Executive Use of Drone Strikes

Posted by: Matthew Schlabach, Savannah Schlick, Angelica Simpson, Joshua Spears, Miranda Stark, and Chase Turrentine

April 23, 2015

anwar-al-awlaki_2In recent years, Presidents of the United States, including most recently President Obama, have relied extensively on unmanned drone aircrafts to attack and kill those who they believe to be leaders of terrorist organizations throughout the world. Discussions in the media regarding targeted strikes against terrorists who are also American citizens – for example, Anwar Al-Awlaki, a known terrorist leader who was killed in Yemen on September 20, 2012 – raise the question of whether these attacks are even legal. This post explores the legality of drone strikes abroad, and the legality of drone strikes against terrorists who are also U.S. citizens.

Discussions about the legality of presidential military action stretch back to the construction of the nation itself. It was even a subject of debate among the Framers of the Constitution. They ultimately decided against giving Congress alone the power to “make war,” and chose to give Congress the narrower power to “declare” it. The Framers wanted the president to have the ability to repel sudden attacks without a formal declaration of war by Congress. It is worth noting at the outset that the president’s authority to repel sudden attacks might, by itself, justify drone strikes on those organizations that have committed terrorist attacks on the United States (e.g. Al Qaeda). But if the president does not have the constitutional authority to conduct drone strikes abroad in response to terrorist attacks at home, does the president have any authority to attack terrorists abroad without a formal declaration of war?

The United States has engaged in many conflicts with congressional approval, but without a formal declaration of war (for instance, the 1798 Quasi War with France, authorized by an Act of Congress). The president has very broad authority when acting with congressional approval, as Supreme Court Justice Jackson indicates in his famous concurrence in Youngstown Sheet Co. v. Sawyer. Thus, a formal declaration of war may not be necessary for the president to act when he has otherwise been given congressional approval to do so.

The president has also initiated military hostilities on many occasions without Congressional approval. Perhaps the most significant of these was the Korean War, “when President Truman, without prior authorization from Congress, deployed United States troops in a war that lasted for over three years and caused over 142,000 American casualties.” It has been said that longstanding presidential behavior, without congressional protest, implies congressional acquiescence to that behavior. One might argue that Congress has acquiesced to unilateral military action undertaken by the president, but for the fact that Congress has explicitly rejected that idea. In the aftermath of the Vietnam War, Congress acted to restrict the president’s ability to take unilateral military action by passing the War Powers Resolution.

The War Powers Resolution of 1973 was passed because of congressional concerns over the president’s use of American troops without the consent of Congress. Although President Nixon vetoed the Resolution, both houses of Congress successfully overrode the veto with a 2/3 majority in each house. The Resolution requires the president to report to Congress within 48 hours of committing US troops into armed hostilities. Additionally, the Resolution forbids military personnel from remaining in hostilities for longer than 60 days, including a 30 day withdrawal period, without seeking additional approval from Congress. The rationale of the Resolution is to balance the Art. I, §8, Cl. 11-16 powers of Congress to declare and raise money for war with Art. II, §2, Cl. 1 of the U.S. Constitution, delegating the authority of Commander and Chief of the Army and Navy to the president.

Article II, Section 2 of the Constitution states that the President of the United States “shall be commander in chief of the Army and Navy.” It also grants the president the power to make treaties with the advice and consent of the Senate. By comparison, Article I, Section 8 says that Congress has the power to “declare war,” “raise and support armies,” and “provide and maintain a navy.”

The War Powers Resolution says the Constitution only allows the president to introduce U.S. Armed Forces into hostilities “pursuant to a declaration of war, specific statutory authorization, or a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” In the absence of a declaration of war, the Resolution requires the president to submit a report to Congress any time he introduces Armed Forces into hostilities or into a foreign territory. The Resolution says that the president must end such a deployment of Armed Forces if Congress does not declare war or authorize deployment within a set period of time. The Supreme Court has not said whether the War Powers Resolution is constitutional. It may unconstitutionally restrict the president’s constitutionally-granted war-making powers. But let’s assume it doesn’t.

According to the War Powers Resolution, it is legal for the president to authorize military action using his executive power as Commander in Chief when there is (1) a declaration of war by Congress, (2) a specific statutory authorization, or (3) “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” The issue then turns to whether or not the drone attacks taken by the current administration fall within restrictions of the Resolution.

