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Tuesday, February 11, 2014

A Potential Drone Strike on an American Citizen and Related Articles by Gonzales, Vladek, and Opderbek

The New York Times reports:

The Obama administration is debating whether to authorize a lethal strike against an American citizen living in Pakistan who some believe is actively plotting terrorist attacks, according to current and former government officials.
It is the first time American officials have actively discussed killing an American citizen overseas since President Obama imposed new restrictionson drone operations last May. 
. . . 
The first time the Obama administration carried out a targeted killing operation against an American citizen was in September 2011, when a C.I.A. drone killed the radical preacher Anwar al-Awlaki in Yemen; officials said little publicly about the operation. The White House acknowledged last year that four American citizens had been killed in drone strikes during Mr. Obama’s time in office. According to the White House, only Mr. Awlaki had been intentionally targeted.
As the Times notes, the Obama administration is moving drone operations to the Pentagon to make the process more transparent. But there is a limit to the amount of transparency that the government can practically provide, and the practice of targeting American citizens remains highly controversial.

This report reminded me of an article I read last spring written by former Attorney General, Alberto Gonzales. I had not thought of the article for a while, but a quick search led me to the Wall Street Journal, which revealed that it ended up getting published in the George Washington Law Review. The article is Drones: The Power to Kill. Here is the abstract:

After the terrorist attacks on September 11th, 2001, the Bush Administration began the use of unmanned armed aerial drones to pursue targets in Afghanistan and Pakistan. The Obama Administration has continued this policy, expanding it to pursue substantially more targets in Yemen and new ones in Pakistan. This Article analyzes the Obama Administration’s procedures for placing American citizens on the list of targets for drone strikes and proposes additional measures that Congress and the President can take to ensure that the procedures comply with constitutional guarantees of due process. This Article uses Supreme Court precedents on enemy combatant designations and trials as a source of due process standards. It argues for the following steps: (1) the establishment of an “enemy combatant” definition specific to drone targets; (2) a requirement that the President notify Congress of any potential U.S. citizen target and of any executed strike; (3) verification, immediately before the strike, that the American target continues to meet the definition of enemy combatant; and (4) the opportunity for an advocate of the target to challenge the classification before a neutral decisionmaker.
I recall that the earlier draft of the article I read did not raise any groundbreaking points, but I will admit that I have not read the most recent version of the article. What drew my attention to the original article was that it had been written by Alberto Gonzales, and that he was calling for limits on drone strikes. This also seemed to draw the attention of Stephen Vladek, who wrote a response to Gonzales's article that has been published in Arguendo, the online component of the George Washington Law Review. I particularly like how Vladek's response begins:

Given his controversial role in shaping and defending U.S. counterterrorism policies during his tenure as White House Counsel and Attorney General under the George W. Bush Administration, there is more than a little irony to an article by Alberto Gonzales that calls for increased external oversight of the Obama Administration’s use of targeted killings. [footnotes omitted]
Vladek goes on to point out that Gonzales's framework would provide for much more review by the courts of executive drone strikes than one may expect from such a self-confessed proponent of executive authority.

A final piece of scholarship that I think is worth considering in exploring this issue is David Opderbeck's Drone Courts. Here is the abstract:

The age of the drones has dawned. Rapid technological development will soon permit the government to deploy micro-scale self-sustaining drones with networked surveillance and precision kinetic capabilities. A recent U.S. Air Force video describes these planned micro-drones as "unobtrusive, pervasive, and lethal". Even if moral and international law concerns about drones used for targeted killings are set aside, current U.S. policy concerning drone use is inadequate to protect the public from possible abuses of Executive power. In particular, the judicial branch should play a role in evaluating targeted drone killings, at least outside an active war zone and at least to the extent U.S. citizens may be impacted directly or as collateral damage. Although the judicial branch has historically played only a limited role with respect to national security and wartime executive branch decisions, there is valuable precedent dating back to the Militia Act of 1792 for ex ante judicial review of the President’s use of military force on U.S. soil. Current proposals for a drone court that would utilize a warrant process similar to that employed by under the Foreign Intelligence Surveillance Act are a good start, but the standards and procedures of the FISA Court are in important ways inadequate. Congress should establish a limited jurisdiction judicial branch tribunal that could provide an important independent measure of accountability over the use of killer drones.
While FISA is generally perceived to do very little to check government surveillance, Opderbeck raises an interesting idea in proposing a separate court to review drone strikes, and it is worthy of attention in the context of the Gonzales - Vladek exchange.

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