The drone strike campaign of the Obama administration, orchestrated by CIA director nominee John Brennan, has caused public outcry over the ability of the president to unilaterally carry out attacks on suspected terrorists. However, if Congress has authorized the president to kill enemy combatants at will, should he be able to do so? What if the individual in question is a U.S. citizen? To properly answer these questions, the legislative foundation, the legal justifications, and the practical implications must be considered.
The joint resolution Authorization for Use of Military Force (AUMF), passed on September 18, 2001, states, “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.”
It is clear that the president is authorized by congress to take actions he deems necessary to protect the U.S. from future acts of international terrorism. The use of drones reasonably falls under the power to use “necessary and appropriate force” given to the president.
The white paper released by the Department of Justice provides three legal justifications for the killing of an American citizen who is a senior operation leader of or an associated force of Al-Qaeda: “(1) An informed high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the United States, (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible, (3) the operation would be consistent in a manner consistent with applicable law of war principles.”
Regarding due process rights, the court ruled in Tennessee v. Garner, “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”
Likewise, if an officer is able to fire on a citizen domestically without being constitutionally obligated to apprehend them, the same rationale should hold when the president is targeting enemy combatants that are American citizens overseas.
Through international law, Article 51 of the UN charter says that nothing in the charter shall impair the individual or collective right to self-defense. Therefore, in both the domestic and international law arenas, the U.S. can legally undertake targeted killings through the use of drones for the purpose of self-defense.
Questions regarding national sovereignty can also be raised. In the case of Yemen, President Hadi has acknowledged that he personally approves each drone strike. Since the U.S. consistently gets approval from the Yemeni president, the president is not violating Yemen’s sovereignty when carrying out attacks. In states such as Pakistan, where the drone program is supposedly privately approved by the government but condemned in public, the president can make the determination that the host nation is unwilling or unable to suppress the threat on the ground. In these cases the US is once again acting in self-defense by carrying out these targeted killings and within the bounds of international law.
From the practical perspective, the use of drones by the president provides the U.S. a tactical advantage over its enemies. The military does not have to sacrifice the lives of individual soldiers and can take action against terrorists. Simultaneously, they are very cost-effective and will provide an avenue for the Defense Department to tighten its budget. The US public also supports drone strikes. However, when the loss of civilian life is brought into the equation, opinion changes substantially. These are all considerations that the president as commander-in-chief of the armed forces should be trusted to take.
To say the president should be able to kill at will sets a dangerous precedent for the power of the executive. Nonetheless, the commander-in-chief is constitutionally able to exercise his control of the armed forces when authorized by congress. Presently, this is provided by AUMF. Under current law, the president should be able to use military force against terrorists that pose a threat to the U.S.
If congress believes the president should be more transparent regarding the drone program, it should revisit AUMF and narrowly tailor the language to specify the president’s jurisdiction. Otherwise, as the law stands, the president is empowered “to prevent any future acts of international terrorism,” and should be able to kill in the name of national security.