Drone Links

by Andrew Rudalevige on February 7, 2013 · 5 comments

in Law,Presidency

John Brennan’s confirmation hearing has just started – it’s over on C-SPAN, complete with early protesters being ejected from the hearing room, this afternoon. The protesters, of course, are a physical manifestation of the explosion in the scholarly blogosphere with regards to the release of the Obama administration’s legal justification of the president’s ability to order lethal drone strikes, even against American citizens. In anticipation of the hearing, the Senate Intelligence Committee has finally been given a copy of the long memo aiming to justify the assassination of (at least) Anwar al-Awlaki in the fall of 2011 (though apparently access was ‘eyes only’ for the committee members themselves – no staff).  Separately, NBC News obtained and released a 16-page white paper, here – summarizing that memo’s arguments.

I have written many times on this blog and elsewhere about how presidents, driven by their institutional position, tend to be far more consistent across administrations when it comes to issues of executive power than their separate pre-electoral rhetoric would imply. Yet if the claims are predictable, that doesn’t mean they are right. The white paper makes very strong claims about the wide (even unbounded) geographic scope of the war on terror, the president’s power to conduct that war without legislative or judicial checks, and the administration’s ability to define what constitutes “due process under law” when it comes to American citizens. It defines imminence (as in “imminent threat”) more or less of existence – of a piece, perhaps, with presidents’ traditional redefinition of “whenever practicable” in oversight legislation as “pretty much never.” It reminds us, too, of the breadth of the grant of power given the president in the 2001 Authorization for the Use of Military Force.

So serious commentary is needed, and many of our colleagues are providing it. I wanted to highlight a handful of links to begin the conversation; I hope readers will use the comments section to add to this short list.

  • There is extensive discussion of the legal arguments here at the Lawfare blog, for example from Rick Pildes on the ‘imminence’ issue. See too Jack Goldsmith’s collection of posts on the site.

  • Glenn Greenwald really, really hates the memo (and the policies it defends).

  • Eric Posner thinks the outrage is overdone, given the breadth of the AUMF.

  • David Rohde (ex-NYT) talks about the broader foreign policy picture.

  • And last but hardly least comes what Stephen Colbert had to say on the topic, when AG Eric Holder discussed it in  2012. As Justice Holmes should have said, a page of Colbert is worth a volume of logic…

PS – OK, one more. The Onion has its own sensitive take, as you might expect.

{ 5 comments }

Sebastian February 7, 2013 at 6:29 pm

The NYTs opEd by Mary Ellen O’Connell. Also highly critical of the memo/whitepaper: http://www.nytimes.com/2013/02/07/opinion/the-questions-brennan-cant-dodge.html?ref=opinion

John Patty February 7, 2013 at 9:00 pm

I think a big problem with the policy is its incoherent view of due process, as opposed to its definition of imminent. In particular, there is a significant conflict between the premise of the memo and the secrecy of the “kill list.”

http://www.mathofpolitics.com/2013/02/06/who-has-a-secret-list-and-flies-around-the-world-with-gifts/

Andrew Rudalevige February 8, 2013 at 10:47 am

I don’t disagree, though would argue they (due process, imminence) are linked in that the constancy of the latter helps the administration argue that the costs of actual due process outweigh the benefits.

In the interests of balance, if not actual logical coherence, I would note that John Yoo has a piece in the Wall Street Journal arguing there is too *much* due process going on! It’s behind a paywall but Lawfare sums it up:
http://www.lawfareblog.com/2013/02/john-yoo-on-targeted-killing-white-paper/

John Patty February 8, 2013 at 1:20 pm

That’s a good point — they are linked in terms of the feasibility of rendering due process (as I see it). In particular, I can see the objection that due process stands in the way of striking an American citizen who “pops up on the radar” and the threat is “imminent.” But, in my mind, this scenario seems (1) at odds with the notion of continuous monitoring leaned on in the policy paper and (2) like it falls under normal exceptions to “traditional” due process when the threat is truly imminent. So, yes, I see the point of arguing about imminence.

But I still don’t see why the kill list should be kept secret, not to mention the justification for the entire policy. I don’t see even the beginnings of an argument of how one can square asserting “executive privilege” (or a cousin of it) over a *legal* memo with the rule of law.

Andrew Rudalevige February 12, 2013 at 10:16 am

One more quick addition – Benjamin Wittes has posted on Lawfare about the imminence question, arguing it might not be as dramatic a change as people (like me, above) are arguing. See http://www.lawfareblog.com/2013/02/are-people-overreading-the-white-paper-on-imminence/

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