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Constitution Check: How transparent is the legal basis for drone strikes?

May 10, 2012 by Lyle Denniston


Constitution Check: Fact-checking the newsIn a continuing series, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: the Obama Administration’s public defense of the legality of drone strikes to kill terrorism suspects.

The statement at issue:

“We reject the notion that any discussion of these matters is to step onto a slippery slope that inevitably endangers our national security.  Too often, that fear can become an excuse for saying nothing at all – which creates a void that is then filled with myths and falsehoods….So let me say it as simply as I can.  Yes, in full accordance with the law—and in order to prevent terrorist attacks on the United States and to save American lives – the United States Government conducts targeted strikes against specific al-Qaeda terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones…These targeted strikes are legal.”

– John O. Brennan, President Obama’s assistant for counterterrorism, in a speech in Washington on April 30, discussing for the first time in public the justification for the program of “targeted killing” using unmanned drones against designated terrorist figures.

We checked the Constitution, and…

The Obama Administration obviously has authority under the Constitution to limit the disclosures it is willing to make about highly secret policies used to deal with terrorism threats.  But what is still lacking is a candid public discussion of the constitutional justification for one such policy: the use of “drones” to kill specific individuals designated by the government as direct threats to U.S. security but whom the U.S. has not been able to capture. (Capture, it appears, is the preferred approach, to help gather intelligence.)

One of President Obama’s key advisers on terrorism, John O. Brennan, made clear in his April 30 speech that the Administration is expanding a public campaign of what he called “transparency” about the use of drones.  In his widely publicized speech, Mr. Brennan offered an unusually candid portrayal of how those targeted individuals are chosen, and how the program is kept within what he insisted were very tight limits.

But missing from the speech was a detailed explanation of the White House official’s summary remarks that the drone policy was “in full accordance with the law” and that the strikes “are legal.”  In fact, that was the briefest part of his speech.

Here, in its entirety, is the legal explanation he gave: “As a matter of domestic law, the Constitution empowers the President to protect the nation from any imminent threat of attack.  The Authorization for the Use of Military Force – the AUMF – passed by Congress after the September 11th attacks authorizes the president ‘to use all necessary and appropriate force’ against those nations, organizations and individuals responsible for 9/11.  There is nothing in the AUMF that restricts the use of military force against al-Qaeda in Afghanistan.”  (Beyond domestic law, Mr. Brennan made a similarly brief reference to international law and the law of war.)

With no more than that, the April 30 speech would seem to have done little to fill a “void” about the President’s authority to carry on such a policy.   For example: how does the Constitution indicate what an “imminent threat of attack” would be, sufficient to justify the drones policy?  And, for another example, how does a drone policy qualify – in a legal sense – as “necessary and appropriate force”?  Further, which “individuals” can legally be targeted?  And, how can a president be held accountable for such a policy?

It has been rumored, for months, that there is at least one secret memorandum, written by Justice Department lawyers, that reportedly examines the Constitution, domestic law and other legal norms, and finds among them clear authority for the drones policy, even as it would apply to a U.S. citizen designated as the source of an “imminent” threat.  But Administration officials have only hinted that there is such a document, and they have steadfastly refused to release publicly any legal document that might bear upon the policy.

It seems quite plain that legal argument, by and of itself, is not a national security secret.  Any memorandum that made legal arguments could be gone over carefully by security classification experts, and then released in a redacted form, without sensitive data.  That is done several times a month, in fact, as the federal courts have reached decisions on whether to release foreign nationals from detention at Guantanamo Bay.  Sometimes, whole pages in court opinions are blacked out, and yet they still make sense in discussing legal concepts.

The Administration’s lawyers fought successfully in a federal court in Washington in 2010, using the doctrine of “state secrets,” to avoid having to make a legal defense of the drones policy when it was challenged by the father of the Yemeni cleric, Anwar al-Awlaki.  At the time of that failed lawsuit, Awlaki was said to be on the targeted list.  He was, in fact, killed by a drone strike in Yemen last September.

There remains, in public conversation, a good deal of uncertainty about the legality of the drones policy, and it may be that more “transparency” on that subject would not end the controversy.  However, it at least might steer the conversation toward a calmer legal discourse.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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