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Angus King’s Ineffective Drone-Court Proposal

After being in Congress for less than a month, Angus King, Independent Senator from Maine, has made a proposal to Congress regarding the U.S. drone program that has caught so much attention.  Seeking to, in his opinion, add oversight to the drone program, Sen. King has proposed:

A judicial review process for targeted killings of Americans, similar to one used to review electronic surveillance of Americans.

The recent controversy surrounding the White Paper released by NBC outlining the U.S. drone program that can target American citizens abroad suspected of planning terrorist attacks. The program requires little in the way of concrete evidence to target such American citizens and has drawn criticism from across the political spectrum as being unconstitutional and immoral. Sen. King’s proposal attempts to address some of the criticisms of the program.

However, while one can accept the promise of a court to review the decisions of those selecting targets, referencing the Foreign Intelligence Surveillance Court (“FISC”) charged with reviewing warrant requests wiretaps to gather intelligence on foreign agents within the U.S.  The court, together with the program, was highly controversial.

Between 2002-2011, out of the thousands of requests for warrants, the court rejected 11 of those requests.  Moreover, according to an article by Julian Sanchez at Cato:

Americans are being told that there’s no need to worry about the broad surveillance programs authorized by the controversial FISA Amendments Act of 2008. Yet a report from Wired paints a more disturbing picture: National Security Agency surveillance enabled by the FAA was found “unreasonable under the Fourth Amendment” by the secretive Foreign Intelligence Surveillance Court “on at least one occasion.” The court also found that the government’s implementation of its authority under the statute had “circumvented the spirit of the law.” Despite these troubling rulings from a court notorious for its deference to intelligence agencies, Congress is so unconcerned that lawmakers don’t even want to know how many citizens have been caught up in the NSA’s vast and growing databases.  (emphasis added).

In a separate article, Wired reported last year on two Democratic Senators seeking to have the FISC rulings declassified in order to review how the court interpreted sections of the Patriot Act.  In a letter to Eric Holder, the Democratic Senators, Ron Wyden and Mark Udall, wrote:

We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act.

As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.

The information sought by Sens. Wyden and Udall has not been declassified, and the rulings of the FISC remain out of the public’s sight.  In a May, 2012 letter to Dianne Feinstein and Saxby Chamblissthe ACLU wrote:

There is little in the public record about how the government implements the FAA, but what little there is reveals substantial violations of the law. The New York Times reported in April 2009 that the National Security Agency “intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress” and “engaged in ‘overcollection’ of domestic communications of Americans” which was “significant and systemic.”Documents released in response to an ACLU Freedom of Information Act request confirmed recurring violations through March 2010, the last date for which reports were produced at the time of the FOIA release.  Though heavily redacted, the documents suggest that the government is not always able to determine whether a target is a US person and therefore entitled to heightened protections. They also confirm violations of both the targeting and minimization procedures that are supposed to protect Americans’ privacy.

King believes that such a review court would work, as it would requrie the federal government to:

Demonstrate the person was an enemy combatant and there was some imminent threat—the kind of standards they have told us they impose on themselves.

Conversely, Jameel Jaffer, deputy legal director of the ACLU, stated that although:

Judicial oversight is good. But we are skeptical that a new secret court system is necessary.

King might actually believe that his proposal will offer actual “oversight”, though that expectation is a bit optimistic. A FISC court in this instance would, given the track record of the FISC rubber stamping warrant applications for wiretaps, likely offer no appropriate oversight or check on the government. Lastly, like the NSA wiretap program, the U.S. drone program operates outside the review not only of the American public but the public’s chosen representatives, and no secret court will change that.

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Obama Adopts the Bush Doctrine

IN the wake of the September 11, 2001 attacks on the World Trade Center, then President George W. Bush announced his War on Terror. His actions were authorized by one of the more controversial aspects of the Bush Administration; the Authorization to Authorization for the Use of Military Force (AUMF). The AUMF was passed with bi-partisan support in Congress, and signed into law by Bush one week after the attacks on the World Trade Center and Pentagon, and with it gave President Bush broad power to conduct U.S. foreign policy.

Perhaps most concerting about the AUMF is this section:

(a) IN GENERAL- That 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. (emphasis added)

The two emphasized sections highlight the broad discretion afforded Bush.  First, it was within his sole discretion to determine which nations, persons, or organizations are to be the target of U.S. military force.  Second, “any future acts of international terrorism against the United States” again granted Bush broad discretion.  Most notably, there is little definition of what constitutes international terrorism, and, more disconcertingly, there is not end date to this piece of legislation -”any future” is the only time frame used.  In other words, one could read the AUMF has giving the office of the Presidency authorization to conduct the war on terror indefinitely.

