Next in Libya: Drone Attacks?

Eric Posner weighs in.
Oct. 17 2012 1:56 PM

The Drones Are Coming to Libya

Along with an unprecedented expansion of the president’s power.

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It is tempting to think that the president’s power to kill foreigners on a whim represents a failure of our constitutional system, which sought to ensnare the executive in a web of institutions that prevent the excessive accumulation of power in one man. But the constitutional goal was to protect Americans, not foreigners. Our Constitution has evolved to give the president the discretionary power to use force abroad because strong electoral incentives compel him to use it to advance national security, while Congress and the courts are parochial and cumbersome institutions that lack the capacity to react quickly to changing events. Although the president’s power to use force against Americans remains constrained by judicial process, at least as long as they do not join al-Qaida, foreigners abroad are on their own.

President Obama has acquired legal authority for drone warfare from the Authorization for Use of Military Force, the statute that Congress enacted at the request of the Bush administration just after the Sept. 11 attacks and was effectively a declaration of war against al-Qaida. Back then, one might have thought that the AUMF would authorize military operations in Afghanistan for just as long as necessary to defeat al-Qaida and the Taliban. But al-Qaida has spread into multiple countries, and independent groups have affiliated themselves with al-Qaida in order to obtain credibility and assistance.  The AUMF will deliver war-making authority to presidents for decades to come.

And even if the president wants to fling drones at non-al-Qaida targets, he can.  Although President Obama initially distanced himself from President Bush’s claim that Article 2 of the Constitution gives the president the authority to use force unilaterally to protect American interests, he used this justification for the 2011 Libya intervention, which was not authorized by Congress, and he would likely use it to justify an indefinite expansion of drone warfare against any security threat, including Iran, for example. Congress will not try to stop him. New threats emerge constantly, leaving no time for a congressional debate before each strike is authorized. Thus, Congress must either hand the president blanket authority to use drones as necessary—the implicit status quo today—or block him, which would outrage Americans who fear terrorism. The choice for our pusillanimous legislature, which so far has acted mainly to prevent President Obama from cutting back on some Bush-era tactics, is obvious.

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Courts will also not stop the drone program. Judges say that they possess no authority to interfere with military activities abroad, cannot compel the government to disclose secret information that would be necessary to referee a challenge, and cannot order government officials to pay damages for harm that they cause as they discharge their duties. Judges lack the capacity to second-guess the political and military judgments of the president, and they know it.

The Constitution has thus become a sleek and lethal machine for projecting violence abroad in order to protect Americans without risking democratic values at home. No downside exists unless you live in a foreign country in Southwest Asia or North Africa, where people deemed terrorists and those living among them will start dying in ever greater numbers as the drone program swells into a worldwide system of policing. The long-term prognosis for the reputation of the United States is surely bad; the political imperative to protect the country has overwhelmed President Obama’s earlier impulse to mend the harm done to the reputation of the United States during the Bush years. But the short term always trumps the long term in national security. Unless American voters discover a humanitarian impulse to respect the lives of foreigners that has hitherto been lacking and call their president off, America could become a predatory state—without even realizing it.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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