The Continuing Saga of Drone Warfare

If you recall, in March, AG Holder justified the use of drones in “targeted killings” (see related post here). The comments were of interest, in part, because a drone had been used recently to kill Anwar al-Awlaki, a US citizen, in Yemen and in part because Congress was authorizing the expanded use of drones domestically (see related post here). As Holder explained at the time, the decision to target a US citizen would not be subject to judicial review. There would, however, be some guarantee of “due process,” although little was said as to what that process would entail. Who needs details when we have Mr. Holder’s word:

Any decision to use lethal force against a United States citizen – even one intent on murdering Americans and who has become an operational leader of al-Qaeda in a foreign land – is among the gravest that government leaders can face. The American people can be – and deserve to be – assured that actions taken in their defense are consistent with their values and their laws. So, although I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly.

Now it has been revealed that the administration has authorized the expanded use of drones in Yemen. The CIA and the Joint Special Operations Command will be allowed to use drones for so-called “signature strikes.” That is, targets are identified based on a variety of intelligence without actually knowing the identify of the targets themselves.  As the Washington Post reports:

The expanded authority will allow the CIA and JSOC to fire on targets based solely on their intelligence “signatures” — patterns of behavior that are detected through signals intercepts, human sources and aerial surveillance, and that indicate the presence of an important operative or a plot against U.S. interests.

Until now, the administration had allowed strikes only against known terrorist leaders who appear on secret CIA and JSOC target lists and whose location can be confirmed.

If we don’t know the identify of the targets—they may or may not be US citizens–I am assuming that this will not create any problems for AG Holder’s guarantees of due process.

Even if we could accept the guarantee of due process, there is another problem—the lack of congressional authorization. As Bruce Ackerman noted last week before the policy change, the authorization is questionable:

Just days after the Sept. 11, 2001, attacks, Congress authorized the use of force against groups and countries that had supported the terrorist strikes on the United States. But lawmakers did not give President George W. Bush everything he wanted. When the White House first requested congressional support, the president demanded an open-ended military authority “to deter and preempt any future acts of terrorism or aggression against the United States.” … The effect was to require the president to return to Congress, and the American people, for another round of express support for military campaigns against other terrorist threats.

In Ackerman’s judgment, the policy change (then being contemplated) was well outside of congressional authorization. Ackerman offered the President some advice:

The president should not try to sleep-walk the United States into a permanent state of war by pretending that Congress has given him authority that Bush clearly failed to obtain at the height of the panic after Sept. 11.

Apparently, the advice was rejected and President Obama has assumed powers that even his predecessor could not exercise.