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Experts: Obama's drone strike policy pushes legal boundaries

Apr. 23, 2013 - 08:59PM   |  
Mar. 1 airpower summary: MQ-9 targets enemy with m
An armed MQ-9 Reaper taxis down a runway in Afghanistan. Legal and defense analysts told a Senate Judiciary Committee subpanel that the use of drone strikes by the U.S. military and CIA pushes the 2001 congressional authorization for military force to its legal breaking point. (Staff Sgt. Brian Ferguson/Air Force)
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WASHINGTON — The Obama administration’s use of unmanned aircraft to kill members of some Islamic extremist groups appears to violate the measure that authorized the U.S. war on al-Qaida, experts said Tuesday.

Several legal and defense analysts told a Senate Judiciary Committee subpanel that the use of drone strikes by the U.S. military and CIA against groups loosely affiliated with al-Qaida in places like Yemen and Somalia pushes the 2001 congressional authorization for military force to its legal breaking point.

What’s more, former Joint Chiefs Chairman Gen. James Cartwright, now retired, endorsed the use of the remotely piloted aircraft. But in a blunt moment he added this: “I’m concerned we might have ceded some of our moral high ground.”

At issue is the covert and clandestine drone war program, which has become the Obama administration’s preferred tool in the fight against al-Qaida. Lawmakers in both parties in recent months have been ramping up their scrutiny of the controversial program.

Rosa Brooks, a Georgetown University Law Center professor, told the Senate Judiciary Constitution, civil rights and human rights subcommittee that “current practices might undermine the rule of law.”

Brooks and other legal experts called for changes to both the 2001 use of force authorization and the administration’s process for picking targets. That’s because, Brooks said, she has concluded the administration believes “they can kill anyone at any time anywhere” through a process that is completely “secret.”

Retired Air Force Col. Martha McSally told the panel that during her time with U.S. Africa Command, American officials emphasized ensuring that all drone strikes in North Africa adhered to the 2001 resolution.

Brooks said it would be “absolutely possible” to build a legal case for “every” U.S. drone strike.

But, as lawmakers and administration officials mull potential changes to existing laws and drone-strike procedures, the Georgetown professor urged them to mull this question: “Do we want to live in a world where” the administration’s legal basis for the strikes “is so infinitely malleable?”

Ilya Somin, a George Mason University School of Law professor, told the panel he has concluded the “targeted killings of U.S. citizens are legal” if those individuals have become “enemy combatants.”

Several of the other legal scholars that testified before the panel Tuesday answered similarly under questioning from Republican lawmakers such as subcommittee ranking member Sen. Ted Cruz, R-Texas.

Such concerns spawned the headline-grabbing Senate floor filibuster conducted by Sen. Rand Paul, R-Ky., of President Obama’s then-CIA director nominee John Brennan. Cruz joined in that lengthy filibuster, which succeeded in forcing Attorney General Eric Holder to answer that the administration does not believe the Constitution would allow it to use a drone to strike a U.S. citizen on U.S. soil.

Senators expressed an interest in making changes to the drone-strike targeting process, and called for the administration to explain how it has determined its drone policy is legal.

Somin called for a revised system that allows missions to go forward, but provides “a check on executive power.” Any revised force authorization also needs to better define which groups and in which nations the U.S. could legally carry out drone strikes and targeted killings, he and the other experts said.

Members of both parties asked about the notion of setting up a special court to approve strikes before they are carried out or their legality reviewed afterward.

Cartwright endorsed the notion, and Brooks later added that such a court could be set up without hindering the president’s constitutional powers as commander in chief.

Sen. Lindsey Graham, R-S.C., however, said he is concerned such steps would turn “a war” into “a crime,” and hinder crucial operations against al-Qaida and other U.S. foes.

Due in part to lawmakers’ mounting concerns, reports surfaced in recent weeks that the White House is considering shifting most or all of the CIA’s drone program to the control of the Pentagon. A turf battle already is playing out among the military and intelligence oversight panels, and sources expect a years-long fight before the matter is settled.

Cartwright said if the drone strike is a “covert operation,” the intelligence community should run it. If a specific strike mission is a “clandestine” one, then the military should carry it out, the retired Marine four-star general added.

He noted that two American administrations have used a range of military tools, from bomber aircraft to cruise missiles to commando raids, to capture and take out al-Qaida operatives and leaders. But, he said candidly, armed drones are “the best available” option.

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