Posted Wednesday, Feb. 6, 2013, at 3:14 PM
Photo by S.S Mirza/AFP/Getty Images
After NBC News's scoop this week on the Department of Justice memo outlining the administration's justification for killing American citizens who have joined al-Qaida or "an associated force," attention turned to the legal basis for the Obama administration's policy. Turns out, the drone war appears within the realm of law—at least as its read by proponents of the policy. Specifically, laws passed after 9/11 that have governed the U.S.'s approach to fighting terrorism for the past decade.
Here's Slate's Eric Posner explaining the basic theory:
All you need to know in order to understand the memo is that Obama administration lawyers have enthusiastically endorsed the once-vilified Bush administration decision to classify security operations against al-Qaida as “war” rather than as “law enforcement.” ... If the administration had taken the law enforcement approach, members of al-Qaida who are American citizens would have had the same rights to due process that are familiar from everyday policing. We would send FBI agents to foreign countries like Yemen after obtaining permission from governments to conduct joint law enforcement operations. Or we would have asked foreign governments to arrest suspected members of al-Qaida and extradite them to the United States. We could not have sent drones to kill them. We would have offered them trials in civilian courts. But, at Bush’s urging, Congress did not authorize war (only) against Afghanistan; it also authorized war against al-Qaida. That meant that members of al-Qaida would be treated as belligerents. U.S. forces could shoot them on sight, just as they could drop bombs on German military formations during World War II.
The memo, along with responses to it, focused on the use of drone strikes in areas where al-Qaida operatives are believed to be working. It's a subject long discussed in some circles, but there's a general perception that the issue has been ignored by the public at large. But the memo is at least creating a small news peg for some to hang their analysis of the policy, which has killed at least 2,600 people in Pakistan alone since 2004, including at least 475 civilians and 176 children, according to the Bureau of Investigative Journalism. The BIJ also notes that the UN officially launched an investgation into civilian drone deaths in late January, providing another opportunity for scrutiny of the program.
That's why it was so striking to read a new piece in Pro Publica about the single paragraph of law that is more or less our country's justification for the action. The law, known as the 2001 Authorization for Use of Military Force, reads:
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 September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Both the Pro Publica piece and Posner's Slate piece are worth a read all the way through. But note in the AUMF that the boundaries we've laid down for killing American citizens (and of justifying action that can and does kill civilians and children in other countries) contains no real geographic or organizational restrictions on what does and doesn't constitute our enemy.
This post was updated at 4:01 p.m. for clarity.