The War Powers Resolution essentially defines war as “hostilities.”  The term is plainly vague and ambiguous.  The Ford administration simply chose to define “hostilities” as instances where U.S. armed forces were exchanging fire with hostile forces.  Subsequent administrations built upon this definition.  The Obama Administration, in a June 28, 2011 hearing related to the military actions taken in Libya, defined four specific factors that would determine whether military action came within the meaning of “hostilities” under the War Powers Resolution.  First, the administration considers the nature of the mission and whether it was limited or extensive. Second, they consider the exposure of the Armed Forces to enemy fire. Third, they consider the risk that the fighting will escalate.  Fourth, they consider the military means used, and whether those means were limited or full military engagements.  In the context of Libya, the U.S. Department of State announced that all four factors indicated a finding that the U.S. had not entered into “hostilities,” meaning the War Powers Resolution did not apply.

If we use the administration’s definition of “hostilities,” it seems drone strikes would not satisfy at least the first two factors. As to the first factor, any time the military uses a drone strike, that single strike is limited in nature. There is typically one target, and the attack takes place relatively quickly.  A drone strike is not an indiscriminate bombing.  Whether it strikes its target and only its target is another issue.  As to the second factor, the immediate exposure of the military to danger would be minimal.  The drones are unmanned themselves and controlled remotely from an air base maybe thousands of miles away in friendly territory.

The third and fourth factors may be more problematic.  As for the third factor, it can be argued that the risk of escalating the fighting is limited because once the drone strike takes place, the drone itself disappears, leaving the targets with nobody in their immediate vicinity to retaliate against.  But this does not consider the long-term effects of drone strikes. Arguably, the strikes themselves, which create a level of fear within the communities in which they are employed, inspire jihadists and help the recruitment efforts of organizations like Al-Qaeda and ISIS.  Those new jihadists in turn carry out additional attacks on American targets.  American investigators discovered that the younger brother of the Boston Bombing suspects, Dzhokhar Tsarnaev, had downloaded articles written by the radical cleric al-Awlaki who had been killed by a drone strike in Yemen.

Mass graveThe fourth factor ignores the changing nature of warfare.  The government claims that because there is not a full scale commitment of tanks, ground troops, naval ships, and air force, then there are no “hostilities.”  The reality of the situation, though, may be that, due to the inherently different nature of conflict with terrorist organizations – they hide among civilian groups and avoid mobilizing into any large force – the deployment of a full scale military operation is simply impractical.  Under the government’s argument, conflict with jihadists will rarely involve “hostilities.”  Moreover, the very idea that the military now has drones in its arsenal means those more traditional methods of warfare are being phased out and replaced to an extent. Despite the problematic nature of the third and fourth factors, however, it seems the Obama administration’s targeted drone strikes in foreign nations do not technically constitute “hostilities,” as defined by the administration, and so the War Powers Resolution may not apply.

Even if the War Powers Resolution does apply to drone strikes, strikes against Al-Qaeda and similar organizations are probably still permitted under the Authorization for Use of Military Force (AUMF). The AUMF, passed by Congress in 2001, says the president can “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons….” Such organizations would certainly include Al-Qaeda, but the AUMF lets the president determine who this would apply to. In light of such wide discretion granted to the president to determine who was somehow associated with 9/11, and in light of the fact that the AUMF contains essentially no restrictions on what kind of force the president can use, it seems there are very few situations indeed where the president could not claim that drone attacks were conducted under the authority of the AUMF.

It seems, then, that the president has the legal authority to conduct drone strikes abroad. This authority is probably strongest when the president authorizes strikes against organizations, countries and people that were involved in the September 11 attacks. The AUMF grants him that authority, and presidential authority is strongest when supported by congressional approval. The AUMF also satisfies the War Powers Resolution. Furthermore, the Framers intended the Constitution to allow the president to respond to sudden attacks, and drone strikes against terrorists could be justified as a part of an ongoing conflict that is a response to a sudden attack on the United States. Such a constitutional justification might apply even if the AUMF does not. The president’s authority to order drone strikes is weaker when applied to those organizations, countries and people that were not somehow involved with the September 11 attacks, but there are still strong historical justifications for unilateral military operations, as demonstrated by a long history of unilateral presidential military action.

The second pressing issue is whether a targeted drone strike is as legal against a terrorist who happens to be a citizen of the United States as it is against one who is not. The Fifth Amendment due process clause provides that no person shall be deprived of “life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The right not to be deprived of life, liberty, property or equal protection under the law is not just limited to American citizens. The amendment is structured to protect all people from infringement on these rights by our government bodies.

