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US Senators Question Legality of Armed UAV Program

Apr. 29, 2013 - 11:46AM   |  
By JOHN T. BENNETT   |   Comments
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WASHINGTON — Democratic and Republican lawmakers are turning up the heat on US President Barack Obama over his use of armed unmanned aircraft to kill al-Qaida members — but absent are widespread calls for banning drone strikes.

Members of both parties want the White House to reveal its legal justification for its controversial UAV-strike policy. Lawmakers are concerned the strikes violate existing law, and conservative Republicans see an expansion of executive branch power.

The political wagons are circling around the CIA and military drone-strike programs, but so far, all evidence shows targeted killings by unmanned US aircraft are here to stay.

Sen. Ted Cruz, R-Texas, holds some sway over the future of the UAV program. Despite being a freshman senator, he is the ranking member of the Senate Judiciary Committee’s Constitution, civil rights and human rights subcommittee.

During an April 23 hearing that the subcommittee’s chairman, Sen. Richard Durbin, D-Ill., dubbed the “first ever” in the upper chamber on the legality of UAVs and targeted killings, Cruz zeroed in on the program’s constitutionality.

The former Texas solicitor general said a White House Office of Legal Counsel memo laying out some of the administration’s legal rationale is “exceedingly broad.”

And Cruz raised new concerns about whether the Obama administration — or a future one — might use an unmanned aircraft to kill an American citizen on American soil.

Such concerns spawned the headline-grabbing Senate floor filibuster conducted by Sen. Rand Paul, R-Ky., of Obama’s then-CIA director nominee, John Brennan. Cruz joined that filibuster, which forced Attorney General Eric Holder to acknowledge the administration does not believe the Constitution would allow the use of UAVs to strike US citizens on US soil.

But, notably, Cruz said he sees “no serious question” about using UAV strikes on “foreign nationals overseas” who have taken up arms against America.

Cruz and other panel members were mostly concerned with issues such as securing more assurances from the White House about the legal underpinnings of the program.

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“This is about constitutional power,” Cruz said, citing what he sees as an administration constantly seeking to expand the president’s authority.

The Obama administration drastically increased use of CIA and military UAV strikes from Afghanistan to Pakistan to Yemen to Somalia from 2009 to 2012. While the frequency has slowed, UAVs have been Obama’s preferred tool against al-Qaida.

The White House has suggested the resolution Congress passed shortly after Sept. 11, 2001, is the legal basis for the strikes. The administration contends that congressional authorization for the use of military force covers UAV missions in Pakistan, Yemen and Somalia, places that, at the time the authorization was passed, were not directly related to the 2001 attack.

“We must consider the limits of these authorities in the context of the use of drones. When US troops were fully engaged on a so-called ‘hot’ battlefield during the war in Afghanistan, the boundaries of the legal authorities upon which the administration relied upon for the use of force were much clearer,” said Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee.

Drone Court?

Lawmakers also focused on pressing the administration to make the UAV program’s targeting process more transparent, and raised anew the idea of creating a special court to approve or review UAV strikes.

Leahy, whose Judiciary chairmanship will give him a large role in any changes that could be coming, said he would “express no opinions on ... specific proposals today.” But the powerful senator said he “strongly believe[s] that Congress must ensure that there are rigorous procedures in place for targeting decisions.”

Durbin said he supports establishing a mechanism for “proactive approval” by an independent legal body for US drone strikes.

Sen. Lindsey Graham, R-S.C., however, said he is concerned such steps would turn “a war” into “a crime” and hinder operations against al-Qaida and other US foes.

“Count me in” on improving the drone-targeting process, Graham said. But, “count me out” on setting up a drone court.

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Cruz, Graham and Durbin will play a big role in the policy battle over the program. The former two senators also are Senate Armed Services Committee members; the latter is the Senate’s assistant majority leader and also chairs the Senate Appropriations defense subcommittee, a panel on which Graham also sits.

How the Senate Armed Services Committee approaches the armed UAV program in its 2014 Pentagon policy legislation will be key. Reports have surfaced that the White House is considering shifting most or all of the CIA’s UAV program to the control of the Pentagon.

Already, a turf battle is playing out among the armed services and intelligence panels, with each side helping its preferred agency secure as much of the program as it can, including its budget and operational importance. Sources expect a years-long fight.

Here to Stay

Across Washington, the talk is about how to make the program more transparent and bolster its legal framework.

Proponents of shifting the CIA’s part of the program to the Pentagon are becoming more vocal.

“I think that the discussion about moving aspects of the drone program from the CIA to the Defense Department, what that will do in practice is introduce a much greater degree of transparency,” Michčle Flournoy, Pentagon policy chief during Obama’s first term and now a private consultant, said during an April 17 forum in Washington. “If it’s on the Defense Department side, there will be much greater transparency in terms of reporting on what’s happening.”

The buying plans of the CIA and Pentagon say a lot, too, about the program’s staying power.

Analysts say the spy agency is increasing the size of its Predator fleet. And while the Pentagon’s 2014 budget request seeks less for UAVs than in recent years, one senior official said the military has no plans to exit the unmanned aircraft business.

Marcus Weisgerber in Washington contributed to this report.

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