World-Wide Military Concerns: From Drones to Damsels

Scraps of world-wide military transformations litter the news, leaving a careful observer with one uneasy and exciting implication: CHANGE. News of ground warfare has been largely replaced by flashy articles about “cyber warfare.” The Army slashed 12 combat brigades across the country, begrudgingly announcing the plan to reduce the number of active duty soldiers by 80,000 in four years (long enough a wait to pray for a Republican president to rescue their budget).

Meanwhile in Afghanistan, their infant Air Force is gleaning every drop of information they can from their Western trainers. NATO will end their training aid in 18 short months. Gen. Shir-Mohammad Karimi, the Afghan National Army chief of staff told 13 flight school grads, “Having all these U.S., coalition forces, advisers, instructors and contractors around us is a golden opportunity for all of us… Make sure you do not [squander] learning enough skills from them…”

Meanwhile in Asia, a collection of countries (including China, India, and Indonesia) sit poised to become the leading coalition of military spending. The US has been permitting (resentfully) the attrition of the budget to a mere $707.5 billion (not including FBI counter-terrorism (who do earn their budget!!! …a little prejudiced.), International Affairs, defense-related Energy Dept., Veterans Affairs, Homeland Security, satellites, veteran pensions, and interest on debt from past wars). However, Asian countries are prepared to meet US military spending by 2021, anticipating an increase in spending of 35%.

Meanwhile in Israel, they stand prepared to surpass the US as the largest exporter in the world of unmanned drones this year.

So where is the victorious “meanwhile in the US” blurb? What are we overtaking? More importantly, WHAT ARE WE WINNING? Well, folks, once more we are winning the make-the-same-arguments-we’ve-been-making-for-a-decade award. Huge trophies will be delivered to the Navy SEALs, Army Rangers, Delta Force and Green Berets as soon as they can fit it in the budget. A two-year study is to be conducted. Although we hear the typical regurgitated physical-requirements argument against the inclusion of women (not surprised face), I was sickened to learn we’re still talking about the “cohesion and morality” of the group (Army Maj. Gen. Sacolick’s words). Trust me, the declarations are ripe with phrases fretting over “social implications” and “distractions.” I kid you not: “Distractions.” Once more women are to be confined from a respected and desired combat position because of men. Well, you can keep your worries because like it or not gender equality is coming for you, special ops. It may not be today. It may not be tomorrow! It may not even be in the year 2015 after your comprehensive and oh-so-fair study. But it will be soon. And for the rest of the military’s life!

Chelsea Perdue, Research Fellow
Center for Policy and Research

Ben Emmerson talks drones with Lawfare

UN Special Rapportuer for Human Rights and Counter-Terrorism Ben Emmerson spoke with Lawfare’s Benjamin Wittes and Ritika Singh about his study of US drone policy, focused primarily on our operations in Pakistan (podcast available from Lawfare: see episode 31). I have expressed some skepticism of his objectivity in past posts (here and here), but also some optimism (here). Having just listened to Emmerson’s 40 minute discussion, I now have a great deal of respect for the man’s commitment to objectivity.

In the discussion Emmerson admits to having initially approached the subject from not only a human rights perspective, but also with the preconception that the US was not at war at all. His views on these issues have become both tempered by his investigation and discussions with officials in Pakistan and the US, and also quite nuanced. Once example of this can be found in his explanation of his comments earlier this year in which he is broadly quoted as saying that Pakistan has not consented to US drones attacks on its soil. His elaboration of how he came to this position is quite interesting, and well worth listening to (it starts at minute 23).

Far from simply accepting the assertions of Pakistan’s civilan officials that they have repeatedly protested against drone strikes, Emmerson starts his analysis from the passage of a law restricting consent to the use of drones by officials of the Pakistani government. Since the US and the international community are interested in promoting democracy and the rule of law, Emmerson argues, such a restriction, passed by the elected representatives of the Pakistani people should set the basis of consent. To allow back-room deals to trump a duly enacted law would be anathema to the promotion of democracy.