In the days immediately following the 9/11 terrorist attacks, Congress passed the AUMF to allow the president to hunt down the people and organizations responsible. In 2004, the 9/11 Commission shifted the authority over the drone strike program, from the CIA to the Department of Defense, a segment of the executive branch of government. As the head of the executive branch, the president has the ultimate authority to authorize drone strikes against targets who 1) pose a serious risk to the United States, 2) who can’t be captured, and 3) whose execution is consistent with applicable laws of war principles. President Obama has stated in an interview with CNN that American citizens “are subject to the protections of the constitution and due process.” However, almost one year prior to the interview, on September 30th, 2011, the administration successfully carried out the drone strike against Anwar al-Awlaki, a U.S. citizen residing in Yemen. While this was the only U.S. citizen targeted, at least three other citizens have been killed in drone strikes as well: Samir Khan, ‘Abd al-Rahman, and Jude Kenan Mohammed.

Eric Holder, the president’s attorney general, has justified these killings by citing UN Charter’s “Right to Self-Defense” doctrine. Under this doctrine, the U.S may target high-ranking al-Qaeda leaders who are planning attacks, “both in and out of declared theaters of war” regardless of citizenship. Holder further articulated the legal requirements in a speech at Northwestern University. In this speech he outlined requirements 1-3 in the previous paragraph. Additionally, Holder defended the drone strike program against claims that such drone strikes constitute “assassinations,” which are unlawful killings, because these killings are in self-defense and the targets pose an imminent threat.

Holder’s argument seems self-serving in nature because the imminent threat assessment and the viability of capture assessment are provided by the same agency – the Department of Defense – which orders and conducts the air strike. Additionally, many politicians have openly spoken out against the concentration of power and the ambiguous tests used to authorize drone strikes to kill targets. Sen. Mark Udall (D-Colo.) has questioned how imminent a threat must be to authorize such a strike. While al- Awlaki was a skilled recruiter for al-Qaeda and had been linked to attacks in the past, no evidence has been made available to suggest that he was actively organizing or participating in an imminent attack against the U.S. Senator. Ron Wyden (D-Ore.) has also expressed concerns over how much evidence is required in order to authorize a drone strike. Additional questions have been posed about the location of the drone strike. Al-Awlaki was killed in Yemen, a state we do not have open hostilities with. What are the geographical limits of these strikes? The Justice Department, another executive department, answered these questions in a 16 page memo in which the DOJ determined that there doesn’t need to be any evidence of an active plot to attack the U.S. Furthermore, the Department of Justice has determined that the Authorized Use of Military Force (AUMF) does not set any geographical limits on drone strikes.

This power concentrated in the executive branch to authorize drone strikes is a broad and unchecked power. So long as the executive branch classifies a person, citizen or otherwise, as someone who might carry out an attack on the U.S., regardless of the existence of evidence to support that belief, then the president can authorize an attack against a U.S. citizen regardless of where in the world they are located. This policy openly disregards the constitutional principles spelled out in our 5th and 14th amendments; that no citizen shall be deprived of life, liberty, or property, without due process of law. Anwar al-Awlaki was an American citizen, albeit a bad one, who some argue was entitled to, and denied his right to due process.

Due process does not operate in a vacuum. Civil and criminal law operate alongside the rules of war. But there are limits to deprivation of due process even in pursuit of war. In the 1866, post-Civil War case of Ex parte Milligan, the Supreme Court held that even in a time of war, Milligan, a U.S. citizen who was not actively involved in the armed conflicted, but was involved in a conspiracy to steal Union weapons and liberate Confederate prisoners of war, was entitled to his due process rights. Under the authority of President Lincoln, Milligan was arrested, tried, found guilty and sentenced to hang, all by a military court. In appeal to the Supreme Court, Milligan argued against the constitutionality of the military trial. The Court warned that martial law “destroys every guarantee of the Constitution, and effectually renders the ‘military independent of and superior to the civil power.'” The court held that “a citizen not connected with military service and a resident in a State where the courts are open and in the proper exercise or their jurisdiction cannot, even when the privilege of the writ of habeas corpus is suspended, be tried, convicted, or sentenced otherwise than by the ordinary courts of law.” A large majority in the Court also felt that Congress lacked the authority to deprive Milligan of his constitutional right to a trial by jury.

