IPSA World Congress 2014: Panel RC Methodological Pluralism in Judicial Analysis. The Limits of Law on Executive Power: Post-9/11 Challenges

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1 IPSA World Congress 2014: Panel RC Methodological Pluralism in Judicial Analysis The Limits of Law on Executive Power: Post-9/11 Challenges Michael C. Tolley 310 Renaissance Park Northeastern University Department of Political Science Boston, MA USA Paper prepared for presentation at the IPSA World Congress, July 19-24, 2014, Montréal, Québec, Canada.

2 The Limits of Law on Executive Power: Post-9/11 Challenges Michael C. Tolley, Northeastern University Abstract Are there any effective legal constraints on executive action taken in the name of national security? This paper seeks to answer this question by examining President Barack Obama s expansive use of unmanned aerial vehicles or drones against suspected terrorists and the National Security Agency s surveillance programs. After describing the nature and scope of executive power vested by Article II of the U.S. Constitution in the office of the president and tracing its historical development in the United States, I examine whether the drone and surveillance programs are consistent with the U.S. Constitution, domestic law, and the norms of international humanitarian law. My aim is to understand more fully the extent to which law both domestic and international can be expected to constrain or limit executive action taken to promote national security in the post-9/11 era. Introduction In his classic book, Foreign Affairs and the United States Constitution (1996), Louis Henkin asked the following questions: [D]oes the Constitution promote an effective system for the governance of U.S. foreign relations at the turn of a new century? [T]o what extent and in what measure does our foreign affairs system meet the demands of the rule of law, popular sovereignty and democratic government, separation of powers and limited government, respect for individual rights? 1 In that work he catalogued the standard list of checks on executive power checks based on the text of the Constitution, the structure of the federal government, Congress, courts, and the electoral system. He then showed how each was lacking in ways that risk damaging or undermining the nation s commitment to rule of law. 1 Louis Henkin, Foreign Affairs and the United States Constitution, 2d edition (Oxford University Press, 1996), p

3 In this paper I focus on legal checks, that is, the checks that you would expect to make a difference in a constitutional democracy that rests on the foundation of rule of law. By legal checks I mean the restrictions, constraints, or limitations on the exercise of executive power set by the U.S. Constitution, federal statutes, and international humanitarian law. The limits of law mentioned in the title is a double entendre. In one respect, limits of law means law setting the outer boundary of lawful executive action and, in turn, establishing the line between lawful and unlawful executive action. On the other hand, limits of law means the inherent weakness of domestic law including constitutions and statutes and international humanitarian law including the Geneva Conventions and the Additional Protocols to provide effective protections against the exercise of prerogative-like powers by the executive branch in times of crisis and national emergency. In short, the subtle distinction is between law as boundary line delineating what is permitted and what is not, and law as effective restraint used to prevent or sanction the exercise of unlawful action. Where these questions about law and executive power are the most vexing are in the area of national security. Efforts to constrain some of the policies undertaken by the United States in response to the threats of terrorism in the post-9/11 era have revealed the limits of law in this area. Since 2001, presidents (both Republican and Democratic) have taken actions of questionable legality in the name of national security. For example, the Bush Administration ( ) initiated an aggressive counterterrorism policy that included the capture, extraordinary rendition, and indefinite detention of suspected terrorists, and, once in custody, the use of enhanced interrogation techniques (that is, torture ), and expanded electronic 2

4 surveillance both domestically and abroad. 2 Notwithstanding the decision not to use the phrase war on terrorism, the Obama Administration (2009 to present) continued many of its predecessor s policies and greatly expanded two in particular the use of drones in a targeted killing program against suspected members of al Qaeda and the operation of a mass electronic data mining surveillance program. The extent to which law can limit these two programs in particular and constrain executive power in the area of national security more generally is the subject of this paper. National Security after 9/11 The events of 9/11 changed so much. The executive branch was reorganized to meet the threat of global terrorism 3 and many new counterterrorism policies were initiated. But today, almost thirteen years later, few Americans view terrorism as the top national priority. In January 2014, Gallup reported that most Americans placed the economy, education, healthcare, and Social Security/Medicare, above terrorism. 4 Though the issue s urgency may have fallen in American public opinion, the threat of violence continues as evidenced by the Marathon Bombings in Boston, Massachusetts in April 2013 and President Barack Obama s recent speech at the United 2 See generally, Richard Clarke, Against All Enemies: Inside America s War on Terror (Free Press, 2004); David Cole, ed., The Torture Memos: Rationalizing the Unthinkable (The New Press, 2009); Louis Fisher, The Constitution and 9/11: Recurring Threats to America s Freedoms (University Press of Kansas, 2008); Jack Goldsmith, The Terror Presidency: Law and Judgment inside the Bush Administration (W. W. Norton, 2007); Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (Anchor, 2009); James Risen, State of War: The Secret History of the CIA and the Bush Administration (Free Press, 2006). 3 Before the creation of the Department of Homeland Security, homeland security activities were handled by more than 40 different federal agencies. The Department of Homeland Security became operational on January 24, 2003, following the reorganization plan submitted by President Bush in accordance with Section 1502 of the Homeland Security Act (2002). 4 Joy Wilke and Frank Newport, Democrats and Republicans Differ on Top Priorities for Gov t, Gallup Politics, January 28, Available at 3

