By Other Means
10 Ways to Fix the Drone War
Obama's targeted-killing policy is a mess. Here's what he can do about it.
How could I have missed this! On March 23, the Drone Report website called me one of the "top ten leading voices in drone media." So, okay: I didn’t know there was a "drone media," and I’m not entirely sure being a member of the "drone media" is a compliment. But assuming it is, I am determined to live up to the honor.
To that end, I’m soliciting your help, dear readers. Regular readers of my column know that I do indeed drone on about you-know-whats. I have written about what’s not wrong with drones, about the ways in which drones lower the perceived costs of using lethal cross-border force, about the legal indeterminacy surrounding targeting decisions, about the administration’s legal justifications for killing Americans overseas, about the reasons Congress should not expand the Authorization for Use of Military Force, and about the costs of moving large swathes of U.S. foreign policy into the covert world. I have even written about my own growing drone armada.
Although I’ve raised a lot of questions and leveled a lot of criticisms, I’m feeling a little low on solutions. So help me out: Below, I’ve listed 10 things Congress and/or the president could do to ensure that U.S. targeted killings comport with rule of law norms. I take no credit (or blame!) for these ideas, none of which is original to me. (Some sources of these suggestions include Human Rights First, the Council on Foreign Relations, Lawfare, Human Rights Watch, and numerous conversations I’ve had with colleagues and friends.) But I am sure the list of ideas below is neither perfect nor complete.
Readers, please comment on these ideas (and others not listed), either in the comment section or by sending me an email. Are these good ideas? Stupid ones? Feasible or unfeasible? Do they need to be tweaked? How? What should be cut, and what’s missing?
If you help me out, you will become an honorary member of the Drone Media. Make your mom proud!
10 Ideas for Ensuring Oversight, Transparency, Accountability, and the Rule of Law in U.S. Targeted Killing Policy
1. Congress should encourage administration transparency and public debate by continuing to hold hearings on drone strikes, targeted killing policy, and its relationship to and impact on broader U.S. counterterrorism, national security, and foreign policy goals. Congress should also consider hearings on the longer-term challenge of adapting the law of war and law of self-defense to 21st century threats.
2. Congress should also encourage administration transparency by imposing reporting requirements. Congress could require that the executive branch provide thorough reports on any uses of force not expressly authorized by Congress, and that such reports contain both classified sections and unclassified sections in which the administration provides a legal and policy analysis of any use of force in self-defense or other uses of force outside traditional battlefields.
3. Congress should consider creating a judicial mechanism, perhaps similar to the existing Foreign Intelligence Surveillance Court, to authorize and review the legality of targeted killings outside of traditional battlefields. While the administration argues that such targeting decisions present a non-justiciable political question because of the president’s commander-in-chief authority, the use of military force outside of traditional battlefields and against geographically dispersed non-state actors straddles the lines between war and law enforcement. While the president must clearly be granted substantial discretion in the context of armed conflicts, the applicability of the law of armed conflict to a particular situation requires that the law be interpreted and applied to a particular factual situation, and this is squarely the type of inquiry the judiciary is bested suited to making.
Of note, the Israeli Supreme Court addressed the issue of targeted killing in a 2006 decision and determined that while the conflict between Israel and Palestinian terrorist organizations was an international armed conflict, individual terrorists were civilians who become targetable by virtue (and only by virtue) of their direct participation in hostilities. The court also noted that international law requires independent investigations when civilians are targeted because of their suspected participation in hostilities. The Israeli Supreme Court roundly rejected the view that targeted killing presents a non-justiciable issue, and insisted that the legality of each targeted killing decision must be individually considered in light of domestic and international legal requirements. While specific judicial review mechanisms in the United States might reasonably be expected to vary from Israel’s, the Israeli experience strongly suggests that there is no inherent reason judicial review of targeted killings could not occur.
4. Congress should consider repealing the 2001 Authorization for Use of Military Force. The Obama administration’s domestic legal justification for most drone strikes relies on the AUMF, which it interprets to authorize the use of force not only against those individuals and organizations with some real connection to the 9/11 attacks, but also against all "associates" of al Qaeda. This infinitely flexible interpretation of the AUMF has lowered the threshold for using force. Repealing the AUMF would not deprive the president of the ability to use force if necessary to prevent or respond to a serious armed attack: The president would retain his existing discretionary power, as chief executive and commander in chief, to protect the nation in emergencies. Repealing the 2011 AUMF would, however, likely reduce the frequency with which the president resorts to targeted killings.
5. The Constitution gives Congress the power to "define and punish offenses against the law of nations." Without in any way tying the president
‘s hands, Congress can pass a resolution clarifying that the international law of self-defense requires a rigorous imminence, necessity, and proportionality analysis, and that the use of cross-border military force should be reserved for situations in which there is concrete evidence of grave threats that cannot be addressed through other means.
6. Congress and/or the executive branch should create a non-partisan blue-ribbon commission made up of senior experts on international law, national security, human rights, foreign policy, and counterterrorism. Commission members should have or receive the necessary clearances to review intelligence reports and conduct a thorough policy review of past and current targeted killing policy, evaluating the risk of setting international precedents, the impact of U.S. targeted killing policy on allies, and the impact on broader U.S. counterterrorism goals. In the absence of a judicial review mechanism, the commission might also be tasked with reviewing particular strikes to determine whether any errors or abuses have taken place. The commission should produce a public, unclassified report, as well as a classified report made available to executive branch and congressional officials. The report should contain detailed recommendations, including, if applicable, recommendations for changes in law and policy and recommendations for further action of any sort, including, potentially, compensation for civilians harmed by U.S. drone strikes. The unclassified report should contain as few redactions as possible.
7. The president should publicly acknowledge all targeted killings outside traditional battlefields within a reasonable time period, identifying those targeted, laying out the legal factual basis for the decision to target, and identifying, to the best of available knowledge, death, property damage, and injury resulting from the strike(s).
8. The president should release unclassified versions of all legal memoranda relating to targeted killing policy. In particular, U.S. citizens have a right to understand the government’s views on the legality of targeting U.S. citizens.
9. The president should also provide the public with information about the process through which targeting decisions outside traditional battlefields are made, the chain of command for such decisions, and internal procedures designed to prevent civilian casualties.
10. The administration should convene, through appropriate formal and Track II diplomatic channels, an international dialogue on norms governing the use of drone technologies and targeted killings. The goal should be to develop consensus on the legal principles applicable to targeted killing outside a state’s territory, including those relating to sovereignty, proportionality, and distinction, and on appropriate procedural safeguards to prevent and redress error and abuse.