Emmerson then preempted the ever-realist Wittes’ rebuttal that the democratic government of Pakistan is not the effective government with regard to matters of national security and foreign affairs by pointing out that while Pakistan is clearly a flawed democracy, it is also by the same token a fragile democracy that should be nurtured rather than subverted in the name of expedience.

Another point made by Emmerson which displays his objectivity and thoughtfulness relates to the perception that drones could unduly high civilian casualties. Emmerson cited  UNAMA statistics kept over the last decade on civilian casualties from various kinds of ordinance. And while that data clearly shows that drone attacks in Afghanistan tend to cause substantially fewer civilian casualties than attacks by fixed-wing air craft, the perception of the the majority of Afghans is the exact opposite: that drones are prone to killing innocents. He therefore wonders (without concluding) whether drone warfare is in the long run more harmful than other means of achieving similar ends.

Other points warrant mention as well, but in all, I am very impressed with Ben Emmersion’s intellectual honesty and objectivity. I now truly look forward to his report, due to be produced in September.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

 

In spite of ongoing debate, drone strikes are declining

While the debate over the legality of the US drone campaign in various places around the world rages on, Scott Shane of the New York Times pointed out yesterday that drone strikes worldwide are actually on the decline. They report that the number of strikes in Pakistan, where drones are most actively used, actually peaked back in 2010. In Yemen, where drone strikes served to decapitate the leadership of Al Qaeda in the Arabian Peninsula, the number spiked dramatically in 2012, but has since dropped off again. Meanwhile, no strikes have been reported in Somalia for more than a year.

The cause of this decline, according to NYT sources, include the diminishing list of high-level Al Qaeda targets, which they attribute to the success of the drone program, as well as other factors like weather and diplomatic concerns. However, Shane suggests that another factor may be the growing appreciation of the costs of the program. This is certainly a concern, especially as Al Qaeda uses the strikes as a propaganda tool and, thanks to the Urdu language press, many Pakistanis report to live in fear of drones (despite never having seen one). I, myself, have long argued that the drone program is legitimate and beneficial to US interests, with the caveat that we find a way to transition to law enforcement methods  within a reasonable amount of time. The only problem is figuring out how to do that in places like rural Pakistan, Yemen, and Somalia.

Hopefully, this is a topic that President Obama may address national security speech scheduled to take place tomorrow at the National Defense University. Unfortunately, while I have a lot of faith in President Obama on many fronts, I would be surprised if he goes beyond a mere recitation of the drone strike numbers, and actually proposes a way out.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

President Obama to give speech on counterterrorism policy, drones, and GMTO

President Obama is scheduled to deliver a speech on Thursday at the National Defence University on the administration’s counterterrorism policies, and how it intends to bring those policies in line with his long-standing pledge to honor the rule of law.

According to a White House official, speaking anonymously to the Washington Post Saturday, President Obama will “discuss our broad counterterrorism policy, including our military, diplomatic, intelligence and legal efforts.”

“He will review the state of the threats we face, particularly as the al-Qaeda core has weakened but new dangers have emerged,” the official said. “He will discuss the policy and legal framework under which we take action against terrorist threats, including the use of drones. And he will review our detention policy and efforts to close the detention facility at Guantanamo Bay.”

This speech could go some way toward fulfilling the promise that President Obama made in his 2013 State of the Union address, in which he proclaimed that his new administration would “ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.” Many, including myself, have been disappointed with the level of transparency the administration has maintained regarding national security efforts over the last 4 years or so. 

The speech comes at a time of increasing unrest in the national security arena. Indeed, it has already been delayed due to the hunger strike at the Guantanamo Bay Detention Facility and the brouhaha over the Justice Department’s subpoena of the AP’s phone records. While the events at Guantanamo Bay can to some degree be attributed to the policies of the Bush administration (in opening the prison) and to Congress (in refusing to allow it to close), the AP seizure is something that rests firmly in Obama’s lap, and is indicative of his Justice Department’s approach in general. Rather than increasing transparency, Obama’s Justice Department has been ruthless in suppressing leaks and punishing leakers.

