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Seeking Daylight on U.S. Drone Policy

Interviewee: John B. Bellinger III, Adjunct Senior Fellow for International and National Security Law
Interviewer: Jonathan Masters, Deputy Editor
March 29, 2013

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The debate over U.S. drone policy continues to play out in the media and nation's capital, with critics of the Obama administration calling for greater transparency and oversight in the lethal targeting of terrorists, including, potentially, U.S. citizens. The White House has made strides in recent months to elucidate its legal justification for targeted killings, and is reportedly considering policy changes designed to streamline the counterterrorism program, such as moving the bulk of authority over lethal drones from the CIA to the Pentagon. CFR's John Bellinger, former top attorney at the State Department during the George W. Bush administration, discusses some of the significant legal issues involved in the ongoing drones debate and touches briefly on detention policy and the hunger strikes at Guantanamo Bay.

We've heard recent talk that the CIA may be transferring some or all of its lethal drone program to the Pentagon. What are the implications of this? Will this provide a greater degree of transparency?

If the program is transferred to the Defense Department but the government still does not acknowledge the strikes or provides very little detail about who has been targeted and why, it would not address the [transparency] concerns. I'm assuming that since the CIA under the National Security Act is primarily responsible for the conduct of covert actions--activities where the role of the United States is not intended to be acknowledged at all--the intent of transferring part or all of the programs to the Defense Department would be to allow a greater acknowledgement of the drone strikes that are carried out, in particular where and against whom.

Is this a policy you would support?

I would support it. It's not clear to me why so much of the Obama administration's very aggressive [targeted killings] program has had to be completely unacknowledged and carried out, presumably, under covert action rules as opposed to more acknowledged military rules. Of course, it's necessary to retain some capability to carry out strikes that are not acknowledged, but it's not clear to me why we've had to go to the other extreme, where no strikes were acknowledged.

One possibility may be that the governments of all or some of the countries involved consented to the drone strikes, but do not want that consent to be made known. So if the U.S. government were to acknowledge that it had conducted a drone strike in, for example, Pakistan or Yemen, that might put great pressure on those countries to either acknowledge or to deny that they've given consent.

The president has legislative authorization for targeted killings and also the constitutional power to kill with drones. Can you briefly talk about the two and why both are necessary?

For any use of force by the United States, an executive branch lawyer wants to demonstrate that it's permissible under both domestic and international law. Under domestic law, the use of drones against terror suspects is authorized by the Authorization to Use Military Force act (AUMF) passed in September 2001--provided that those targeted fall within the parameters of that authority.

[Section 2 of the act reads: "That the President is authorized to 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."]

The president also has additional constitutional authority anytime to use force to protect the Unites States, either in self-defense or because he believes that it's in our national security interest. So if President Obama concludes that it's necessary to carry out a drone strike against a terror suspect, but that individual does not fall into the categories covered by the AUMF, he would have additional constitutional authority.

But this administration has taken great pains to emphasize that it has been relying on congressional grant of authority rather than the president's own constitutional authority to conduct most of its counterterrorism operations. It has wanted to do that to contrast itself with the Bush administration, which had, at least early in its tenure, relied heavily on the president's constitutional authority. It's not clear though, at this point, given how old and somewhat limited the AUMF is, if the Obama administration has now been forced to rely on constitutional powers for certain drone strikes. It appears to many observers that the administration may be stretching the limits of the AUMF by targeting people who were not responsible for 9/11 or who were not affiliated or associated co-belligerents with those who carried out 9/11.

In theory, could the president always claim constitutional authority with regard to these strikes? Although, as you pointed out, the administration is obviously loath to do that.

This administration is already finding that 95 percent of its counterterrorism policies, and the legal basis therefore, are the same as the Bush administration's.

Absolutely. I think the issue is, in this administration, political. This administration is already finding that 95 percent of its counterterrorism policies, and the legal basis therefore, are the same as the Bush administration's. It came into office with both domestic and international supporters expecting that it would change all of those policies. So one area where it really has been loath to act like the Bush administration is to rely heavily on the president's constitutional authority. We simply don't know whether they are doing it, but politically I'm sure that administration officials would be very reluctant to have to acknowledge that they are acting outside of the grant given to them by Congress.

Could the CIA start drone strikes in Syria, for instance, on the al-Nusra terrorist group, which has been linked to al-Qaeda in Iraq?

For one, we don't really know what the Obama administration's legal theory is for any use of force against affiliates, associates, or co-belligerents of al-Qaeda, because the administration has not been very clear on how broadly they believe the AUMF applies. Administration officials have suggested unofficially that they think the AUMF can be read extensively to cover groups that didn't exist at the time of 9/11, or young men who were too young at the time of 9/11 to have been responsible for the attacks, as long as there is some loose association or co-belligerency. So assuming that the facts were there to support it, the administration could rely on that theory to attack members of al-Shabaab or al-Nusra.

