Feature

Obama’s Drone War

Is it legal? Is it constitutional? And is it the right policy?

By From the May 2013 issue

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Back in the days when we had them, declarations of war were short, simple, and clear. By contrast, the “Authorization for the Use of Military Force” (from here on AUMF) cobbled together by Congress and signed by President Bush after 9/11 reads more like a generic threat addressed, “To whom it may concern.” It authorizes the president “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.”

This authorization, aiming America’s military might at whomever the president deemed responsible for the attacks, was unprecedented. It created a vague legal framework for a war against no specified enemy over whom we could achieve victory, a war whose aims were so amorphous that it could continue forever. George Bush called this conflict a “global war on terror,” but the left so ridiculed the phrase that even Bush gave up on the term. Twelve years later, after more than a decade of American troops in action, we’re finally withdrawing from Afghanistan, just as we withdrew from Iraq. We have lost thousands of lives in an absurd Wilsonian pursuit of democracy in two nations where it is precluded by Islamic law.

President Obama’s drone campaign is, in some ways, a limited version of Bush’s global war on terror. (What else do you call it when the American military is fighting terrorists in places ranging from Afghanistan to Yemen, from Mali to the Philippines?) But there is also a sense in which it is very different. If it were up to Obama—and it is—this war would be fought entirely by remote control and conducted as if it were a video game.

The drones themselves—the MQ-1 Predator and the MQ-9 Reaper being the weapons of choice—are propeller-driven unmanned aircraft that fly relatively slowly (the Predator cruises at about 80 mph, the Reaper at about 230 mph) and are capable of long endurance. The Predator can fly for 24 hours without refueling, and the Reaper—heavier and faster—for about 14 hours. The Predator carries two 100-pound “Hellfire” missiles, precision-guided munitions with small warheads. The Reaper can carry a combination of Hellfires and larger, 500-pound smart bombs that are sufficient to destroy a house.

Behind them are pilots based in the U.S. and several foreign locations, who rely on satellite reconnaissance and intelligence information from those on the ground.

Drone operators—like most military people—work long hours under considerable stress. But they are non-combatants. Their lives are not at risk, and they don’t spend nights hunting terrorists in dark places. They don’t, like the Marines, patrol trails and village paths in Afghanistan, braving Taliban fire and IEDs. But as befits Obama’s video game war, drone pilots are now eligible for a combat-related medal.

The military awards many medals for bravery in combat, and many more for meritorious non-combat service. But the new Distinguished Warfare medal, to be awarded to drone operators and cyberwar experts, seems to be neither one nor the other. As the Defense Department describes it, a recipient could be a drone operator at Creech Air Force Base, Nevada, flying a drone over Afghanistan, or a soldier at Fort Meade, Maryland, thwarting a cyber attack on a defense network. Yet the Distinguished Warfare medal has been placed higher than both the Purple Heart and the Bronze Star with a “V” for valor in combat.

This rankles the warriors, as well it should. Marine Captain Harold Babbin—my father—finished World War II with a Bronze Star with the Combat “V” and a Purple Heart after having fought on Guadalcanal, Tarawa, and Iwo Jima. A non-combat medal outranking the Bronze Star could seem just only to liberals who have no regard for real warriors.

In fact, in many ways the drone campaign is liberals’ dream war: no combat troops at risk on the ground, at sea, or in the air; no casualties. It’s also neat, surgical, and conducted personally by Obama. Such direct presidential involvement in a military campaign is bizarre. In the case of Obama, it’s also uncharacteristic. (For the most part, he has distanced himself from the day-to-day conduct of his administration’s foreign policy: His new secretary of defense is fumbling through a budget crisis with no guidance from the White House.) Yet an article in the May 26, 2012, New York Times reported that “When a rare opportunity for a drone strike at a top terrorist arises…it is the president who has reserved to himself the final moral calculation.”