Moreover, and perhaps most controversially, was the preemptive authority granted the President–”to prevent.”  Preemptive war caused many legal issues, both internationally and domestically, for the Bush Administration. There is nothing in the UN Charter, nor any subsequent UN resolutions, that directly supports the notion that preemptive war is legal under international law.  Moreover, legal scholars questioned whether preemptive war was beyond the Constitutional authority conferred to the federal government.

In any event, the Bush Administration undertook military operations in Iraq and Afghanistan, backed by the authority of the AUMF in the face of Democratic (and some Republican) opposition.  Of course, much of this came after Democrats had joined their Republican counterparts in approving the AUMF–think Hilary’s infamous “if I knew then what I know now” speech.

Now, several years later, the Obama Administration is in office, in large part because of its Change and Hope campaign.  The thrust of the campaign was to offer Americans an alternative to the Bush years, specifically on the issue of foreign policy (though issues with the economy were coming into play in the waning months of the campaign).  However, increased drone strikes, military intervention in Libya and Yemen, and questions concerning when U.S. military intervention in Afghanistan will cease have called into question whether Obama has fulfilled his 2008 promise to deviate from the Bush Doctrine.  And now we come to the recently released White Paper.

Benjamin Wittes and Susan Hennessey at Lawfare attempt to minimize the White Paper and its implications in a ‘oh, nothing to see here folks, just move along’ tone:

Okay, everyone, take a deep breath. Chill out. The DOJ’s “White Paper” on targeted killing is no big deal. Really . . . 

The White Paper, however, had been drafted, and while it was never released publicly, it was apparently given to people on the Hill. Like Holder’s speech, it tracks the OLC memo—and it goes into somewhat more detail on certain points than Holder did. But here’s the thing: It’s the same argument. Nobody who has read and understood Holder’s Northwestern speech can reasonably be surprised by anything about this document. The argument is old hat—and we have known for almost a year that this was the administration’s view.

In other words, media reports are over-reactionary  not because of some misreading of the White Paper, but because the White Paper simply restates the Administration’s position.  Oh, well that’s comforting.  Wittes and Hennessey do take issue with one substantive media criticism of the White Paper:

The more responsible reporters have been reasonably careful. Michael Isikoff’s original story for NBC News calls the document a “confidential Justice Department memo,” and a “confidential Justice Department ‘white paper.’” Isikoff goes one to say that, “Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel.” Isikoff then says, rather more tendentiously, that the document authorizes the killing of U.S. citizens who are top operational Al Qaeda figures “even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.” This latter point is, to put it mildly, a stretch. (emphasis added).

Is it?  Here is the relevant language of the White Paper:

Certain aspects of this legal framework require additional explication.  First, the condition that an operation leader present an “imminent”threat of violent attach against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interest will take place in the immediate future.  Given the nature of, for example, the terrorist attacks on September 11, in which civilian airliners were hijacked to strike the World Trade Center and the Pentagon, this definition of imminence  which would require the United States to refrain from action until preparation for an attack are concluded would not allow the United States sufficient time to defend itself.  The defensive options available to the United States may be reduced or eliminated if al-Qa’ida operatives disappear and cannot be found when the time of their attack approaches.   Consequently, with respect to al-Qa’ida leaders who are continually planning attacks, the United States is likely to have only a limited window of opportunity within which to defend Americans in a manner that has both a high likelihood of success and sufficiently reduces the probabilities of civilian casualties . . .

By its nature, therefore, the threat posed by al-Qa’ida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat, making the use of force appropriate.  In this context, imminence must incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans . . .

An individual poses an “imminent threat” of violent attack against the United States where the operational leader of al-Qa’ida or an associated force and is personally and continually involved in planning terrorist attacks against the United States.  (citations omitted) (emphasis added).

MQ-1L Predator UAV armed with AGM-114 Hellfire...

MQ-1L Predator UAV armed with AGM-114 Hellfire missiles (Photo credit: Wikipedia)

There are two issues here.  First, what constitutes continual involvement in planning is a little vague–an operational leader or an associated force.  The issue of what constitutes an associated force was threshed out in Hamlily v. Obama 616 F.Supp. 2d 63 (D.D.C. 2009).  There, the government argued that associated forces should include those:

[I]ndividuals who “substantially supported” any of those organizations.

