Congress Must Speak Up in the Drone Debate

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An unmanned US Predator drone flies over Kandahar Air Field, southern Afghanistan, on a moon-lit night, Jan. 31, 2010. (AP Photo/Kirsty Wigglesworth, File)

We have known for more than a decade about the targeted killing of suspected terrorists overseas by unmanned drones.  But in 2010 President Obama took that tactic to a new level – he placed a United States citizen on the kill list.  And in September 2011, Anwar al-Alwaki, born in New Mexico, was killed in Yemen by his own government.

Until now, the information available publicly about the targeting and killing of American citizens abroad came to us through leaked documents and unauthorized statements by government officials.  As a result of these leaks, President Obama’s drone policy has been hotly debated.

This week, a bi-partisan panel issued a report on America’s drone policy. It concluded: “There is no indication that a US strategy to destroy Al Qaeda has curbed the rise of Sunni Islamic extremism, deterred the establishment of Shia Islamic extremist groups or advanced long-term US security interests.”

Over the past two years, however, much of the focus of public discussion has been on the president’s legal justification for the program.  In other words, whether you agree or disagree with the use of drone killing as good policy in the fight against terrorism, it had not been established that the president was even acting lawfully under federal statutes and the Constitution when he kills an American citizen overseas.  Indeed, we had been left completely in the dark about his legal rationale until a Justice Department white paper on the subject was leaked to NBC in 2013.  I analyzed the legal reasoning in the white paper in an interview with last year, and found it unpersuasive to support the lawfulness of the killing of Mr. al-Alwaki.  The panel also criticized the administration’s “secret rationale” for the program in their report.

But this week there has been another new development.  After being ordered to do so by a federal judge, the Department of Justice released a heavily redacted version of the July 16, 2010 memorandum from its Office of Legal Counsel (OLC).  This memorandum, along with others that have yet to be released, purports to be a fuller explanation of the summarized legal analysis in the leaked white paper.  These memos, we are told, informed President Obama’s decision to kill Mr. al-Alwaki.

For those of us who were hoping to have a better understanding of the legal justification for our government killing one of its own citizens, however, we were sadly disappointed.  The legal rationales in the white paper were thin and relied on interpretations of Supreme Court precedent that was, at best, a stretch and, at worst, a distortion of the Court’s prior reasoning.  What we needed from the fuller memorandum released this week was more facts and they, not surprisingly, were redacted from the memo.

All legal analysis is dependent on the facts.  Law does not exist in a vacuum, and only has meaning as it is applied to the specific circumstances at hand.  David Barron, the author of the memo, and then Acting Chief of OLC, liberally and wisely salted throughout the document that his legal analysis depended on the facts as supplied to DOJ by the intelligence agencies.

So he relied on “facts” that are a collection of intelligence reports, themselves not proof of anything, and we, the American people, cannot know what those “facts” are.

Therein lies the rub.

The analysis of the federal law (foreign murder statutes) and constitutional (due process) legal rationales here are totally fact-dependent.  What do we know about Mr. al-Alwaki’s plans and intentions to do us harm, and was he an “imminent threat” justifying killing him?  Also factual, and redacted from our view, is the intelligence agencies’ reports to Mr. Barron that capture was “not feasible.”

So we are back where we started and, frankly, it is not surprising.  Of course, government lawyers must rely on classified information to make legal judgments about whether a proposed action by the president is lawful and constitutional.  And, of course, that classified information cannot be made public without risking intelligence sources and methods, and possibly endangering lives.

That is why we need judges.  Judges can review classified information and determine if it meets the legal tests and reaches the threshold for action.  Here all we have is executive branch officials reviewing the intelligence and assuring us that it is solidly sourced and sufficiently detailed to meet the applicable legal standards.  That is not good enough.

There is only one way to get our judicial branch involved in the decision to kill our citizens abroad – Congress must act.  After learning of executive branch abuses, in 1978 Congress passed the Foreign Intelligence Surveillance Act, which required judicial review before the FBI and NSA could conduct electronic surveillance inside the United States.  This law was amended in 2008 also to require judicial review to wiretap an American overseas.

So Congress has required judges to be involved, and to review the intelligence, before we tap an American’s phone in Yemen.  But Congress has not stepped up to require judicial review before we kill our own citizens.  This needs to change.

Vicki Divoll
Vicki Divoll is a lawyer and national security expert based in Washington, DC. Until 2012, Divoll taught United States Government and Constitutional Development at the United States Naval Academy. Prior to her work in academia, Divoll served as the General Counsel (2001-2003) and Minority Counsel (2000-2001) for the Senate Select Committee on Intelligence.
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