While I have no sympathy for the likes of Bradley Manning, the number of prosecutions related to national security leaks has been higher under Obama than his predecessors, with at least some chilling effect on the “unofficial transparency” that leaks tend to serve. And while Obama has recently pushed for a new Federal shield law to protect reporters’ sources, his downright schizophrenic approach to transparency has been a bitter disappointment. Hopefully, Thursday’s speech will help to alleviate that disappointment.

 

 

Drone Courts and Transparency

On March 31, Greg McNeal, a national security law professor at Pepperdine, spoke with NPR’s Weekend Edition about targeted killing accountability and transparency, including the possibility of a drone court. A short clip is available at Lawfare, where McNeal has been blogging on drones and targeted killing for a couple of months. I haven’t followed his work at Lawfare (though I will assign my self the task of catching up), but I am heartened to hear that he appears to agree with the stance I have taken in previous posts on this site (here, and here, and here), and for many of the same reasons. He goes on, however, to very insightfully explain the dynamics that cause Congress to be, heretofore, unwilling to draw red lines on drones and targeting killing abroad.

Paul Taylor, Senior Research Fellow
Center for Policy & Research

Seeking Sanity in the Drone Debate

Drone bashing seems to be in vogue these days, especially in on the liberal end of the media spectrum. Many of these critiques are based on faulty information or focus entirely on the most extreme examples or hypothetical situations, such as whether the government could target a US citizen sitting at a Starbucks in NYC. Of course, these arguments are feed by our own elected officials, sometimes of the conservative bent (I’m pointing at you, Rand Paul).

I would like to point out one beacon of sanity among these shrill arguments. Hassan Abbas, in his article at the Atlantic, criticizes US drone policy in Pakistan, does a remarkable job of producing a relatively balanced argument, while still clearly landing on the liberal end of the spectrum. I don’t agree with all of his assessments, or even all of his “ground realities.” For example, it is particularly questionable that we know that around 50-60% of all drone victims have been civilians. Verifying just the numbers is a difficult task, and classifying the victims into combatants and civilians even harder–and his reliance on “local estimates” falls prey to his own critique of the bias in other studies.

However, I actually do agree with his basic assessment of the situation. The use of drones allows policy-makers to feel like they are doing something about the situation, while they are in fact ignoring the underlying issues. For example, as Abbas notes,

“There were roughly 350 drone strikes in the tribal areas since 2004, at an exorbitant cost (even though drone strikes offer a cheaper option in comparison to “boots on ground”). But how many schools were opened in the region over the same period of time? The answer is distressing, as the number of schools has actually declined sharply.”

This is a relatively common argument among the few drone critics who go beyond the temptation to focus on gore or appeals to sovereignty, and take a more nuanced view. But Abbas goes one step further, pointing out the role of those the US drone campaign targets:

“Damages to more than 460 schools throughout the tribal belt at the hands of Taliban has in fact displaced 62,000 children, including 23,000 girls, from school. It doesn’t require very high intelligence to guess that in the absence of schools, and with an increase in violence, what kind of future awaits these kids. Drone strikes may take out some of those who destroyed these schools, but that is hardly a sustainable solution to the larger problem.”

And in this, he is absolutely right. The situation in which the youth were placed in the 1980s and 90s was one of the factors leading to the rise of the Taliban. And as Abbas points out, drones can do little to protect the youth, and nothing to build them new school or provide quality teachers. The drone campaign doesn’t even try to do these things.

After all, our drone policy is basically a band-aid solution. It is designed to keep the leadership of al-Qaeda and the Taliban on the run, but has no hope of finally defeating either organization. However, it is folly to think that just because drones will not solve the security or humanitarian issues in Pakistan and Afghanistan, we should abandon the policy. That said, Abbas is perfectly correct that the solution is not sustainable. It must be augmented (and eventually entirely replaced) by policy directed at the human dimension.

One problem there, though: No one knows how to do that. Any ideas?