Now, 150 years later, with the technological advancements and the change of the entire background of warfare, the balance between constitutional protections and national security have been raised again. The issue remains if the President has the authority to deny an American citizen of their right to due process, in the time of a war conflict. Ex parte Milligan dealt with the use of the federal government’s authority against a citizen while they were still within the borders of the United States. Drone targets have yet to be carried out within the borders of the nation, so it is the discussion of how far the reach of a citizens rights to due process are carried. Ex parte Quirin held that a military tribunal has jurisdiction over those considered to be belligerent. They further held that the laws of armed conflict govern how the U.S. military may deal with a hostile regardless of his status of citizenship. If it is accepted that the U.S. is involved in an armed conflict, then the president, when authorized by Congress, may use military force and authority to deal with hostiles, and are not governed by the rules of domestic criminal law.

In Eric Holder’s explanation of the requirements needed to carry out a targeted drone strike against a U.S. citizen, he says there must be a “careful and thorough review”. This review must conclude that the targeted person is posing an imminent threat of a violent attack against the United States. The review process here has been argued to be the administrations best argument for satisfying any due process requirements. Hamdi v. Rumsfeld set the guidelines that U.S. citizens who have been captured during a time of combat “must have the rights of due process, and the ability to challenge their enemy combatant status before an impartial third party”. The court found that the Executive Branch does not have the authority to hold a U.S. citizen indefinitely without affording them basic due process that is enforceable through judicial review. One logical conclusion would be that if a detainee is afforded a minimal amount of due process, then a targeted person should also be afforded the same minimum amount of due process. However, this logic has been rejected by the administration, stating that such due process is not appropriate due to the time-sensitive decision involve in making a targeted strike. The time required would give a targeted person the ability to move, and the government would lost its strategic advantage. It could be countered, however, that special courts have been used in many national security decisions, especially when time is of the essence, such as the FISC courts’ decisions to allow wiretapping. The use of judicial review could limit errors that would result from a decision to use a targeted strike, and may itself be enough for due process.

That said, under the current status of the AUMF, the specific targeting of a person is allowed and there are no requirements for judicial review. Unless there is a change to these guidelines, it is likely to continue unquestioned as a natural incident to the war on terror. James Jay Carafano, writing for The Atlantic argues that, even if drones strikes are unethical, they are “perfectly legal.” He states that, because Congress has given the president an Authorization to Use Military Force, the president is operating under his legal authority. Because the targets of the drone strikes are suspected terrorists, within the purview of the AUMF and the execution of the war on terror, it can be argued that the drone strikes against terrorists who are also citizens are legal. A leaked white paper from the Department of Justice states that the Obama administration’s justification for the drone strikes is that the President has the power to order killings if an “informed, high-level official” believes a suspect to be a “continuing” and “imminent threat to the United States.

The opposing side believes that citizens, and perhaps even non-citizens, are entitled to protection under the Constitution. Martin S. Flaherty, writing for the Harvard Journal of Law & Public Policy argues: “[T]ext, history, precedent. None of these preclude extending Due Process consideration to the U.S. government deciding to mark someone who is not undisputedly a combatant for death outside a battlefield. To the contrary, these conventional sources of constitutional law point the other direction, one more consistent with the rule of law ideas that the Constitution of the United States forged.” Remember, the due process clause says “nor shall any state deprive any person of life, liberty, or property, without due process of law.”

Libertarian leaning former House of Representatives member, Ron Paul, summed up the objections to the unilateral use of lethal force against citizens well in an October 2011 statement:

“According to the Fifth Amendment of the U.S. Constitution, Americans are never to be deprived of life, liberty, or property without due process of law. The Constitution is not some aspirational statement of values, allowing exceptions when convenient, but rather, it is the law of the land. It is the basis of our Republic and our principal bulwark against tyranny. Last week’s assassination of two American citizens, Anwar al-Awlaki and Samir Khan, is an outrage and a criminal act carried out by the President and his administration.”

The authority of the President by the constitution, along with congressional approval given by the AUMF, allows the targeting of a person who is presumed to be connected to terrorism. While the President is required to balance national security with the individual’s rights, much discretion is vested in the executive branch. While the War on Terror has been determined to place the Unites States in an armed conflict with terrorist abroad, the AUMF and laws of combat probably also authorize the use of drone attacks on U.S. citizens. While due process concerns do arise, the administration has provided that their review of the facts, connecting an imminent threat of violence and the inability to capture a person is correctly balanced against the individual’s rights. This may not be a perfect solution, but it is probably a legal one.

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Executive Use of Drone Strikes