Wars aren’t fought one enemy at a time. Such moral “calculations” only make sense at the presidential level when the question is one of grand strategy, as was the case when Harry Truman decided to use atomic weapons against Japan.

UNFORTUNATELY, THE DEBATE on the constitutionality and legality of our drone strikes has been more political than substantive.

The president has claimed the power to kill any “operational leader” of al Qaeda, even if that person is an American citizen. He has exercised said power on several targets, the two best known being Anwar al-Awlaki, the notorious al Qaeda preacher, and Samir Khan, editor of the al Qaeda magazine Inspire. Both were U.S. citizens. Awlaki was the planner of the attempted “underwear bombing” of a U.S. airliner, and reportedly was involved in Nidal Hasan’s Fort Hood mass murder in 2009. Both were killed in a Predator strike in Yemen in September 2011.

Critics on the right and the left are concerned about the constitutionality of killing Americans without the due process guaranteed by the Fifth Amendment. On March 6, Senator Rand Paul filibustered the CIA nomination of John Brennan after the Obama administration refused to say that it could not use a drone to kill an American citizen on U.S. soil.

Paul catapulted himself into the center of the national security debate. That, of course, was too much for Senator John McCain, who begrudgingly agreed that the point was important, but said it shouldn’t be made by the “wacko birds” of the Republican Party. The problem is not with Paul but with McCain, who has been virtually the sole Republican spokesman on defense since President Bush left office, and who has been wrong more than he has been right. For example, despite the fact that our law has prohibited the government from torturing anyone since the 1950s, McCain grandstanded a new “anti-torture” law through Congress in 2005 as if it were something new. He succeeded only in making headlines and in making a clear law vague. McCain is more interested in personal promotion than serious discussion, and he needs to be pushed aside.

The constitutional point, though not obvious, is quite large, as Attorney General Holder finally conceded. Under the Fifth Amendment, no person’s life can be taken “without due process of law.” Further, Executive Order 12333, signed by Ronald Reagan in 1981, bars American intelligence agencies from performing or even participating in assassinations.

A Department of Justice white paper, leaked in January, sets out the administration’s legal argument for the drone program. It relies on the 2001 AUMF and several court opinions, and concludes that killing anyone overseas—even American citizens—is both legal and constitutional if several criteria are satisfied. First, the target must be a “senior operational leader of al Qaeda or an associated force.” Second, an informed “high-level” official of the government must determine that the target poses an imminent, violent threat to the United States. (Later it argues that, because al Qaeda is constantly planning attacks, every al Qaeda operational leader can be presumed to be an imminent threat.) Third, capturing the individual must be infeasible; and fourth, the operation must be conducted consistent with the law of war.

The white paper also contends that the lawful killing of an al Qaeda leader is not an assassination. Executive Order 12333 doesn’t define “assassination,” but the generally accepted definition limits it to politically motivated killings during peacetime. Congress’ blanket authorization of force in 2001 allows the administration to overcome this objection.

Before Awlaki was killed, his father sued to bar the government from attacking him. In a 2010 opinion, U.S. District Court Judge John Bates dismissed the case on procedural grounds. But he left the most important questions undecided. First, he alluded that the case might present a political issue beyond the court’s jurisdiction. Second, he expressly left open the question of whether the government can “order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization.”

Two Supreme Court decisions seem to make the question hazier. In July 1942, eight German saboteurs landed on Long Island and Florida in German uniform, changed quickly into civilian clothes, and were soon captured by the FBI. One was an American citizen who had sworn allegiance to Germany. Later that year, a presidential proclamation declared that any citizens or subjects of a hostile government who entered the U.S. as spies or saboteurs would be tried under military law, not in the civilian courts.

The eight were tried by a military tribunal, and six were sentenced to death. Reviewing the case, the Supreme Court held that none of them, including the purported American (who, having sworn allegiance to Germany, could have been held to have renounced his citizenship), had a habeas corpus right to be tried in a civilian court. They were, in the Court’s ruling, properly held as “enemy combatants” subject to military jurisdiction. Sixty-two years later, in Hamdi v. Rumsfeld, the Court ruled that Americans held as “enemy combatants” do in fact have the right to habeas corpus, but it said that a military tribunal would suffice.