5 States Military Academy warning that the country is now facing a new, more diffuse threat from extremists in the Middle East and Africa. 5 President George W. Bush s war on terrorism may have started as the war against the Taliban in Afghanistan, but his administration expanded it to include the war in Iraq and the efforts to dismantle and destroy al Qaeda s network around the globe. When President Obama entered office in January 2009, he spoke out against some of the Bush-era policies and signaled the end to most, but not all, of the counterterrorism programs that had been implemented by his predecessor. Though he ended the Bush Administration s use of torture within the first three months and substituted the phrase overseas contingency operations for global war on terrorism, 6 his promise to close the military prison at the Guantánamo Bay Naval Base proved to be too politically challenging and, thus, remains unfulfilled. The two programs that President Obama continued and are the subject of this paper involve the drone targeted killing program and the NSA s mass electronic surveillance program. The targeted killing and electronic surveillance programs raise serious questions about the capacity of law to set effective limits on the executive when it comes to national security. Hina Shamsi, who directs the ACLU s National Security Project, called the targeted killing program one of the most extreme and dangerous forms of authority that the executive branch can claim the power to kill people based on vague and shifting legal standards, secret evidence and no judicial review even after the fact. 7 Though the power to spy on Americans communications may not be as extreme or dangerous as the power to kill, what we learned as a 5 Mark Landler, Obama Warns U.S. Faces Diffuse Terrorism Threats, The New York Times, May 28, Scott Wilson and Al Kamen, Global War on Terror Is Given New Name, Washington Post, March 25, Tom Cohen, When Can a Government Kill Its Own People? CNN, February 11, Available at 4

6 result of the documents Edward Snowden released last year to The Guardian and the Washington Post is that this program makes many of the same claims for expansive executive power based on national security. 8 My analysis of the legality of these national security programs begins by examining the nature and scope of executive power in U.S. constitutional law. Does Article II of the U.S. Constitution include John Locke s concept of prerogative power defined as the power to act according to discretion, for the public good, without the prescription of law, and sometimes even against it? Did the framers of the U.S. Constitution vest such broad and expansive powers in the executive branch of the new national government? The debate over the nature and scope of executive power resonates today as presidents in the post-9/11 era seek to justify actions in the name of national security that have long been condemned by domestic and international humanitarian law. Advocates on both sides of the issue lawyers in the Administration and in such groups as the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation have looked for answers to these fundamental questions in the history of the making of the U.S. Constitution, the early experiences of governance at both the state and national levels, and the efforts by courts to define the outer limits of executive power in cases brought during times of crisis and national emergency. The Nature and Scope of Executive Power Are there any effective legal constraints on the president s power (1) to order or direct the CIA or Department of Defense to use armed drones to attack and kill suspected members of al Qaeda 8 See Glenn Greenwald, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State (Metropolitan Books, 2014); Luke Harding, The Snowden Files: The Inside Story of the World s Most Wanted Man (Vintage, 2014). 5