Although the Court rejected the government’s argument, it stated the following:

Despite the Court’s rejection of “substantial support” as an independent basis for detention, the concept may play a role under the functional test used to determine who is a “part of” a covered organization . . .

For example, if the evidence demonstrates that an individual did not identify himself as a member, but undertook certain tasks within the command structure-20-or rendered frequent substantive assistance to al Qaeda, whether operational, financial or otherwise, then a court might conclude that he was a “part of” the organization. Of course, such determinations are highly fact-intensive and will be made on an individualized, case-by-case basis, applying the conclusions reflected in this decision.

In other words, the Court offers no working definition of associated force in its opinion, and instead, defers to a later fact finder to determine whether someone offering substantial support to a terrorist organization is an “associated force.”  However, the Hamlily decision dealt with the issue of detaining persons, where a fact finder can, after a governmental decision is made, make a determination on the facts and offer the accused relief.  Conversely, in the context of the White Paper and drone strikes, there is little a fact finder can do after the government makes its determination in the way of relief.  Moreover, it is disconcerting that the government is likely to make hasty decisions regarding whether a person is an associated force or just offering support.  As the White Paper states (and is quoted above):

[T]he United States is likely to have only a limited window of opportunity within which to defend Americans in a manner that has both a high likelihood of success . . .

The second issue that is of concerns brings into the background of the AUMF and the Bush Administration. The White Paper explicitly relies on the AUMF for authority:

The United States is in armed conflict with al-Qa’ida and its associated forces,  and Congress has authorized the President to use all necessary and appropriate force against those entities.  In addition to the authority arising from the AUMF, the President’s use of force against al-Q’aida and associated forces is lawful under other principles of U.S. and international law, including the President’s constitutional responsibility to protect the nation and the inherent right to national self defense recognized in international law.  

The troubling part about imminence is this reference to the AUMF. The AUMF, as noted above, was used by the Bush Administration as Congressional authorization to conduct preemptive war and strikes.  Moreover, the White Paper is discussing imminent threats–that is, threats that are to happen but have not yet happened.  Clearly, the Paper is discussing preemptive strikes.  What is troubling about that preemption is not just that it is authorized, but that the government has broad discretion to make the determination as to what constitutes imminence.  Again, this goes back to the planning of attacks.  How far along does the planning have to proceed to constitute an imminent threat?  Is there a test for likelihood the plan will succeed?  Even be implemented?  Is there any distinction to be drawn between a well-funded and capable terror cell, and a basement full of pissed off locals letting off steam with no real intent or capability to pull off an attack?

Given the recent missteps of the Bush Administration vis-a-vis Iraq’s WMD program, one cannot suggest that the government will act on the best intelligence available and expect the public to be put at ease.  The White Paper suggest (if not overtly states) that the Obama Administration can, according to the DOJ, conduct military operations abroad with the same unfettered discretion that the Bush Administration did, and in fact, adopting the Bush Doctrine.

What if it was Bush’s drone policy?

Official photographic portrait of US President...

Official photographic portrait of US President Barack Obama (born 4 August 1961; assumed office 20 January 2009) (Photo credit: Wikipedia)

Throughout Obama Administration’s four years, there has been a lot of back forth between the left and the right about who is to blame for the current economic situation, U.S. foreign policy (particularly regarding Iraq and Afghanistan), and so forth.  The left believes that the Administration inherited economic and foreign policy messes too large to straighten out in four years.   The right believes that the Administration is not owning up to its own policy missteps  and is constantly heaping blame onto George W. Bush.  Moreover, the right accuses the media acting as a mouthpiece for the White House in apologizing for the Administration, where it had vilified the previous Administration.

To be sure, the change in leadership in D.C. in 2008 created a bit of a political quandary for leaders of both parties.  In base generalities, Republicans had to assume the position of the Democrats from just a few years ago, and vice versa.  Democrats, previously bent against the war, now had to defend the continuation of U.S. operations in Iraq and Afghanistan, as well as new combat operations in Libya, and, most importantly, increased use of drone strikes.

Across the aisle, Republicans, trumpeters of U.S. foreign policy under the guise of a “War on Terror,” now had to question the logic of U.S intervention in the Middle East, namely Libya, while questioning the U.S. exit strategy from Iraq and Afghanistan.  This not to say that the leadership change created incongruancies in the arguments offered by Republicans and Democrats, but it did show the political game being played vis-a-vis foreign policy.

In a piece of the USA Today examines that game a little further; more accurately, it questions how then Senator Obama and the rest of the Democratic leadership would had responded had the DOJ drone memo under the previous administration.

