an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
One of the main themes of my forthcoming book Long Wars and the Constitution is that we can gain insight into the unconventional and seemingly novel “war on terror” by looking closely at the history of the cold war.This approach is especially helpful now in assessing the charges being leveled against the CIA because of the ongoing drone war being carried out in multiple countries under the auspices of the September 2001 AUMF.It is doubtful anyone is entirely happy with the results of the drone war and the civilian casualties that are its foreseeable consequences.But the drone war illustrates several things at once about the relationship between the “9/11 War” (my preferred term for the “war on terror”) and the cold war.
Consider what the cold war teaches us about the role of the CIA.It has to be one of the most mythologized and misunderstood agencies in the American government.From the very beginning, the CIA conducted clandestine or covert operations abroad, including paramilitary operations.As recounted in Long Wars, despite persistent claims that it was never authorized to do so, the relevant volumes of the Foreign Relations of the U.S. series show that Congress and the executive branch intended and authorized the Agency to have such a capability.Some may believe the Agency left this path after the 1975 intelligence investigations and President Ford’s famous ban on assassinations.In fact, however, the role of the CIA became a key contested point in the cold war of the late 1970s.Conservatives, including Ronald Reagan and George H.W. Bush, promoted a narrative in which the investigations had harmed national security.Once Reagan was elected, conservatives were intent on unleashing the CIA against what they saw as the persistent communist threat, especially in Central America.That’s exactly what happened in the 1980s.
So we need to take shorter steps in understanding the CIA.If the role of the CIA has been misunderstood and has seemed somewhat protean, that is because the Agency was designed to be an especially “executive” arm of the presidency.A close relationship with the president was presumed.Thus, the CIA was intended to work directly with the president to provide unique civilian analysis and to sponsor operations abroad that no other government department could undertake.So it harmed the Agency when after the end of the cold war, President Clinton virtually ignored it (and most of the rest of foreign policy) during his first term (not to say Congress was that different).Clinton woke up to the threat of terrorism by al-Qaeda specifically in his second term, but damage had been done to the Agency and its morale.This is one of many ways in which the end of the cold war bled into the 9/11 War.
As I described in a previous post on Obama’s way of war and develop in Long Wars, both Eisenhower and Obama turned to the CIA in situations in which they had to deal with a war-weary public and so could not handle foreign threats by launching new conventional wars.Steve Coll notes the parallel with Eisenhower in his New Yorker piece.But would opponents of drone strikes really prefer that genuine threats be dealt with by ground forces?Merely inserting and defending such forces can result in substantial civilian casualties (to say nothing of what such forces may do by mistake on their own).Perhaps their answer is that the nature of the threat never justifies either kind of response.Yet no critic of drone strikes has the information necessary to make that assessment.
If the issue then comes down to better oversight by Congress, I certainly agree more is called for.In Long Wars, I advance the concept of the “cycle of accountability” to explain what we should be trying to achieve with respect to the relationship between the executive and legislative branches (I don’t believe the judiciary will be of much help and doubt judges will be interested in serving on a “drone court”).That is, congressional oversight of the right sort can actually improve executive branch decisionmaking.This is a widely shared intuition.What is not understood is that the cold war shows effective oversight can be developed only by significantly altering the structure of Congress through, for example, a substantial overhaul of the committee system.Time and again, official bodies such as the 9/11 Commission have called for such reforms without result.Until we alter the structure of Congress, matters are unlikely to improve, either with respect to drone strikes or elsewhere in the 9/11 War.
With respect to assassinations, it is important to keep in mind that one of the main problems with this tactic in the cold war was not simply the idea of a deliberate state killing, but killing duly elected (or in Castro’s case duly approved) foreign leaders.In other words, the core issue was sponsoring violent regime change, something liberals argued the U.S. should never do.With respect to regime change per se, conservatives disagreed, but the ban on assassinations held until al Qaeda began its war against the U.S. with the 1998 embassy bombings.As the Clinton administration considered how to strike back, someone (I think it was Al Gore) argued that the ban was never formulated with a direct attack on the U.S. in mind.Targeted killings in response to attack or (more controversially, I agree) in anticipation of an attack simply don’t pose the same issue that the U.S. confronted in the cold war. If there is a real, substantial legal question at the heart of the drone strikes controversy, I suspect it is one I haven’t seen discussed – whether Congress could authorize the president to use tactics arguably prohibited by international law.Suppose the Bush and Obama administrations thought drone strikes were the only effective way to defend the U.S. against al-Qaeda and so fulfill the goals of the September 2001 AUMF?Curtis Bradley takes up this question in his authoritative recent work International Law in the U.S. Legal System, saying that this would be legal under U.S. domestic law.I have no idea whether most scholars of international law would agree with him.It might be interesting to find out.As to the current status and scope of the AUMF, I’ll try to take up that issue in a later post.
Self-defense and law of war targetings that comply with international law are not "assassinations." With respect to the permissibility of self-defense targetings by drone, "due process" issues, and presidential power, see my ABA statement: http://ssrn.com/abstract=2256694 One of the more interesting questions is not whether self-defense targetings of DPAA (direct participants in armed attacks) is permissible, but who is a DPAA, under what circ., etc.
The use of drones by the CIA and the military in targeted killings that inevitably result in civilian deaths that in turn radicalize people against the United States is bad policy when used as extensively as is presently the case. It may be "legal" under some interpretations of U.S. law while remaining unlawful under international law norms as I understand them. Bush declined to sign up for the International Criminal Court for just this reason. We will regret this behavior and it will come back to bite us.
I share the first comment's sentiments as to the misuse of some of the term "assassinations." The text underlines the point. A killing of a political leader like Castro is different than targeting OBL. The remarks overall are interesting though I might disagree on certain points.
This doesn't change my agreement with Bruce in Maine as to the negative policy results.
http://www.thebureauinvestigates.com/2013/05/09/pakistani-court-rules-cia-drone-strikes-are-illegal-and-war-crimes/ "In the first major Pakistani court ruling on the legality of the CIA’s drone campaign in the country, a Peshawar High Court judge said this morning that strikes are ‘criminal offences’. Chief Justice Dost Muhammad Khan ordered Pakistan’s government to ‘use force if need be’ to end drone attacks in the country’s tribal regions.
He ruled that US drone strikes in Pakistan constitute a ‘war crime’ and are a ‘blatant violation of basic human rights’, killing hundreds of civilians. He ordered the government to ‘forcefully’ convey to the US that it must end drone strikes and called on the UN Security Council to intervene."
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