Posted: May 23, 2013 | Tags: drones
President Obama has pledged to increase accountability for the administration’s controversial drone program in a speech today at the National Defense University. The administration has used the program in the killing of thousands of suspected terrorists overseas, including four American citizens.
The move is in response to growing public unease on both sides of the aisle surrounding the administration’s use of drones, and recent criticisms by the state department’s former legal adviser, Harold Koh. In a speech May 7 at Oxford University, Koh asserted that the administration’s lack of transparency regarding drone use has led to public misinformation and disillusionment, and called on the president to release its full legal justification for the extra-judicial killing of American citizens abroad.
In a recent panel at the National Press Club, legal and policy experts discussed issues underpinning the drone program. Panelists expressed a need for greater accountability for the executive surrounding the use of drones.
“This is a program which seems to be run almost entirely in the executive branch without being subject to any legal standards that I’m aware of, or as far as we know at this point, any type of internal review process," said Michael Fitts, dean of the University of Pennsylvania Law School.
Although assassinations have been officially banned as a tool of U.S. foreign policy, the executive branch can carry out targeted killings without trial if an individual can be classified as a combatant. After the 9/11 terrorist attacks, Congress authorized the use of “appropriate and necessary force” against members of al-Qaida, the Taliban and “associated forces". But panelists said that international law provides little guidance on who qualifies as an associated force.
The legal difficulty in drone warfare arises in how to classify individuals as combatants, the panelists added. In justifying both indefinite detentions and targeted killings, the Bush and Obama administrations classify al-Qaida operatives as “unlawful combatants," possessing neither the rights of private citizens nor combatants. Claire Finkelstein, a law professor at the University of Pennsylvania, said this gray area poses significant problems for government accountability.
“The trouble is that we have never gained clarity on the meaning of unlawful combatancy under the law," said Finkelstein. “The original authorization for the use of military force shortly after 9/11 does not define unlawful combatancy. It merely authorizes the president to use ‘all necessary and appropriate force' … but it does not tell us what exactly appropriate military force is.”
Apart from a few heavily redacted memos shown to the Senate Defense Committee, no one outside the administration has seen the legal policy governing the wars abroad. Even less is known about how the administration decides who to target, and what sort of oversight mechanisms are employed.
The administration places potential drone targets on an internal “Joint Prioritized Effects List," which is compiled through an undisclosed process within the administration. The administration also has not disclosed who puts this list together, or according to what criteria. In response to a legal challenge by the father of Anwar al-Awlaki, an American citizen killed in a drone strike in Yemen, a federal judge ruled that individuals do not have the authority to challenge this classification in a court of law, or know the details of why they are on the list.
Panelists argued that these areas of legal subjectivity place too much discretion in the hands of the executive, presenting serious challenges for civilian oversight of the military.
“You have broad discretion on the part of the executive branch to decide who is a combatant and who is a civilian, you have very extensive use of the classification privilege, which makes it impossible for the public to know [how the targeting list is created], and now you cannot challenge these issues in a court of law on the basis of constitutional rights. To many, this poses a serious problem for the rule of law," said Finkelstein.
In his speech today, the president made it clear that he considers individuals such as al-Awlaki to be an enemy combatant, regardless of his citizenship.
“When a U.S. citizen goes abroad to wage war against America — and is actively plotting to kill U.S. citizens — and when neither the United States nor our partners are in a position to capture him before he carries out a plot, his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a SWAT team," said Obama.
However, he did not offer clarification on many of the issues troubling legal scholars, such as the definition of an associated force or an unlawful combatant, nor did he give the public any information on how individuals end up on the list. He did announce the recent signing of a new legal framework governing the use of force against terrorists, but it appears the policy itself will remain classified.
Other panelists wondered whether legal clarification is enough, suggesting that expediency and political motivations may be the true drivers of policy in this case.
“We have this notion that the law guides everything, but, unfortunately, that’s not the case ….The reality is that the decision is fundamentally different because of the politics of it," said Peter Singer, a foreign-policy expert at the Brookings Institution. “What you see in a lot of [leaked documents] is civilian general counsels within civilian agencies trying to come up with legal justifications for what policymakers have already determined they want to happen.”
Singer asserted that actors in the political sphere should focus less on the inherent validity of drone warfare and more on how the U.S. can develop effective civilian oversight. The president echoed this sentiment in his speech Thursday, and pledged to work with Congress to explore options for greater accountability.