Paul Taylor, Senior Research Fellow
Center for Policy & Research

Update on UN Drone Investigator

After a recent secret visit to Pakistan, Ben Emmerson, the U.N. special rapporteur on human rights and counter-terrorism (see my previous posts here and here), released a statement that the Pakistani government “emphasized its consistently-stated position that drone strikes on its territory are counter-productive, contrary to international law, a violation of Pakistan’s sovereignty and territorial integrity, and that they should cease immediately.” 

The US has previously relied on the contention that Pakistan consented to these strikes, and it has a lot of support to back it up. In fact, diplomatic cables released by Wikileaks confirm that Pakistani leaders did not oppose the use of drones on their soil, and even encouraged it. It is true that Pakistani officials have made public statements that the attacks are not welcome and should stop. But as pointed out by Ben Farley in his thoughtful piece on the D.C. Exile blog, it is not always clear from public sources when consent has been given or revoked, as when then-Yemeni President Ali Abdullah Saleh consented to US drone strikes on its territory, but under the pretense that they were the actions of his own air force. No one who witnessed such a strike would therefore know that it was not a breach of Yemeni sovereignty.

Emmerson, however, has apparently adopted a black and white view of the issue after his meetings with Pakistani officials, claiming that “[t]he position of the Government of Pakistan is quite clear. It does not consent to the use of drones by the United States on its territory.” But it is not clear.

Ben Farley’s conclusion is a more thorough and eloquent presentation of my own thoughts on the issue than I could hope to achieve:

Pakistan’s behavior in general has been at best ambiguous.  Despite having the capacity to “‘trace and detect any aircraft’” operating near its border with Pakistan and (apparently) the ability to shoot such aircraft down, there have never been reports of Pakistan shooting down a U.S. drone.  Although the absence of public reports of such downings is not dispositive, the fact that U.S. drones carry out any strikes even though they are slow moving, are not maneuverable, and carry no air defense countermeasures, strongly suggests that Pakistan ischoosing not to interdict drones.  Additionally, Pakistan has a modern air force that is at least as capable as the Iranian air force but, while Iran has chased a number of U.S. air force drones over the Persian Gulf in recent months, there have never been any similar reports from Pakistan.  Finally, and perhaps most tellingly, Pakistan has not taken the sort of concrete steps vis-à-vis the United States for drone strikes as it has for other violations of Pakistani sovereignty.  For example, in November 2011, a frontier incident between U.S. and Pakistani troops (that resulted in the death of 26 Pakistanis), led Pakistan to both close its border with Afghanistan to NATO convoys and to kick U.S. drones out from their Pakistani bases.  Pakistan also upgraded its Afghan-border air defense systems.  Similarly, after a CIA contractor killed two Pakistanis in January 2011, Pakistan ousted all CIA contractors and reduced the number of U.S. special operators allowed in Pakistan for training missions from 120 to 39.  Not only has Pakistan not taken such steps in response to U.S. drone strikes, at least until the Wall Street Journal report at the end of September 2012, Pakistan  continued to clear the parts of its air space in which the CIA indicated it would conduct drone strikes.  That is to say, not only is Pakistan not intervening to prevent drone strikes, it is taking affirmative steps to facilitate those strikes.  Thus, Pakistan’s behavior at least renders its public statement ambiguous and, more likely, supersedes those statements altogether.  Again, consent must be clearly stated but clearly stated to the recipient of that consent not the outside world.

If the United States is operating without Pakistan’s consent within Pakistan, it is violating Pakistan’s sovereignty—and it may be violating international law.  However, Emmerson’s conclusion notwithstanding, it is far from clear that, as a matter of international law, the United States is violating Pakistani sovereignty.

 

Paul Taylor, Senior Research Fellow
Center for Policy & Research

Former DOD Lawyer Frowns on Drone Court

Last week Jeh Johnson, the general council for the Department of Defense during President Obama’s first term, warned at a conference at Fordham Law School that the President’s targeted killing policies breeds mistrust among the public:

“The problem is that the American public is suspicious of executive power shrouded in secrecy. In the absence of an official picture of what our government is doing, and by what authority, many in the public fill the void by imagining the worst.”

