Drones and Targeting

by Deborah Pearlstein

For those who follow these topics, two items of note. First, an AP story today reports that the United States is building a secret CIA air base in the Persian Gulf region to support U.S. targeting operations in Yemen. The story is sourced to anonymous government officials, and reports that “U.S. forces have stepped up their targeting as well, because of the besieged Yemeni government’s new willingness to allow U.S. forces to use all tools available — from armed drones to war planes — against al-Qaida as a way to stay in power, the U.S. officials said.” Coupled with the debate this week in the Senate about whether to sign off on a bill giving the President wider authority to use force against Al Qaeda and associated groups (more on which here, here, and here), this is significant news. I’m surprised not to have seen it picked up more yet.

Second, and certainly timely, the Cato Institute has a set of essays up by John Dehn and others looking at the legality of targeted killing. The lead essay by Ryan Alford focuses on Anglo-American constitutional principles against the killing of a citizen or subject without judicial authorization. Check them out here.

http://opiniojuris.org/2011/06/15/drones-and-targeting/

6 Responses

  1. “Coupled with the debate this week in the Senate about whether to sign off on a bill giving the President wider authority to use force against Al Qaeda and associated groups…”


    Or, at least, the debate behind closed doors this week in the Senate.  Because, from all indications, Carl Levin’s Senate Armed Services Committee is conducting its multi-day committee mark-up of the FY 2012 National Defense Authorization Act – concluding late this evening – entirely in “CLOSED” committee session.

     
    Predictable tactics, perhaps, from someone (Carl Levin) whose only move to even remotely acknowledge his powerful committee’s and institution’s Constitutional duty to authorize the use of force before this nation goes to war, aside from an immediate response to sudden attack, is to co-sponsor a non-binding “Sense of the Senate” Resolution supporting the President’s Congressionally-unauthorized, unilateral use of armed force against Libya.

  2. “Coupled with the debate this week in the Senate about whether to sign off on a bill giving the President wider authority to use force against Al Qaeda and associated groups…”

    Or, at least, the debate behind closed doors this week in the Senate. Because, from all indications, Carl Levin’s Senate Armed Services Committee is conducting its multi-day committee mark-up of the FY 2012 National Defense Authorization Act – concluding late Thursday evening – entirely in “CLOSED” committee session.

  3. Response…
    The President already has constitutionally-based authority to engage in permissible self-defense under Article 51 of the U.N. Charter — Obama’s duty and competence faithfully to execute the laws, which (of course) include treaty-based and customary international law.  Constitutional “principles” do not limit the President’s competence to defend U.S. nationals from ongoing non-state actor armed attacks, as long as the methods and means adopted comply with relevant laws (e.g., international law regarding distinctions and proportionality, human rights law applicable when a person is in “effective control” of U.S. personnel, any congressional limitations that are otherwise constitutionally appropriate, etc.). 
    Yes, Congress has power to limit presidential war-making (or self-defense targetings) to a certain (seemingly large) extent.  See 2007 Utah L. Rev. 345, 382-88 (2007).  And, yes, Congress set some limits under the AUMF by use of the word “appropriate.”  See 2007 Utah at 400-05.  And, yes, the President and all within the Executive branch are bound by the laws of war to the exent that they are applicable.  See 2007 Utah at 382 (and John Yoo and his fellow radical revisionists are wrong. Id. at 393-99); 14 U.C. Davis J. Int’l L. 205, 240-45 (2008), and numerous cases cited.  Free download of 2007 Utah =
    http://ssrn.com/abstract=1485024

  4. Nice jobs John, Greg and Jordan.   The RPG on the White House lawn image is great.  I would imagine that under a law enforcement vision lethal force could be used in that case.  Given the number of rebellious or alleged “armed and dangerous” criminal citizens our government has killed domestically at various times, I wonder why some are so surprised by this power.   Maybe it is the painful realization that the state can kill citizens in appropriate settings and there is no redress.  It is great that we remind ourselves that our state, just like all state, are not all sweetness and light.  The heart of the Awlaki matter is the “appropriateness” of what is being done under whatever the legal regime one wishes to use.  Just like with Bin Laden. 

    If we find out afterward that we were lied to about Awlaki and that this is a charade, the question is whether a wrongful death action by his family or criminal prosecution of these leaders for murder would be possible. 

    I do not see why the impeachment and election political solutions are the only ones available for servitors of the state even if one accepts the idea of qualified immunity. 

    As part of the structure of the analysis of Neagle,the court looked at whether the force was necessary and proper.  Neagle is also interesting for one of the dissents whose author was amenable to the state prosecution being allowed to go forward rather than being stopped by the federal court.  That structure would have had Neagle assert his federal marshal role as a defense in the state court proceeding.  Another interesting alternative that was not the path taken.
    Best,
    Ben

    Best,
    Ben  

  5. Thanks Deborah and Ben.  For readers, I would like to note that an article by Professor Alford discussing the origins of the Bill of Attainder and Treason Clauses and forthcoming in Utah Law Review (currently available on SSRN) stimulated the CATO discussion.  In my opinion, it is well worth a read.

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