In neither case did the Court hold that no due process was guaranteed under the Constitution. Military commissions, for all the criticism of them, clearly provide notice, opportunity to be heard in defense, and all the other indicia of due process. Some have proposed a new court to provide due process to those on Obama’s kill list, akin to the Foreign Intelligence Surveillance Act court, which secretly oversees wiretaps and other interceptions of communications under FISA. But to provide adequate due process in the case of a drone strike, such a court would need to give the target advance notice of the attack and an opportunity to oppose the application, which of course would enable the person to escape. So the question remains: Can the U.S. government kill an American citizen without due process?

The answer must be “yes,” unless the Constitution is really a suicide note. As Supreme Court rulings, including Hamdi, teach us, if the enemy combatant can be captured, he is entitled to due process, including habeas corpus. If he is within the United States, he cannot be killed except by due process of law, including the act of arrest. But as long as he remains a “free range” enemy combatant abroad, the question of whether he can be captured is not for the courts to decide. Such a military operation may be too dangerous for our soliders, too uncertain, or too likely to inflict unacceptable levels of civilian casualties. But those are questions that fall under executive power, not the courts’ supervision.

We are forced to conclude that Obama’s drone program is both legal and constitutional. But is it the right policy?

TO DRAW A CONCLUSION, we must answer two questions: Is it necessary? And is it being conducted the right way? The answer to the first question is clear. Yes, we must take lethal measures against al Qaeda and its “associated forces” everywhere we can find them. Al Qaeda, for all of Obama’s protestations to the contrary, is still growing stronger and remains very dangerous to Americans and U.S. interests abroad. In fact, the drone campaign probably is not far-reaching enough.

Our military intelligence and counterterrorism resources are both limited. Not every terrorist group is capable of attacking us, but many are and have done so in the past. It was Hezbollah—the Iranian and Syrian backed group based in Lebanon—that killed 241 Americans in the Beirut barracks bombing of 1983. More recently, Hezbollah fighters attacked Americans in Iraq. And they are probably on the ground in Libya and Afghanistan, too. Iran’s Revolutionary Guard Corps killed Americans in Iraq, and they remain one of the most dangerous terrorist forces. Unless and until we contain Iran’s nuclear arms program, Obama’s global drone war is a necessary part of our counterterrorism efforts.

The second question—whether drone operations are being conducted appropriately—is larger and more important. Strikes on high-level al Qaeda leaders, aimed at decapitating the organization, can reduce our vulnerability to attack, but they can’t and won’t defeat the enemy. That is the primary defect in Obama’s policy.

We cannot defeat Islamist extremism by killing scattered terrorist leaders. If we are to win, we must first identify the enemy and fight in a manner calculated to defeat the ideology that drives him. We are not, and should not be, at war with every believer in Islam. But there is no possibility to peacefully coexist with Islamist terrorists and those nations that harbor them.

The answer is to meet Islamists in ideological battle. Our object should not be to win hearts and minds, but to remind the world of the bankruptcy of an ideology that refuses basic human freedoms. George Bush shied away from the ideological war, which has resulted in more than a decade lost, and Obama has preemptively surrendered.

Three years ago, Obama banned the terms “Islamic extremism” and “jihad” from the official statement of our national security strategy. If we can’t use these terms to describe the enemy—even the ones he uses to describe himself—how can we know his mind and defeat his beliefs? In short, under the policies of the Obama administration, we can’t. 

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About the Author
Jed Babbin served as a Deputy Undersecretary of Defense under George H.W. Bush. He is the author of several bestselling books including Inside the Asylum and In the Words of Our Enemies. You can follow him on Twitter @jedbabbin.