However, he was skeptical about recent calls for a “drone court” to review and approve or deny targeted killing decisions:

“To be sure, a national security court composed of a bipartisan group of federal judges with life tenure, to approve targeted lethal force, would bring some added levels of credibility, independence and rigor to the process, and those are worthy goals.”

“But, we must be realistic about the degree of added credibility such a court can provide. Its proceedings would necessarily be ex parte and in secret, and, like a FISA court, I suspect almost all of the government”s applications would be granted, because, like a FISA application, the government would be sure to present a compelling case. … [While] the New York Times editorial page promotes a FISA-like court for targeted lethal force, it derides the FISA court as a ‘rubber stamp’ because it almost never rejects an application. How long before a ‘drone court’ operating in secret is criticized in the same way?”

Apparently not long, since I have already raised this criticism in a previous post. However, I coupled this criticism with a proposed solution: using ex post review, rather than ex ante. By removing from the judge’s consideration the concern for the pressing national security need involved in deciding whether a proposed target is an imminent threat, ex post review would allow the judge to be more critical of the Administration’s case, and make the court less likely to become another “rubber stamp.”

Mr. Johnson raised other several issues with the concept of a national security court for targeted killing decisions, as well. Interestingly, all of these concerns would be eliminated or greatly mitigated by removing the assumption that the court would authorize the killings, rather than ratify them afterward.

First, Johnson notes, as others have, that judges would be loath to issue the equivalent of death warrants, first of all on purely moral grounds, but also on more political grounds. Courts enjoy the highest approval ratings of the three branches of government, yet accepting the responsibility to determine which individuals may live or die, without that individual having an opportunity to appear before the court would simply shift some of the public opprobrium from the Executive to the Judiciary. However, if the court exercised ex post review, it instead would be in its ordinary position of approving or disapproving the Executive’s decisions, not making its decisions for it.

Another concern raised by Johnson is that the judges would be highly uncomfortable making such decisions because they would be necessarily involve a secret, purely ex parte process. While courts do this on a daily basis, as when they issue search or arrest warrants, the targeted killing context stands apart in that the judge’s decision would be effectively irreversible. Here again, the use of ex post process would free the courts from this problem, and place it in the executive (which includes the military, incidentally, an organization which deals with this issue as a matter of course).

Johnson also notes that even the determination of the facts is fraught with problems. The first three of Holder’s criteria for the legality of a targeted killing operation, feasibility of capture, imminence of threat, and senior leadership in an enemy organization, are time-sensitive determinations. Feasibility, Johnson notes from personal experience, can change several times in one night. That imminence may change over time is obvious to anyone with a dictionary. And while a target’s position as a senior leader in al-Qaeda is unlikely to change very often, it does on occasion (take the case of Mokhtar Belmokhtar). Requiring a court to determine these facts in advance would also require that the executive would have to notify the court when any change has occurred that might effect that determination. Meanwhile, use of ex post review would allow the court to look at a single point in time, when the executive “pulled the trigger” on the operation, thus crystallizing the facts and obviating this problem.

The last of the Holder criteria, too, causes problems. This criterion requires that the operation be executed in compliance with the law of war. Of course, this is capable of determination only after the fact. Thus, no ex ante review will be able to determine if this requirement is satisfied. An ex post review, however, could.

Johnson also raised a very significant separation of powers concern. While the President’s duties and powers are not well enumerated in the Constitution, one thing is made clear: the President is the Commander in Chief of the Armed Forces. According to Johnson, the President therefore cannot abdicate his responsibilities as Commander in Chief to another branch of the government, nor can Congress remove those powers to itself or the Judiciary. While this is not an entirely settled question of law (note the War Powers Act and Congress’ power of the purse strings), it can be easily avoided by conducting the review ex post. After all, ex post review of the execution of nearly any of the President’s powers is fully within the authorities of the Judicial Branch.

Johnson also notes that any requirement for ex ante review of a national security issue will require an exception for exigent circumstances. Johnson asks, “is it therefore worth it?” Without coming to a conclusion on this question, ex post review would obviate the concern. No exigent circumstances can occur after the the deed is done.

