyers, that summer. It had ballooned to about 63 pages but remained narrowly tailored to Mr. Awlaki’s circumstances, blessing lethal force against him without addressing whether it would also be permissible to kill citizens, like low-ranking members of Al Qaeda, in other situations.

Nearly three years later, a version of the legal analysis portions would become public in the “white paper,” which stripped out all references to Mr. Awlaki while retaining echoes, like its discussion of a generic “senior operational leader.” Divorced from its original context and misunderstood as a general statement about the scope and limits of the government’s authority to kill citizens, the free-floating reasoning would lead to widespread confusion.

Attorney General Eric Holder has sent the following response to Republican Senator Rand Paul’s question about when the president has the authority to use drones to target US citizens on American soil:

Dear Senator Paul:

It has come to my attention that you have now asked an additional question: “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” The answer to that question is no.

As I discussed in more detail here, the big issue with drone targeting is not that the Administration claims that it can target American citizens under some circumstances, but what exactly the limits on that power actually are.

Holder’s letter today is somewhat reassuring on that point, at least when it comes to to domestic targeting. But, with respect to international targeting, it still leaves open the key question of who determines whether a potential target is an Al Qaeda leader, and how much proof they have to have. On the domestic side, there might occasionally be ambiguity about what it means to be “engaged in combat,” though hopefully that won’t be a problem in most cases.