Sunday, December 04, 2016

Bobbitt vs. Jaffer on Drone Strikes

Stephen Griffin

Philip Bobbitt, who to my mind does not enter the lists often enough, has a very insightful review of Jameel Jaffer's book on drone strikes up on the Just Security website.  Jaffer is not too happy with Bobbitt's review, and his reply is here.  To my mind, Bobbitt makes at least two important points that Jaffer misses.  The first is that a judicial or adjudicative model is inadequate to understand the basis and extent of presidential power during an armed conflict (I'm happy to call it a "war," the 9/11 War) authorized by Congress.  So as I recommend in my recent article, Bobbitt takes the 9/11 AUMF seriously.  My contribution is to argue that the presidential elections held subsequent to 9/11 are constitutionally relevant to assessing the basis of the Obama administration's military operations overseas, including drone strikes.  By the way, I am happy to recommend Sai Prakash's article in the same Drake Law Review symposium to which I contributed.  Prakash argues for the position, which I agree with, that the 9/11 AUMF justifies the military operation against ISIS.

Bobbitt's second point is that organizations like the ACLU (as well as journalists) have placed far too much emphasis on OLC opinions as the source of law for the executive branch rather than presidential actions.  Especially in sensitive areas like national security in which there is ongoing presidential involvement, the president controls the law of the executive branch, not OLC.  In understanding that law, we must look first to presidential statements and decisions, not the quasi-judicial statements of OLC.  In any case, I highly recommend Bobbitt's review.

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