Thursday, May 31, 2012

On the Legality of Congressionally-Authorized Drone Strikes

Understood the Nature of Wartime "Due Process"

In a house editorial today the New York Times criticizes President Obama for what it calls "unilateral" decisions to kill terrorists "without the consent of someone outside his political circle."  According to the Times:

"No one in that position [a President running for re-election] should be able to unilaterally order the killing of American citizens or foreigners located far from a battlefield — depriving Americans of their due-process rights — without the consent of someone outside his political inner circle. . . . .It is too easy to say that this is a natural power of a commander in chief. The United States cannot be in a perpetual war on terror that allows lethal force against anyone, anywhere, for any perceived threat. That power is too great, and too easily abused, as those who lived through the George W. Bush administration will remember."  President Obama, the Times says, believes that "the shadow war on terrorism gives it the power to choose targets for assassination, including Americans, without any oversight."

The Times editorial follows other "Progressive" commentary critical of the President's use of drone strikes to kill suspected terrorists.

The Times and other Progressives are wrong on at least three counts.  First, there is no indication that the Obama Administration is claiming the right to kill any and all purported "terrorists."  Instead, all published reports indicate that the Administration is targeting members or affiliates of Al Qaeda, the organization responsible, by its own admission, for several attacks on the United States, and an organization that has not surrendered to the United States.   Thus, any "war on terror" is in fact a "War on Al Qaeda."   Second, neither President Obama, nor President Bush before him, initiated this war "unilaterally."  Instead, both have simply carried out the will of the people as expressed by the Congress of the United States shortly after the September 11 attacks.  Third, drone strikes that kill individuals the President believes to be members of Al Qaeda do not violate "due process."

Congress could have responded to the September 11 attacks by authorizing more aggressive law enforcement activity, whereby the FBI would arrest (or attempt to arrest) suspected members of Al Qaeda for trial in U.S. Courts.  Instead, and as previously explained on this blog, Congress rejected the "law enforcement" approach taken during the 1990s, an approach which had failed to prevent numerous terrorist attacks on the United States and its interests.  That is, Congress, on September 18 2001, exercised its war powers and passed the "Authorization to Use Military Force," ("AUMF") reproduced in full below.   That Resolution empowers the President, as "Commander-in-Chief of the Army and the Navy of the United States," to employ "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."   As previously explained on this blog, the AUMF contains no geographic limitation, but instead authorizes the President to employ "force" against any individual that "he determines" (without any requirement of additional process) to be in the identified class, whether or not they are on or near any battlefield.  (In the same way, the December 9, 1941 Declaration of War against Germany contained no such geographic limitation.)  Nor does the AUMF purport to immunize from attack American citizens who join Al Qaeda.    So far as this blogger is aware, no one has alleged that either President Obama or President Bush has targeted individuals, even suspected terrorists, outside the class identified in the AUMF.  President Obama no more needs "outside consent" for such strikes than FDR needed such consent before ("unilaterally") ordering the invasion of France.

To be sure, one can imagine scenarios in which  a hypothetical President abuses and exceeds the power that Congress has granted, whether the AUMF or the formal Declaration of War against Germany.  However, as Joseph Story explained nearly two centuries ago, the fact that a power may be abused is no argument against it.  So long as the President merely exercises the authority that Congress has granted him, suspected members of Al Qaeda have received all the "process" they are due.  As Colonel Kirby (pictured above), played by John Wayne noted in the Green Berets "[o]ut here, Due Process is a bullet."  Today he might add "or a Congressionally-authorized drone strike."

Update (June 1, 2012).  Two comments take issue with my assertion that Congress may authorize military force against American citizens whom the President determines have taken up arms against the United States.  I appreciate the opportunity to provide some additional elaboration on my views.

1.  The Due Process Clause does not distinguish between American citizens and other "persons." In any event, the Constitution itself apparently contemplates the use of military force against American citizens.  Article I, Section 8 empowers Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions." (emphasis added)   Suppression of an insurrection can entail the use of lethal force, without a pre-deprivation hearing, against citizens who have taken up arms against the United States and participated in the insurrection.  President Washington suppressed such a (short-lived) insurrection in 1794 --- the so-called "Whiskey Rebellion" --- exercising the authority to employ the militia for this purpose that Congress had granted him in the Militia Act of 1792.  President Lincoln suppressed a rebellion from 1861-65, and he ordered an invasion of several Southern states to do so.  In my view, an American citizens who joins the army of a foreign power is, as a constitutional matter, indistinguishable from an American citizen who joins a domestic insurrection.  

2.  The conduct of war necessarily requires military commanders and soldiers to distinguish between combatants and non-combatants.  This is true whether the soldiers are suppressing an insurrection at home or invading an enemy abroad.  That is, they must "determine" (the language employed by the AUMF) whether various individuals are members of rebel forces (if at home) or enemy forces (if abroad).  When Admiral Halsey ordered American fighters to shoot down an aircraft on April 18, 1943, he did so because he "determined" that the plane was transporting Japanese Admiral Yamamoto.   He was right, and the mission was successful.  If he had been mistaken and the fighters had destroyed a civilian aircraft, that would have been a tragedy.  However, the possibility of such a wartime tragedy does not in my view mean that the attack deprived Admiral Yamamoto of due process of law.  Nor would such a mission have contravened due process if instead Halsey had targeted a fictitious American Admiral Murphy because he "determined" that Murphy had gone over to the enemy and thus chosen to wage war on the United States.  (Imagine if, during World War II, thousands of Americans had fled the country and enlisted in the German Army.  Imagine further that Germany had formed a division from these soldiers and deployed them to defend Normandy.  Surely President Roosevelt could still order an invasion of Normandy without some sort of judicial hearing beforehand.)

3.   As noted in my initial post, any President could abuse the power granted by the AUMF.  President Obama could, for instance, decide to launch drone strikes on random American citizens or random citizens of other countries.  (He could also do this absent the AUMF, by the way.)  In the same way, President Roosevelt could have ordered the battleships of the Atlantic Fleet to shell American cities, claiming that such cities had sworn loyalty to Germany.   All of these actions would exceed the authority conferred on the President by the relevant statutes (the AUMF or the Declaration of War against Germany) and the Constitution.  That is to say, President Obama's hypothetical drone attack on American cities would not be the result of an actual "determination" that the targeted citizens were members of Al Qaeda.  Thus, such orders, if carried out, would be murder --- the unprivileged taking of a human life and thus subject to prosecution under the law of the state where the murder took place.

So far as I know, however, no one has asserted that the drone strikes ordered by President Obama do not rest on a good faith "determination" that the targeted individuals have joined Al Qaeda and taken up arms against the United States.

Here is the full text of the Congressional Resolution that the Times and others have ignored:

One Hundred Seventh Congress

of the

United States of America

Begun and held at the City of Washington on Wednesday,
the third day of January, two thousand and one

Joint Resolution
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,


This joint resolution may be cited as the `Authorization for Use of Military Force'.


(a) IN GENERAL- 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.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.