Assessing a Legal Framework for Drone Strikes

The nomination of John O. Brennan as director of the Central Intelligence Agency has renewed a national debate on the role of predator drones in war. Brennan’s nomination reflects President Obama’s steadfast support for these unmanned aircraft. Just last week, a highly controversial Justice Department memo detailing the legal justification for these drone strikes was leaked to NBC News. The document sanctions the killing of American citizens if they are believed to be a “senior operational leader” of Al-Qaeda, even without intelligence indicating an imminent threat to the country. This has led to issues on the potential legality of these killings, not to mention the ethical ramifications of such attacks. But what place do drones have in our society? The public needs to have a serious discussion about a potential legal framework for their use through the establishment of both international and domestic law.

It is easy to think about drone warfare as a uniquely American phenomenon, but that is far from the truth. According to CNN, up to 50 nations currently have or are developing Unmanned Aerial Vehicles, in addition to a number of non-state actors such as Hezbollah. As the U.N. Charter already outlaws “arbitrary killings,” not to mention civilian ones, drone strikes constitute a severe threat to the integrity of international law. It is the responsibility of the United Nations, which has a unique ability to enact a system of international accountability, to curb the use of drones. While it may seem an unenviable task to convince the world’s most powerful nation to disarm itself of a crucial weapon, it should be no more difficult than convincing the United States to sign nuclear non-proliferation treaties (1968) or chemical weapons treaty (1997), especially if other nations continue to expand their own rival programs.

Of course, any international deal would be far easier if the United States were to first develop legal guidelines of its own, which could possibly serve as a framework for international negotiations. The U.S. needs to develop an effective balance between efficient systems of eliminating targets and respect for the constitutional rights of terrorists, whatever they may be. Setting current legal issues aside, it is clear that Americans support the use of drone strikes to target terrorists. However, it is also clear that bipartisan support does exist for its regulation. Though neither Democrats nor Republicans will support total prohibition on the use of armed drones, both would support regulations on their use against American citizens, specifically through judicial or congressional oversight of the program.

The first thing that Congress needs to do is establish a legal framework for the constitutional rights of terrorists. Though U.S. Attorney General Eric H. Holder maintains that the Constitution does not cover terrorists, the Supreme Court declared in Hamdi v. Rumsfeld that U.S. citizens have the right of due process under law. Currently, the government is making the case that this only applies to detained terrorists rather than those on the battlefield. Therefore, congressional Democrats have some leeway to enact legislation.

In exchange for the legalization of the targeting of U.S. citizens, Democrats could concede a system of judicial oversight on specific killings. Though the details of such proceedings—including the names of those on the “kill list”—would not necessarily have to be public, its mere occurrence would go a long way toward maintaining the stability of the legal process. To further ensure transparency and the efficacy of this program, some or all details could be released a certain period after the killing of the given target, either to a congressional committee or to the public at large. This mix of executive orders and congressional and judicial overview would sustain America’s system of checks and balances while still maintaining the confidential nature of the war on terror.

It is also imperative that Congress pass a more general system of regulations on who—specifically, which U.S. citizens—may be targeted through drone strikes. One such regulation could require that targets pose an “imminent” threat to the United States—though the meaning of the word "imminent" may have to be clarified. Reform of the United States’ internal drone program can lead to leverage with Pakistan, on whose soil America continually targets enemy combatants. Ideally, this would strengthen Pakistan’s tenuous cooperation in the war on terror.

The United States has a right and responsibility to eliminate terrorists that pose a threat to our national security. However, we must ensure that first and foremost our Constitution is upheld and that we act within our bounds, specifically when dealing with U.S. citizens. We must also learn to cooperate with the rest of the world on this sensitive issue. Predator drones can be great tools in the war on terror, but it is our responsibility to establish their roles and limitations.

Julian Atehortua ’15, a Crimson editorial writer, is an economics concentrator in Leverett House.