7 and its affiliates, and (2) to order or direct the gathering of intelligence from the mass electronic communications of Americans both in the United States and abroad in an effort to discover and disrupt terrorist plots? The answers to these two questions turn on what is arguably one of the oldest controversies in American constitutional history: the nature and scope of executive power during times of crisis and national emergency. The idea that the President of the United States possesses prerogative power, or what John Locke defined as the "power to act according to discretion, for the public good, without the prescription of the Law, and sometimes even against it," 9 is deeply problematic for those concerned about the need for constraints on executive power even in times of crisis and national emergency. The problem of presidents acting without the prescription of law and sometimes even against it can be traced to the inherent ambiguity of the concept of executive power at the time of the framing of the U.S. Constitution. Revolutionary America was deeply suspicious of, and hostile to, executive power. The Declaration of Independence chronicled the abusive actions of King George III. The advocates for independence and the drafters of the first state constitutions associated unchecked executive power with monarchical forms of government and questioned its compatibility with republican ideals and the rule of law. But the early experiences of governing in the states and under the first attempt at national government with the Articles of Confederation revealed to the framers of the U.S. Constitution the need for greater executive authority. The state constitutions drafted immediately after the break with England created weak executive branches. The definitions of executive power in these early documents were often vague and indeterminate. However, it was not long before Americans realized that effective government required more powerful executives than they had initially allowed. This was true 9 John Locke, Second Treatise on Civil Government, Chapter 14, Of Prerogative, Section

8 both at the state level, where states subsequently amended their constitutions to establish governors with greater powers, and at the national level, where the Articles of Confederation, which lacked any executive authority, would be replaced by the U.S. Constitution, which did. The delegates to the Constitutional Convention were steeped in this ambiguous view of executive power. They knew that any changes they recommended to the existing system of government would have to include a provision for an independent executive, but they did not necessarily know what its powers would be, how it would be composed, how it would be selected, or how long its term would be. In Original Meanings, Jack Rakove explained that the framers views on executive power were fraught with this confusion and this uncertainty found its way into the text: [T]he difficulties the framers encountered owed as much in turn to ambiguities in the definition of executive power as to ambivalence in its exercise. The first sentence of Article II of the Constitution did little to dissolve this ambiguity when it baldly stated that The executive power shall be vested in a president of the United States of America without explaining what executive power is. 10 Like every other part of the Constitution, Article II was the result of numerous compromises and bargains struck throughout the summer of The story of the Convention's struggles over the executive are well known: whether to have one person or more hold this power, whether to have an executive council, whether to allow the national legislature to select the executive, whether to make the term of office relatively short, whether the war power would be exclusive or shared, and so on. But what the framers did not fully understand was what executive power actually entails. As the delegates debated executive power, they soon realized that the concept was inherently indeterminate and that reaching agreement on the outer limits of 10 Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (Vintage, 1997), p (Emphasis in original). 7

9 this authority would be difficult, if not impossible, to achieve. In the end, they agreed that the executive power, nowhere defined, shall be vested in a president of the United States. (Article II, section 1) and included a vague listing of the president s roles or functions (Article II, sections 2 and 3). James Madison, who arrived at the Philadelphia Convention with the most comprehensive plan for the new national government, took what may be described as a cautious, pragmatic view of executive power. Though Madison favored a strong national executive, he never went as far as Alexander Hamilton or Gouverneur Morris. He understood and feared that executive power had a natural tendency toward growth and expansion, especially in times of crisis. In the famous Pacificus-Helvidius Debates in , Madison rehashed some of the same arguments he had made at the Convention on the need to check, but not unduly encumber, the executive. In rebutting Hamilton s (Pacificus ) argument for expansive executive power when it comes to war and the making of treaties, Madison (Helvidius) turned to the principle of separation of powers: In the general distribution of powers, we find that of declaring war expressly vested in the Congress, where every other legislative power is declared to be vested, and without any other qualification than what is common to every other legislative act. The constitutional idea of this power would seem then clearly to be, that it is of a legislative and not an executive nature. This conclusion becomes irresistible, when it is recollected, that the constitution cannot be supposed to have placed either any power legislative in its nature, entirely among executive powers, or any power executive in its nature, entirely among legislative powers, without charging the constitution, with that kind of intermixture and consolidation of different powers, which would violate a fundamental principle in the organization of free governments. 11 The U.S. Constitution contains several provisions that could be interpreted as emergency powers, including Congress power to suspend the writ of habeas corpus and the President s 11 Alexander Hamilton and James Madison, The Pacificus-Helvidius Debates of (Liberty Fund, Inc., 2007). 8