It seems that as long as the administration continues to officially label some of these militant groups as terrorist groups, this will drag on indefinitely.

That's one reason that I've called for a revision of the AUMF--not that I don't believe the executive branch shouldn't be exercising the powers of self-defense against these groups, but that it's better for the elected representatives and the American people to agree with the executive and to give it a specific grant of authority.

Those who oppose the use of military force on the left are uncomfortable with any further use of force, and we saw that two weeks ago with the New York Times editorial saying the AUMF should be rescinded. That viewpoint presumably reflects the view of critics on the left, who are tired of war, believe that it may be endless, and don't want to have the AUMF used for continued counterterrorism operations. It's unclear to me how they believe the United States should go about defending itself in carrying out current military operations.

So in theory, the president would just be relying on his constitutional authority?

Those critics would then complain even more vociferously if the president were to do that. Presumably the suggestion is that we should just simply stop all counterterrorism actions altogether--or at least the military aspects--and rely only on law enforcement mechanisms such as extradition requests or diplomacy against those members of al-Qaeda or other groups around the world.

There are important constituencies in the president's base who are so tired of counterterrorism operations that they are going to resist any changes to the AUMF and are likely going to want it cut back rather than extended. That may reflect why the administration, as a political matter, has been reluctant to open it up for revision, even though both career officials and many political appointees in the administration recognize that it would be much better to have an AUMF that more clearly covers the kinds of operations that the administration is engaged in.

People have also talked about increasing the oversight process. There's been talk of so-called "drone courts," similar to FISA courts and other mechanisms. What's your assessment of this debate?

We have three branches of government, and checks and balances does not necessarily mean that the judicial branch has to get involved in military activities.

More oversight is important, but not judicial involvement. We have three branches of government, and checks and balances does not necessarily mean that the judicial branch has to get involved in military activities. And in this case, it would be very difficult to have a judge involved either before or after the fact in reviewing or authorizing drone strikes.

Greater congressional involvement, though, is important. It's been unclear until recently how much the [congressional] intelligence committees have even been involved at all. Senator Diane Feinstein (D-CA) recently suggested that the [Senate Select Committee on Intelligence] has been actively involved, and that's a good thing. But it would be useful for Congress to pass legislation if the particular concern is the targeting of Americans--then Congress could set certain parameters for targeting of Americans, what procedures should be followed, and whether Americans who would be on a target list should be reported to Congress either before or after the fact. That provides very important checks and balances.

You testified about this very issue in February and said that there should be "certain additional protections" for U.S. citizens before they are targeted. What should some of these be?

Personally, I don't think legislating additional protections are necessary, because at this point it does not seem to me to be a sufficiently broad problem that would require new law. And I'm personally comfortable--based on reading the Obama administration's white paper and Eric Holder's speech--that the administration is targeting Americans rarely and only after very careful internal reviews.

That said, if the elected representatives of the American people believe that this is a serious problem, then it certainly would be appropriate to legislate in this area. And the appropriate protections would be greater congressional oversight, but not to mandate judicial oversight. If they decided to legislate, I have some ideas on how they could do it, but I would not be standing at the forefront suggesting that this is something really necessary. This may be a solution in search of a problem.

Is the U.S. setting the right precedent with its targeted killing policy?

This is one of the most serious aspects of the drone problem for the Obama administration. They've opened up Pandora's box and done little to try to cap the use of drones by other countries as a legal matter. The administration has given a series of very good speeches on this, but has not put sufficient legal meat on the bones that it could criticize other countries that may apply the same principles the U.S. is applying today.

Switching gears a bit, I wanted to ask about the hunger strikes at Guantanamo, which Obama vowed to close upon taking office. What are your thoughts on this?

Of course, this is the last place the Obama administration expected to find itself four years later--to be both criticized domestically and internationally for potentially committing war crimes through drone strikes and now, four years later, to have a substantial number of Guantanamo detainees going on hunger strike. All of this reflects the Obama administration's belief that these counterterrorism problems could be solved much more easily than turned out to be the case.

Guantanamo is the case in point. I have long supported closing the facility and have worked very hard personally when I was in office to move to the day when we could do that. But there's certainly a large sum of people who continue to pose a threat. I do think that holding a large sum of people indefinitely--meaning ten, twenty, thirty, forty, fifty or more years--is not sustainable. Some president and some Congress will have to be able to figure out some novel solution, whether it is getting certain countries to take responsibility for these individuals or just being willing to take the risk and let them go.

Do the hunger strikes raise any particular problems?

The international law in this area is unclear. There's some soft law, meaning human rights guidelines or medical guidelines that critics of force-feeding suggested that the Bush administration was violating. Frankly, these were decisions that were largely made by career officials, although certainly affirmed by political officials. The fact that we have not seen the same criticism of the Obama administration, as a political matter, really does demonstrate the international double standard.

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