Drones and the Law: Restoring Checks and Balances

The Department of Justice has recently released a white paper detailing what it believes to be the scope of the president’s authority to kill Americans suspected of being members of al Qaeda—killings that are usually conducted via drones. The white paper argues that the killing of such suspects does not violate due process or the Fourth Amendment, claims that a lethal operation against such suspects does not violate the tenets of Executive Order 12333 (which among other things, prohibits assassinations), and states that the power to kill such suspects can take place “away from the zone of active hostilities.” Additionally, the president can authorize legal force against an American citizen located in a foreign country that either gives its consent to a legal operation, or “after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.” A suspected American terrorist can be killed outside of the United States if the suspect “poses an imminent threat of violent attack against the United States,” but this “does not require the United States to have clear evidence that a specific attack on U.S. persons or interests will take place in the near future.”

The white paper has prompted spirited reaction. Indiana University law professor Gerald Magliocca argues that it is too easy to authorize a lethal drone operation because it is not clear who qualifies as “an informed high-level official” for the purposes of determining that “a targeted individual poses an imminent threat of violent attack against the United States,” and because the language of the white paper might suggest that only one such “high-level official” is needed to issue such a determination. George Washington University law professor Jeffrey Rosen claims that the administration’s arguments do not pass constitutional muster. Harvard law professor Jack Goldsmith states that while “[t]here is little of substance that is new in the White Paper,” the white paper “does reveal problems in the administration’s political and legal strategy for conducting drone strikes, especially against American citizens,” including “excessive secrecy.” Goldsmith also argues that we need “a new framework statute” that would “define the scope of the new war, the authorities and limitations on presidential power, and forms of review of the president’s actions.” Goldsmith’s call for a new framework is echoed by former secretary of defense Robert Gates, who has argued for the creation of a “third group” that would inform Congress and intelligence communities about drone strikes, thus creating more oversight for the process.

Some have argued that the best “form of review” of the president’s actions would be found in a FISA-like court charged with the responsibility to authorize lethal operations against Americans suspected of being members of al Qaeda (much as the FISA court is charged with the responsibility of authorizing surveillance warrants at the request of federal law enforcement agencies). But as Robert Chesney, a law professor at the University of Texas, Austin notes, “some judges want absolutely nothing to do with” the process of reviewing whether certain Americans ought to be marked for death, and even if they do, judicial oversight may be constitutionally and procedurally problematic.

So perhaps a different “form of review” is required. One such alternative mechanism might be to empower the President’s Intelligence Advisory Board to serve as a check against any overreach of presidential power in targeting American suspects for killing.

As currently constituted, the PIAB is “an independent element within the Executive Office of the President.” But to truly establish the entity’s independence from the office of the presidency, Congress should pass and the president should sign legislation reconstituting the PIAB as a Federal Intelligence Commission, and making it an independent regulatory agency, much as the Federal Election Commission is. Members of the new FIC must be nominated by the president and must undergo Senate confirmation—thus allowing for congressional oversight of the FIC’s activities.

When the president’s national security team determines that an American citizen suspected of involvement with al Qaeda may be the target of a lethal operation, that finding will have to be forwarded to the FIC for review. The FIC may then issue its blanket approval or disapproval, or propose amendments and modifications to the finding. At that point, both the determination of the president’s national security team and those of the FIC will be forwarded to the president, who may invite his national security team and members of the FIC to debate their respective findings in meetings with him. In the event that the president overrules any limitations on the part of the FIC on the findings of his national security team, his administration must inform the House and Senate Intelligence Committees that the president has undertaken actions that exceed the recommendations of the FIC. This may prompt oversight hearings that may occur in closed session as might be necessary to safeguard national security secrets.

Empowering an independent agency to act as a check against presidential power and allowing for greater congressional oversight in the process is a good way to ensure the drone program is not being abused, and may help the administration win over congressional skeptics of the drone program through discussions at oversight hearings. For these reasons, the Obama administration should support more checks on the drone program, and should encourage Congress to authorize such checks via legislation.

Pejman Yousefzadeh is an attorney in the Chicago area. He writes on law and public policy at his eponymous blog.

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