10 power to convene both houses of Congress "on extraordinary Occasions," 12 but it makes no mention of any power to act extra-legally. In fact, Article II, section 3 specifies that the President shall take Care that the Laws be faithfully executed. Though Hamilton and some other framers had assumed that executive power would naturally include Locke s concept of prerogative power, the text makes no provision for derogation from the Constitution during times of crisis. Because the Convention never settled the issue, the debate shifted subsequently to the courts, which were asked to decide cases of executive overreach during times of crisis and national emergency. Judicial Review of Executive Power during Times of Crisis and National Emergency In All the Laws But One: Civil Liberties in Wartime (1998), William Rehnquist, associate justice and later chief justice of the U.S. Supreme Court (1972 to 1986; ), surveyed the first 150 years of American history and cautioned against expecting too much from courts: It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. The laws will thus not be silent in time of war, but they will speak with a somewhat different voice. 13 Historical practice or the law in action supports Rehnquist s idea of law and courts speaking with a different voice during times of national emergency. It also helps to explain why courts cannot always be relied upon to uphold the rule of law and constrain executive authority. There are ample examples of executive action supporting the maxim inter arma enim silent leges ( in time of war, the law falls silent ). During the Civil War, President Abraham 12 U.S. Constitution, Article I, Section 9 and Article II, Section William Rehnquist, All the Laws but One: Civil Liberties in Wartime (Alfred A. Knopf, 1998), pp

11 Lincoln suspended the writ of habeas corpus and established military courts to try those suspected of being disloyal to the Union. Despite the clear language in the Constitution reserving the power to suspend habeas corpus to Congress, Lincoln exercised it on several occasions, including the time when John Merryman and other Southern sympathizers were arrested in Baltimore for harassing Union troops passing on their way to Washington, D.C. Merryman s request for a writ of habeas corpus came before Chief Justice Roger Taney, who was sitting as Circuit Justice in the case. Chief Justice Taney granted the writ, and criticized the President for overstepping his constitutional authority: With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law. 14 The court issued the writ, but Lincoln ignored it. Merryman remained in jail until he was indicted later for conspiracy to commit treason. He was eventually released on bail, but was never tried for the offence. President Lincoln also claimed he had the power to establish military tribunals and try civilians who were suspected of aiding the Confederate war effort. Lambden Milligan, a civilian living in Indiana, was arrested and charged with plotting with other Southern sympathizers to free Confederate prisoners of war. He was tried, convicted, and sentenced to death by a military court. Before the sentence could be carried out, the war ended. Milligan petitioned for a writ of 14 Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No 9487). 10

12 habeas corpus, and correctly sensing the importance of the issues raised in this case, the lower federal court referred the case to the U.S. Supreme Court. In Ex parte Milligan (1866), the Supreme Court overturned Milligan s conviction, ruling that the accused was entitled to a civilian trial so long as the civilian courts were open. Because the civilian courts in Indiana had been operating even as the war waged, the Court concluded that Milligan s trial before a military tribunal was unlawful. Justice David Davis, writing for the Court majority, reasoned that the Constitution applied equally during times of war and peace: The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false. 15 It is important to remember that this powerful statement on the need to respect law during times of national emergency came after the war had ended. In contrast, the Supreme Court let stand President Lincoln s orders to suspend habeas corpus, refused to review Ex parte Merryman even after the president had ignored the lower court s decision to issue the writ, and did not object to the Executive Branch s establishment and use of military tribunals in other cases during the war. It is also worth noting that the Court split five to four on why Milligan s conviction by a military tribunal should be overturned. Though the four justices who joined Justice Davis opinion believed military trials were always unconstitutional, the three justices who joined Chief Justice Salmon Chase s concurring opinion believed that the use of military trials was permitted if Congress had authorized them. Since the military tribunal that tried and convicted Milligan was authorized by the President, and not Congress, they ruled in favor of the petitioner. The 15 Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). 11

13 Supreme Court s unanimous opinion in Ex parte Milligan may be remembered most for its powerful statement supporting rule of law during times of war, but the actual experience in the 19 th century and even more so in the 20 th comes closer to Rehnquist s idea of law speaking with a different voice. In 1918, the year after the United States entered World War I, Congress passed the Sedition Act. 16 The Act made it a crime to speak out against the war on the theory that dissent would interfere with the government s recruitment efforts. More than 2,000 individuals, most of whom were members of the Socialist Party, were prosecuted under this Act. In one such case, Charles Schenck was tried and convicted for publishing an anti-war pamphlet. He appealed on First Amendment grounds, but the Supreme Court, in Schenck v. United States (1919), upheld the conviction. Justice Oliver W. Holmes, writing for a unanimous court, ruled that freedom of expression may be restricted during times of crisis: The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. 17 The Supreme Court modified the clear and present danger test later in Brandenburg v. Ohio (1969), 18 but its decision in Schenck stands as reminder that fundamental First Amendment rights cannot be expected to prevent a government determined to take all actions deemed necessary to meet the crisis. 16 Pub. L , 40 Stat U.S. 47 (1919) U.S. 444 (1969). 12

