Revisiting a Key Legal Basis for Obama’s Anti-Terrorism Drone Strikes

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After I wrote a short piece for last week’s magazine that, among other things, chastised the Obama Administration for not doing more to discuss the pros and cons of its heavy reliance on drone strikes against suspected terrorists, an Administration official groused that I hadn’t credited public comments on the subject by various Obama officials. He specifically cited an April 30 speech by the White House’s counterterrorism point man, John Brennan, outlining the laws, rules and ethics that guide the drone campaign.

It’s a pretty good speech and definitely worth reading if you care about these issues. But Brennan doesn’t really address the point of my article, which is the danger that drone strikes could have a counterproductive effect. The civilian casualties and general resentment they breed in places like Pakistan and Yemen clearly threaten to undermine long-term American interests in those countries, even if we are nailing some top al-Qaeda figures in the short term. But reading Brennan’s remarks drove home a point that virtually no one discusses, but that is a little startling when you step back and contemplate it. It is the Obama Administration’s heavy reliance on a law enacted by Congress three days after the Sept. 11 attacks that justified an extremely broad range of military action in the name of fighting terrorism. Here’s Brennan:

First, these targeted strikes are legal. Attorney General Holder, Harold Koh and Jeh Johnson have all addressed this question at length. To briefly recap, as a matter of domestic law, the Constitution empowers the President to protect the nation from any imminent threat of attack. The Authorization for Use of Military Force — the AUMF — passed by Congress after the Sept. 11 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 to Afghanistan.

As a matter of international law, the U.S. is in an armed conflict with al-Qaeda, the Taliban and associated forces in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense. There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.

Here’s the complete passage that Brennan cites from the AUMF:

That the President is authorized 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 Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the U.S. by such nations, organizations or persons.

It’s been more than a decade since Congress, acting with all the contemplation you’d expect while the Ground Zero rubble still burned, approved the AUMF. The law was designed mainly to allow the coming invasion of Afghanistan and various other acts of immediate retribution. It’s hard to believe anyone envisioned it being cited as a legal justification for missile strikes in countries like Yemen and Somalia more than 10 years later. And it’s hard to understand why the AUMF allows us to kill the leader of the Pakistan-based Taliban, which had little or no role, that I’m aware of, in planning, authorizing, committing or aiding the 9/11 attacks that originated across the Durand Line in Afghanistan.

I suppose the Obama Administration would say that any group with pre-9/11 ties to al-Qaeda can be deemed as having aided the 9/11 attacks. And that the AUMF’s language justifying action to “prevent any future acts of international terrorism against the U.S.” (future being a conveniently open-ended word for the purposes of the law) allows us to strike splinter groups of al-Qaeda, like those in Yemen, Somalia and elsewhere in Africa.

But it still seems peculiar that the central basis for these strikes — apart from the right of self-defense against imminent attack provided by international law, which is hard to establish in any specific case — is a law of about 350 words that was written and approved within three days of Sept. 11.

Obama Administration officials long ago stopped using the phrase war on terror. But that war carries on, under a legal basis that remains unchanged — and largely unquestioned.

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