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Judicial Oversight of Drones?

Former Secretary of Defense Dr. Robert Gates today indicated support for some form of “check” on the President’s authority to use remotely controlled aerial vehicles against American citizens. The AP reports:

Former Defense Secretary Robert Gates says he finds merit in “some check” on a president’s ability to order drone strikes against American al-Qaida suspects overseas, lending support to creating a special court that would review such requests.

“I think that the rules and the practices that the Obama administration has followed are quite stringent and are not being abused. But who is to say about a future president?” said Gates, Pentagon chief for Presidents George W. Bush and Barack Obama.

The potential model that some lawmakers are considering for overseeing such drone attacks is a secret court of federal judges who now review requests for government surveillance in espionage and terrorism cases.

“Something that would give the American people confidence that there was, in fact, a compelling case … to launch an attack against an American citizen, I think just as an independent confirmation or affirmation, if you will, is something worth giving serious consideration to,” Gates told CNN’s “State of the Union” in an interview broadcast Sunday.

The issue gained momentum in the run-up to the confirmation hearing last week for John Brennan, Obama’s top counterterrorism adviser who helped managed the drone program, to be CIA director. Before the hearing, Obama directed the Justice Department to give the congressional intelligence committees access to classified legal advice providing the government’s rationale for drone strikes against American citizens working with al-Qaida abroad.

Demands for such information grew after the leak early last week of an unclassified memo on how decisions are made to target U.S. citizens abroad. The memo says it is legal for the government to kill U.S. citizens abroad if it believes they are senior al-Qaida leaders continually engaged in operations aimed at killing Americans, even if there is no evidence of a specific imminent attack.

The leader of the Senate Intelligence Committee, Sen. Dianne Feinstein, said she intended to review proposals for “legislation to ensure that drone strikes are carried out in a manner consistent with our values” and she suggested something similar to the Foreign Intelligence Surveillance Court. That special court reviews requests on government surveillance in espionage and terrorism cases.

Gates said that “this idea of being able to execute, in effect, an American citizen, no matter how awful, having some third party having a say in it or perhaps … informing the Congress or the intelligence committees or something like that, I just think some check on the ability of the president to do this has merit, as we look to the longer term future.”

A September 2011 drone strike in Yemen killed Anwar al-Awlaki and Samir Khan, both U.S. citizens. A drone strike two weeks later killed al-Awlaki’s 16-year-old son, a Denver native.

The strikes came after U.S. intelligence concluded that the elder al-Awlaki was senior operational leader of al-Qaida in the Arabian Peninsula plotting attacks on the U.S., including the abortive Christmas Day bombing of an airplane landing in Detroit in 2009.

In Thursday’s hearing, Brennan defended drone strikes as necessary, saying they are taken only as a “last resort,” but he said he had no qualms about going after Anwar al-Awlaki.

He said the White House had considered the concept of the special courts, and he said he would be open to discussing it because “American citizens by definition are due much greater due process than anybody else by dint of their citizenship.”

The are a variety of critical policy and legal questions surrounding the use of drones (see Matthew Waxman’s excellent video on some of them). But I am not sure establishing a procedure for judicial review is constitutional– or wise for that matter. The key argument for the lawfulness of using drones against American citizens is that those citizens are combatants in an armed conflict against the United States. To subject the determination of whether a person is a combatant to judicial review would seem to rather clearly violate the separation of powers requirements in the Constitution.

First, the Constitution vests the war powers in the political branches of government– the Legislative and Executive branches. Article I, sec. 8, empowers Congress with a variety of war powers, including the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” And, Article II, sec. 2 proclaims that “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

Second, even while there is much debate about what the Constitution meant when it designated the President as “Commander in Chief,” it has nearly universally been understood to mean that the President is responsible for the conduct of armed conflict. In Federalist 69, Hamilton notes that the authority of the President as commander in chief would give to the president “the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy.”

There is, however, a potential role for Congress. In his separate opinion in Bas v. Tingy (1900), Justice Case notes:

Congress is empowered to declare a general war, or Congress may wage a limited war, limited in place, in objects, and in time. If a general war is declared, its extent and operations are only restricted and regulated by the jus belli, forming a part of the law of nations, but if a partial war is waged, its extent and operation depend on our municipal laws.

What Justice Case suggests is that if there has been a declaration of war, the only limit on the president’s authority in the conduct of hostilities is the jus belli, what today we would call the laws of armed conflict– codified in instruments like the Hague and Geneva Conventions and also found in customary international law. If, however, Congress authorizes the use of force through means other than a formal declaration, (partial war), Congress may be able to impose certain limitations. In the current armed conflict against Al Qaeda and associate forces, Congress has, in fact, authorized war by means other than a formal declaration of war– the Authorization for the Use Military Force, adopted in 2001.

But could Congress regulate the determination of whether a specific person or type of person is a combatant?  In Ex Parte Milligan, the Supreme Court noted:

Congress has the power not only to raise and support and govern armies, but to declare war. It has therefore the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief. (emphasis added)

To me, this indicates that the President has sole authority to determine who the specific combatants are when conducting a campaign.

So, if the Constitution delegates the war powers to Congress and the President. And if it would seem that the President has the sole authority to determine who a combatant is, how could there be a legitimate role for the the Judiciary?

In fact, courts have traditionally kept out of disputes between Congress and the President about the extent of the war powers. In case after case, courts have typically ruled that such cases are nonjusticiable– using either the political question doctrine or some other justiciabilty doctrine.

But what if there were a legislative act– approved by the President– establishing a specific arrangement for judicial review?

I am still inclined to think that if such act were subject to  judicial testing it would be found unconstitutional because it would be involving the courts in something that is inherently within the realm of the political branches– who is a combatant in an armed conflict.

Of course- this is not to say that I favor the current use of drones as a matter of policy, nor that I don’t worry about whether the drones are being used in a manner that complies with the laws of war. But those are concerns are different from the question of whether judicial review of drone use is constitutional.

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.