14 In 1942 the question left over from Ex parte Milligan (1866) arose again when eight German saboteurs were captured on American soil. Since the civilian courts were open, the issue was whether they could lawfully be tried in military tribunals. President Franklin D. Roosevelt determined that the saboteurs were unlawful enemy combatants and ordered them tried in military tribunals. In Ex parte Quirin (1942), 19 U.S. Supreme Court upheld the military trials, in effect, permitting derogation from the fundamental rights to due process (Fifth Amendment) and trial by jury (Sixth Amendment). In so doing, the Court distinguished Ex parte Milligan on the narrow grounds that the German saboteurs were unlawful enemy combatants, and Milligan was not. So long as the accused were unlawful combatants captured during times of war, the Supreme Court sanctioned the use of military trials, even if the civilian courts were open. Two months after the Japanese attacked Pearl Harbor President Roosevelt made one of his most controversial wartime decisions. On February 19, 1942, he signed Executive Order 9066, which authorized the Army to designate military areas from which any persons may be excluded. After having designated the west coast of the United States a sensitive military area at risk of sabotage by people of Japanese ancestry, the Army ordered the forced removal of more than 120,000 people to so-called relocation camps. Many who were forced to leave their homes and businesses were American citizens, and some even had sons in the American armed forces. Fred Korematsu was a Japanese-American citizen who defied the order to relocate. He was tried and convicted for failing to follow the order. On appeal, the U.S. Supreme Court U.S. 1 (1942). 13

15 affirmed his conviction. Justice Hugo Black s majority opinion endorsed the view that courts must defer to the executive authority s assertion of military necessity during wartime and not let concerns about individual rights trump national security policy: The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion Here, as in the Hirabayashi case we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it. We uphold the exclusion order. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. But hardships are part of war, and war is an aggregation of hardships. 20 The nation soon realized the enormity of the problems with this wartime policy and sought to repair the damage. In 1948 Congress passed the Evacuation Claims Act, which gave internees the right to file claims for lost or damaged property as a result of the relocation and detention program. The Supreme Court s decision in Youngstown Sheet and Tube v. Sawyer (1952) 21 suggests that the nation s highest court also realized the error of its wartime decisions on executive power, including Korematsu, and sought to restore executive power to its proper constitutional foundation. In this case, the Court struck down President Harry Truman s executive order directing the Secretary of Commerce (Sawyer) to seize and operate the nation s steel mills to avert a threatened strike at the time of the Korean Conflict. Justice Black s opinion of the Court explained that the President did not have the inherent power to act in this case to seize private property and that all executive action must be traced either to the president s Article II powers or an act of Congress: U.S. 214 (1944) U.S. 579 (1952). 14

16 The President s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. It is clear that, if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. The order cannot properly be sustained as an exercise of the President s military power as Commander in Chief of the Armed Forces.Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. Justice Black s Youngstown opinion may have stated (or restated) the principle of rule of law limits on executive power during times of crisis, but it was Justice Robert Jackson s concurring opinion that established what would become the main framework for evaluating the constitutionality of executive action. Justice Jackson begins with the premise that executive power is not fixed or static, but fluctuates depending upon whether Congress had authorized the action. Though his three-part framework is helpful in demonstrating that the line between lawful and unlawful executive action is contingent upon the will of Congress, it is silent on the question of whether there are any outer limits on congressionally authorized actions: 1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right pus all that Congress can delegate. 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. The trend toward ever-greater expansions of executive power has been due, in part, to the fact that there is an element of prerogative power in all executive actions taken in behalf of national security, but most of the expansions have been the result of congressional 15