The leak of a document on the Obama administration’s drone strike policy has some people in Washington playing the “what-if” game.

What if President George W. Bush’s administration had written a such a document on the legality of drone attacks, even on U.S. citizens working with alleged terrorists overseas?

Former Bush press secretary Ari Fleischer tweeted: “Good thing (Department of Justice) drone memo didn’t come out in 2008. Candidate Obama would never have put up with stuff like that going on.”

Candidate Obama and Democrats did indeed criticize Bush-era counter-terrorism policies, such as warrant-less wiretaps and enhanced interrogation techniques (water boarding).

Aides to President Obama said he is continuing the war on terrorism, authorized by Congress shortly after the attacks of Sept. 11, 2001.

Obama “takes the absolute necessity to conduct our war against al Qaeda and its affiliates in a way that’s consistent with the Constitution and our laws very seriously,” said White House press secretary Jay Carney.

The spokesman added that “it is a matter of fact that al Qaeda is in a state of war against us and that senior leaders, operational leaders of al Qaeda are continually plotting to attack the United States, plotting to kill American citizens as they did most horrifically on September 11, 2001.”

The debate over Obama’s drone strike policy may not end soon, as noted by the Associated Press:

“Uncomfortable with the Obama administration’s use of deadly drones, a growing number in Congress is looking to limit America’s authority to kill “suspected terrorists, even U.S. citizens.” The Democratic-led outcry was emboldened by the revelation in a newly surfaced Justice Department memo that shows drones can strike against a wider range of threats, with less evidence, than previously believed.

“The drone program, which has been used from Pakistan across the Middle East and into North Africa to find and kill an unknown number of “suspected terrorists,” is expected to be a top topic of debate when the Senate Intelligence Committee grills John Brennan, the White House’s pick for CIA chief, at a hearing.”

It is an interesting question not because it somehow vindicates Republicans and excoriates Democrats regarding foreign policy.  Rather, it sums up the contrast of the two parties’ respective positions pre-and post-2008, and highlights how the Obama Administration has with little variance from the Bush Doctrine. Certainly, the intervention in Libya was under the auspices of NATO, which implicitly had more international support than the Iraq War.  However, drone strikes persist, Gitmo remains open, the National Defense Authoriation Act (NDAA) was reauthorized (again) as was the Patriot Act, Rendition is still carried out, invocation of Executive Privilege vis-a-vis Fast and Furious,  and so on.

Obviously the economy is a pressing domestic matter, which will dim a bit the spotlight on foreign policy issues.  However, dim is not the same thing as off, and the media has done little to hold the Administration accountable or at least acknowledge the similarities between the Bush and Obama Administrations.

National Defense Authoriation Act (NDAA) | lisaleaks

DOJ memo justifies drone kills of U.S. citizens abroad

The White House and its critics faced off  over the legality of drone strikes to kill U.S. citizens abroad, in a likely preview of arguments that will be raised during this week’s confirmation hearing for President Barack Obama’s choice to head the CIA.

The disclosure of an unclassified Justice Department memo laying out the legal framework for the U.S. government’s ability to attack its own citizens drew criticism from civil liberties groups. But the White House strongly defended the controversial policy as legal and ethical.

The unclassified memo, first obtained by NBC News, argues that drone strikes are justified under American law if a targeted U.S. citizen had “recently” been involved in “activities” posing a possible threat and provided that there is no evidence suggesting the individual “renounced or abandoned” such activities.

White House spokesman Jay Carney defended current U.S. drone policy, saying they are used to mitigate threats, stop plots, prevent future attacks and “save American lives.”

“These strikes are legal, they are ethical and they are wise,” he said.

Civil liberties groups expressed concerns, while U.S. lawmakers called on the White House to release more of its legal underpinning for the assertion that the president has the power to kill U.S. citizens abroad without trial.

The U.S. government has dramatically increased its use of drone aircraft abroad in recent years to target al Qaeda figures in far-flung places from Pakistan to Yemen.

“My initial reaction is that the paper only underscores the irresponsible extravagance of the government’s central claim,” Jameel Jaffer of the American Civil Liberties Union wrote on the ACLU’s blog. “Even if the Obama administration is convinced of its own fundamental trustworthiness, the power this white paper sets out will be available to every future president.”

The use of drones figures to be a prime topic for White House counterterrorism chief John Brennan when he faces the Senate Intelligence Committee in a confirmation hearing on his nomination to become CIA director.