Lastly, there is the concern of creating perverse incentives: whether a person’s name or identity is known has never been a factor in determining the legality of targeting an otherwise-lawful military target. But by creating a separate legal regime for known targets, we could create a disincentive to collect information about a target. We do not want a military or intelligence agency that keeps itself intentionally uninformed. Nor do we want to halt a military operation in progress simply because one of the targets is recognized late. Conducting the review ex post would not eliminate these issues, but it would substantially mitigate them. The military (or CIA, if it keeps its program), would not fear an interruption of its operations, and could even have an incentive to collect more information in order to later please a court that has plenty of time to look back at the past operations and question whether an individual was in fact targeted.

Not mentioned in Mr. Johnson’s comments, but related to his concern regarding perverse incentives, is another concern. The Executive, or some agency within it, may attempt to evade the jurisdiction of the court by claiming that it did not “specifically target” the individual, but was targeting under general constitutional authorities “someone” that appeared to be an imminent threat to the US–and now the case is moot. No court could enforce its jurisdiction before it knows that the individual is targeted, but it can enforce its jurisdiction after the targeting is brought to completion. In an ex post review, if the claim is made that the killing was not “targeted,” and thus that no review is necessary, the court will be able to employ its power to determine its own jurisdiction to enquire into the process leading to the killing, which in this type of review would be half the job.

Thus, for each of Mr. Johnson’s concerns about the wisdom or legality  of a “national security court” to review targeted killing decisions, it is the reliance on ex ante review that causes all or most of the problem. However, ex-post review will give the public the assurance that it seeks that the Executive is not abusing and will not abuse its vast military might, while still providing it the room to carry out its responsibilities. Unfortunately, it is not something that many people seem to devote much attention to.

(The full text of Mr. Johnson’s address is here.)

Paul Taylor, Senior Research Fellow
Center for Policy & Research

A New Look at Targeted Killing Authorities

The Obama administration is reportedly taking another look at the legal foundations of its use of drones for lethal counterterrorism operations. And none too soon, with the changes in the structure of al-Qaeda stretching the AUMF to the breaking point.

Like the war in Afghanistan, the targeted killing campaign in Pakistan, Yemen and elsewhere was undertaken under legal auspices of the Authorization for the Use of Military Force, passed by Congress in the wake of the 9/11 attacks. That law allowed the administration “to use all necessary and appropriate force” against those who “planned, authorized, committed, or aided” the 9/11 attacks or who “harbored such organizations or persons”.

However, with the continuing tactical successes of the dogged and technologically sophisticated campaign to target the core al-Qaeda leadership in Pakistan over the last several years, the terrorist network has become much more diffuse.  This makes finding the necessary connections to the al- Qaeda senior leadership much more difficult, thereby undermining the legal justification for using lethal force. In fact, even detaining these individuals would require that they fall under the AUMF or some other legal authority (something critics of targeted killing often overlook).

This diffusion of al-Qaeda—and the legal authorities for use of force—is not a particularly new phenomenon. After all, after the invasion of Afghanistan, and the routing of the Taliban and al-Qaeda, many al-Qaeda operatives left the Afghanistan/Pakistan theater altogether, dispersing across the globe. They were not going into hiding, per se, but looking for new places to recruit, plan, and carry out their terrorist operations. When the US subsequently invaded Iraq, some al-Qaeda operatives followed us there to take root in the security void we created.

The courts have taken an expansive view of the AUMF, allowing the administration to target these “associated forces,” or what many analysts have called al-Qaeda 2.0. However, these individuals and groups had clear, direct connections to the original, core al-Qaeda element run by Osama Bin Laden and Ayman al-Zawahiri which planned and carried out the 9/11 attacks.

Most al-Qaeda 2.0 groups were founded and run by his lieutenants, and remained in contact with Bin Laden. This is not true of the newest crop of terrorist groups cropping up across the Middle East and Africa. Instead, the leadership of these new groups often learned their trade as lieutenants to al-Qaeda 2.0 leaders and have only the most tenuous connections to the core al-Qaeda group. This makes fitting them into the AUMF scheme difficult, creating questionable legal authority to use lethal force.