17 authorizations. The wartime and emergency powers of U.S. presidents since World War II have increased as much by congressional delegations of authority as they have by presidential assertions of inherent power. 22 Statutory delegations of authority have expanded vastly the scope of lawful executive action. When a statute, such as the Authorization for Use of Military Force, 23 passed by Congress in the weeks after 9/11, gives presidents all the power they would want or need in order to deal with an emergency, presidential action rarely falls outside the line. Congressional delegations of authority after 9/11 conferred so much power on the executive all necessary and appropriate force that it undermines most criticism that the President is exercising unlawful prerogative power. Discretion and, in turn, aspects of prerogative power are part of nearly every exercise of executive power. Sometimes the congressional authorizations themselves allow or invite discretionary action even as they seek to curb or prevent other forms of executive action. Laws define not just the outer limit of lawful action, but the space within which the executive is authorized to exercise discretion. With the recognition of a place for discretionary action naturally comes the possibility of the exercise of power that exceeds a formal allowance. Section 215 of the USA Patriot Act is a good example. 24 This provision allows the FBI to order any person or entity to turn over any tangible things so long as the FBI specifies that the order is for an authorized investigation to protect against international terrorism. But 22 See generally, Steven G. Calabresi and Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press, 2008). 23 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. Pub. L (signed by President Bush on September 18, 2001). 24 USA PATRIOT Act, Pub. L (2001). Section 215. Access to Records and Other Items under the Foreign Intelligence Surveillance Act. 16

18 Section 215 soon became the legal basis allowing the NSA to collect cell phone data from Verizon as part of its surveillance program, code named PRISM. This points to one notable paradox of executive power: Attempts to curtail executive action often have the opposite effect. Instead of curtailing executive power, the proliferation of law actually has had the unintended consequence of increasing it. There is, perhaps, no better example of this paradox than the experience of the War Powers Resolution (1973). 25 The express purpose of the War Powers Resolution was to limit the war powers of the president after the misadventures in Southeast Asia. Even though the law was designed to rein in the power of the president to deploy military forces abroad, it has actually done more to expand than to contract those powers. The Resolution stipulates that the president must withdraw the armed forces of the United States from military engagements within ninety days of notifying Congress if Congress has not authorized continued military engagement. Despite Congress s intentions, the actual effect was to expand those very same powers by sanctioning unilateral war making by the president for up to ninety days. The notion that the president or executive branch agencies, such as the Department of Defense, CIA or the NSA, are ever allowed to exercise such enormous discretionary power is difficult to square with a commitment to limited government and the rule of law. But in a constitutional democracy that rests on the foundation of rule of law, the legal authority for such controversial executive actions as targeted killings and mass surveillance needs to be firmly established U.S.C

19 Targeted Killing Program The first drone attack against al Qaeda militants occurred in Yemen in 2002 and killed six individuals, one of whom was an American citizen. 26 The Bush Administration may have inaugurated the drone targeted killing tactic, but the Obama Administration has expanded it considerably. According to unofficial statistics compiled by the New America Foundation, there were 48 drone strikes during the Bush Administration and 321 from the time President Obama entered office. 27 As for casualties in the Pakistan drone campaign by both Presidents Bush and Obama, the New America Foundation reports the killing of between 1,618 and 2,780 militants and between 258 and 307 civilians (between 199 and 334 are recorded as unknown). 28 In the Yemen drone campaign against al Qaeda in the Arabian Peninsula, the New America Foundation reports 109 drone strikes and somewhere between 781 and 1,024 killed. 29 Estimates vary, but it is believed that drone attacks in Pakistan, Yemen and elsewhere have killed over 3,500 militants, including at least four American citizens. Estimates of civilian casualties by the New America Foundation range between 14 and 19 percent, 30 but all these figures are disputed by the administration. Is the drone targeted killing program lawful? Has the Obama Administration conducted this part of its national security policy consistent with the applicable laws of war, the Constitution, and the laws of the United States? According to Harold Koh, there is no prohibition under the laws of war on the use of technologically advanced weapons systems in 26 Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, UN Human Rights Council, 14 th Session (May 28, 2010), p New America Foundation, The International Security Program, International Data Site, (Figures last updated July 10, 2014). 28 Ibid. 29 Ibid. 30 Ibid. 18