The document was disclosed as a bipartisan group of U.S. senators called on the Obama administration to release to Congress “any and all” legal opinions laying out the government’s understanding of what legal powers the president has to authorize the killing of American citizens.

The senators who signed the letter, including members of the Senate Intelligence Committee, said the administration’s cooperation would “help avoid an unnecessary confrontation that could affect the Senate’s consideration of nominees for national security purposes.”

One national security official said the leak of the Justice Department memo may have been timed to blunt such congressional demands for the release of additional documents.

Senator Dianne Feinstein, the Democrat who chairs the Intelligence Committee, said in a statement that she had been calling on the administration to release legal analyses related to the use of drones for more than a year.

Feinstein said the document obtained by NBC had been given to congressional committees last June on a confidential basis, and that her committee is seeking additional documents, which are believed to remain classified.

Attorney General Eric Holder said he was concerned that the release of more documents could put sources and operations at risk.

“We’ll have to look at this and see how, what it is we want to do with these memos,” Holder said.

There is “a real concern to reveal sources, to potentially reveal sources and methods and put at risk the very mechanisms that we use to try to keep people safe, which is our primary responsibility,” he said at a news conference.


In the unclassified Justice Department paper, the authors laid out three conditions that the executive branch should meet before a drone strike is ordered.

A top U.S. official must determine that the targeted person “poses an imminent threat of violent attack against the United States,” cannot be captured, and that the strike “would be conducted in a manner consistent with applicable law of war principles,” the department said.

The memo is drawing new attention to the 2011 strike that killed U.S.-born Anwar al-Awlaki, who U.S. investigators say was a leader of al Qaeda’s Yemen-based affiliate and linked to a botched plot to blow up a U.S. airliner with a bomb hidden in a man’s underwear on Christmas Day 2009.

Targeted killings carried out by remotely piloted unmanned aircraft are controversial because of the risks to nearby civilians and because of their increasing frequency. The United Nations recently launched an investigation into their use.

Hina Shamsi of the ACLU, which has sued for more information on the drone program, called the memo “profoundly disturbing” and “a stunning overreach of executive authority.” Hina Shamsi of the ACLU, which has sued for more information on the drone program, called the memo “profoundly disturbing” and “a stunning overreach of executive authority.”

Shamsi, head of the ACLU’s National Security Project, in a statement called on the Obama administration to release what she said was a 50-page classified legal document on which the 16-page summary is based.

“Among other things, we need to know if the limits the executive purports to impose on its killing authority are as loosely defined as in this summary, because if they are, they ultimately mean little,” she said.

The ACLU will also file court papers seeking to block government efforts to dismiss the group’s lawsuit challenging the 2011 killing of Awlaki and two other Americans in Yemen, the statement said.

Meanwhile, former U.N. Ambassador John Bolton stated to Real Clear Politics that the Obama Administration’s actions are Constitutional:

Former U.N. ambassador John Bolton says President Obama’s drone program “appears to be consistent with the policies of the Bush administration.”

“If you assess the threat of international terrorism to be the equivalent of war, then you’re in the ‘Law of War’ paradigm. This is not like robbing the local 7-Eleven, where you resort to the law enforcement paradigm,” said Bolton, who added that Article II | U.S. Constitution gives this power to the president in a time of war.” [Except in those areas in which the Constitution places authority in Congress.

Drone strikes have been highly controversial for numerous reasons, including issues of potential human rights violations under international law, and Constitutional violations under domestic law. Last year the families of three U.S. citizens killed by drone strikes filed a lawsuit against the U.S. alleging the strikes were:

Were unlawful and violated their constitutional rights by not affording them due process, according to a lawsuit filed by their relatives . . . 

Part of a broader programme of deliberate and premeditated killings by the United States, which rely on “vague legal standards, a closed executive process and evidence never presented to the courts”.

The lawsuit was filed by the ACLU, which responded to the DOJ memo:

The American Civil Liberties Union (ACLU) said the white paper was a “pretty remarkable document”.

Jameel Jaffer, deputy legal director of the ACLU, said in a blog post the paper revealed “both the recklessness of the government’s central claim and the deficiencies in the government’s defense” of its drone strike policy.

“This sweeping authority is said to exist even if the threat presented isn’t imminent in any ordinary sense of that word, even if the target has never been charged with a crime or informed of the allegations against him, and even if the target is not located anywhere near an actual battlefield,” Mr Jaffer added.

Much like the torture memos haunted the Bush Administration, it is likely this DOJ memo will leave the Obama Administration open to a bevy of criticism for how it conducts its foreign policy. The Administration has already come under fire for its use of drone strikes.