According to a senior Obama administration official,

“The farther we get away from 9/11 and what this legislation was initially focused upon, we can see from both a theoretical but also a practical standpoint that groups that have arisen or morphed become more difficult to fit in.”

Even the leaders with the firmest connections often pose legal problems: Mokhtar Belmokhtar, a former fighter in Afghanistan and later leader of al-Qaeda in the Islamic Maghreb (AQIM), had broken ties with AQIM and formed his own group, the al-Mulathameen Brigade operating in Algeria and Mali. The threat he poses to the to the US is not diminished, however. He was the mastermind of the Algerian gas plant attack, which lead to the deaths of three US citizens. However, because he is no longer a part of al-Qaeda or one of its franchises, the administration determined that the AUMF would apply to him.

When those like Belmokhtar and the Benghazi attackers kill Americans, the US could capture them based on criminal law enforcement authorities. However, should we have to wait for US citizens to be victimized before we allow the government to take action, when we know that an individual or group has nefarious intentions? Should we also have to wait until they show up somewhere that we can execute an arrest without undue danger to our agents?

The Obama administration is now looking for ways to square this circle, and create a more permanent framework for dealing with these issues. However, they apparently do not like their options. Simply expanding the current AUMF is unappealing. “You can’t end the war if you keep adding people to the enemy who are not actually part of the original enemy,” according to one person who participated in the administration’s internal debates. But relying solely on the constitutional authority of the President are not appealing either.

And while the administration may be correct that there is little political appetite for it, what is needed is a new authorization, allowing the executive broader authorities to kill or capture terrorists that target US interests, not just those connected to specific prior attacks. But these authorities must be coupled with judicial and congressional oversight procedures to protect against abuse or overuse. In fact, failure to create these authorities with built-in checks will encourage future presidents to rely on their inherent authority to act to defend the country from foreign threats, thus seizing all of the power with none of the constraints.

A more comprehensive “Counterterrorism Operations Powers Act” would create checks on the President’s powers, while still giving him the ability to carry out his duty to protect the nation. It would also help to elucidate the line between law enforcement situations and national security/counterterrorism situations.

Paul Taylor, Senior Research Fellow
Center for Policy & Research

“Your Drones! They’ll Have to Wait Outside!”

Much hubbub has been made recently over whether police use of drones would be an unacceptable infringement of privacy. In fact, lawmakers in some minor jurisdictions have gone so far as to ban all drones.

Caring little for fourth amendment questions, myself, especially in the domestic law enforcement context, I’ll only offer one observation: the police have been oggling you from above for decades.

There is a precedent well known to every law student that allows the police to use aircraft for observation of the areas of your property that they may not be able to see from the street. In California v. Ciraolo, 476 U.S. 207, the Supreme Court decided that police use of airplanes to “search” your backyard was not a breach of your fourth amendment right to be free from unreasonable searches. According to the Court,

“The Fourth Amendment simply does not require the police traveling in the public airways at [a legal] altitude to obtain a warrant in order to observe what is visible to the naked eye.”

Now, back to drones: the only technical difference between drones and ordinary aircraft is the location of the pilot. It is not at all clear why this difference would matter to your sense of privacy. Maybe electronic eyes burn that much more on the back of your head? It’s doubtful the Supreme Court would make that kind of distinction.

However, there is another effective difference: the ease and low cost of drones will greatly increase the amount of surveillance that the police can conduct. And being watched only when the police determine it’s worth the exorbitant cost may seem like less of a burden on your backyard activities. So then that must be what people are worried about.

But if it is not the technical differences between drones and police helicopters that raise the specter of a police state, then the efforts to limit aerial surveillance should not be limited to unmanned overflight. If it decides to craft a new policy for aerial surveillance, the legislature should ensure that it be platform-neutral: aerial surveillance is either intrusive or mundane. It can’t be both, depending on where the pilot sits.

Paul Taylor, Senior Research Fellow
Center for Policy & Research