20 armed conflict such as pilotless aircraft or so-called smart bombs as long as they are employed in conformity with applicable laws of war. 31 Whether the targeted killing program is consistent with the United States obligations in international law ultimately depends on how the operations were conducted: was the targeting consistent with the principles of precaution (taking all feasible measures to ensure the protection of civilians), distinction (requiring that attacks be limited to military objectives and that civilians not be the object of attack), and proportionality (requiring that attacks not be launched which will likely cause incidental loss of life or injury to civilians and which would be clearly excessive in relation to the anticipated military objectives)? It will also depend on the extent to which the state party is willing to disclose the criteria used in making the decision to launch a lethal attack, and provide independent supervision and oversight of the operations, including independent, prompt and effective investigations of alleged violations brought by victims or their families. In its recent report on the United States compliance with the International Covenant on Civil and Political Rights (ICCPR), the UN Human Rights Committee identified several concerns in connection with its drone targeted killing program: The Committee is concerned about the State Party s practice of targeted killings in extraterritorial counter-terrorism operations using unmanned aerial vehicles (UAV) also known as drones, the lack of transparency regarding the criteria for drone strikes, including the legal justification for specific attacks, and the lack of accountability for the loss of life resulting from such attacks. The Committee notes the State party s position that drone strikes are conducted in the course of its armed conflict with Al-Qaida, the Taliban, and associated forces in accordance with its inherent right of national selfdefense and are governed by international humanitarian law, as well as by the Presidential Policy Guidance that sets out standards for the use of lethal force outside areas of active hostilities. Nevertheless, the Committee remains concerned about the State party s very broad approach to the definition and the geographical scope of armed conflict, including the end of hostilities, the unclear interpretation of what constitutes an imminent threat, who is a combatant or civilian taking a direct part in hostilities, the 31 Harold Koh, The Obama Administration and International Law, Speech at the Annual Meeting of the American Society of International Law, Washington, D.C., March 25, Available at 19

21 unclear position on the nexus that should exist between any particular use of lethal force and any specific theatre of hostilities, as well as the precautionary measures taken to avoid civilian casualties in practice (arts. 2, 6, and 14). 32 The 2014 report issued by the UN Human Rights Committee concludes that the targeted killing program is inconsistent with the United States commitment to respect and to ensure the rights set forth in Articles 2, 6 and 14 of the ICCPR. As for the lawfulness of this program in domestic law, analysis focuses on the nature and scope of executive power under Article II of the U.S. Constitution and the powers delegated by Congress to the executive branch to meet the national security threat. The President as commander-in-chief wields significant authority over matters of national security, including the power to order and direct the use of lethal force to protect the American people. And, as previously explained, Congress in the Authorization for the Use of Military Force empowered the President 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, This express legislative authorization read with the President s powers as commander-in-chief appears to provide ample justification in U.S. law to employ armed drones against suspected members of al Qaeda and its affiliates. Still, questions remain about the legal justification for specific attacks, especially those targeting suspected terrorists who are U.S. citizens. As a result of a Freedom of Information Act (FOIA) lawsuit filed by the New York Times and the ACLU, the memorandum prepared by David Barron, titled Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations against Shaykh Anwar al-aulaqi, was released to the public in June Barron was Acting Assistant Attorney 32 UN Human Rights Committee, ICCPR, Concluding observations of the fourth report of the United States of America, April 23, Greg Miller, Legal Memo backing drone strike that killed American Anwar al-awlaki is released, Washington Post, June 23,

22 General in the Office of Legal Counsel (Department of Justice) when he prepared the memo analyzing the executive branch s legal authority to launch a lethal drone attack against Anwar al- Awlaki (also al-aulaqi), an American citizen described as a senior al Qaeda operative in Yemen who was involved in, among other activities, the 2009 Christmas Day underwear bomber plot. The Obama Administration had fought the memo s release and, in January 2013, the U.S. District Court ruled that the memo fell under one of the FOIA s exemptions. In April 2014, the U.S. Court of Appeals for the Second Circuit reversed, ruling that the government must make public the legal analysis known to be contained in the memo. Even after the Appeals Court ruled in favor of the New York Times and the ACLU and ordered the release of a redacted version of the memo, the Obama Administration requested more time to complete the process of redacting classified information and to decide whether to seek review of the Appeals Court s decision by the U.S. Supreme Court. In the meantime, political pressure mounted for the memo s release when the U.S. Senate threatened to filibuster Barron s nomination to the U.S. Court of Appeals for the First Circuit. The Obama Administration eventually relented. Once in the public domain, the memo revealed for the first time the detailed legal analysis used by the Obama Administration to determine if the planned drone attack against al-awlaki was consistent with both international and domestic law. The Barron memo (dated July 16, 2010) set forth the legal justifications for the planned drone attack. The analysis focused on two questions: (1) Does the foreign murder statute 34 incorporate the public authority justification? (2) Do the operations contemplated by the Department of Defense and the CIA encompass that justification? The government s main argument thus rests on the public authority justification, the legal concept that allows the 34 Foreign murder of United States nationals, 18 U.S.C. 1119(b). 21

23 government to take actions in emergency situations that otherwise and in other circumstances would be against the law. Barron writes: Against this background, we believe the touchstone for the analysis of whether section 1119 [of the Foreign Murder Statute] incorporates not only justifications generally, but also the public authority justification in particular, is the legislative intent underlying this criminal statute. 35 After analyzing all of the evidence of legislative intent we can find, he concludes that [t]here is no indication that, because section 1119(b) proscribes the unlawful killing abroad of U.S. nationals by U.S. nationals, it silently incorporated all justifications for killings except that public authority justification. 36 Although the foreign murder statute did not expressly include the public authority justification, Barron argues that it is available because Congress must have contemplated it as it had other defenses which were not provided for in the text, but nevertheless were understood to be part of federal criminal procedure. Barron turns next to the question whether the government s planned actions include that justification by first addressing the operations contemplated by the Department of Defense and then the operations contemplated by the CIA. This part of the argument relies heavily on the authority conferred by Congress in the Authorization for the Use of Military Force (2001). Because Congress had authorized the President to use all necessary and appropriate force against al Qaeda and its affiliates, Barron reasons, [t]he operation should be understood to constitute the lawful conduct of war and thus to be encompassed by the public authority justification. Accordingly, the contemplated attack, if conducted by DoD in the manner described, would not result in an unlawful killing and thus would not violate section 1119(b) Barron Memo, p. 17, Available at 36 Ibid., at p. 19 (emphasis in the original). 37 Ibid., at p

24 Barron came to the same conclusion with regard to the CIA: Based on the combination of circumstances that we understand would be present, we conclude that the public authority justification that section 1119 incorporates and that would prevent the contemplated DoD operation from violating section 1119(b) would also encompass the contemplated CIA operation. 38 The Barron memo indicated that the justifications in international law for the contemplated operations are based on its asserted right to self-defense and the right to use lethal force when the country is in armed conflict. 39 And he concludes that the participation of both the Department of Defense and the CIA would be consistent with the laws of war. Be that as it may, the case for the legality of the CIA s role in the targeted killing program is considerably weaker under international humanitarian law, a fact that the Barron memo failed to address. The international law of armed conflict explicitly bans civilian personnel not in uniform (in this case, CIA officials) from using lethal force. In the absence of armed conflict, international law permits the use of lethal force only when strictly necessary and it must be proportional. Given the lack of transparency with this program, there is no way to determine if the CIA s actions in Pakistan and Yemen were necessary to protect against an imminent threat or if other options, such as capture or non-lethal incapacitation, were unavailable. Whatever the circumstances may be, the CIA s involvements in the targeted killing program presents a greater risk of violating principles of international humanitarian law than the Barron memo admits. In 2013, two influential human rights groups presented new evidence of civilian deaths in U.S. drone strikes in Pakistan and Yemen. Amnesty International investigated nine strikes in 38 Ibid., at p Ibid., at pp

25 Pakistan between May 2012 and July 2013 and found that 30 civilians were killed in four of the attacks. Human Rights Watch investigated six strikes in Yemen since 2009 and found that 57 of the 82 people killed were civilians. One was Abdulrahman bin Anwar Al Awlaki, killed in October 2011 by a drone strike in Yemen. He was born in Denver, Colorado on August 26, 1995, and was the 16 year old son of Anwar al Awlaki, who was killed a week or so before in another drone strike. In his address at the National Defense University in May 2013, President Obama had this to say about this event: I would have detained and prosecuted [Anwar al-] Awlaki if we captured him before he carried out a plot, but we couldn t. And as president, I would have been derelict in my duty had I not authorized the strike that took him out. 40 There was not a word about civilian casualties, but he did acknowledge for the first time that four American citizens had been killed in the program. International pressure is building against the targeted killing program. In addition to the work of Amnesty International and Human Rights Watch, there has been a highly critical report of the UN s Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions concluding that there is a high probability the American program is in violation of international law. 41 President Obama s unease with the targeted killing program was revealed in the 2013 National Defense University address and he used the occasion to announce a new Presidential Policy Guidance on the use of drones. The policy directive included new standards for the use of lethal force, new requirements for the conduct of additional legal analysis by the Justice Department 40 Remarks by the President at the National Defense University, National Defense University, Washington, D.C., May 23, 2013, (document is not paginated). Available at 41 Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, UN Human Rights Council, Fourteenth Session, May 28, Available at 24