Limit the Next President’s Power to Wage Drone Warfare

FUENTE: NewYorkTimes, por 

WHEN Barack Obama took office as the reluctant heir to George W. Bush’s “war on terror,” he renounced some of his predecessor’s most extreme policies. There is one Bush-era policy, though, that President Obama made emphatically his own: the summary killing of suspected militants and terrorists, usually by drone.

In less than a year, the president will bequeath this policy, and the sweeping legal claims that underlie it, to someone who may see the world very differently from him. Before that happens, he should bring the drone campaign out of the shadows and do what he can to constrain the power he unleashed.

President Bush started the drone wars, but Mr. Obama vastly expanded them. Almost entirely on his watch, United States strikes have killed as many as 5,000 people, possibly 1,000 of them civilians. The president approved strikes in places far from combat zones. He authorized the C.I.A. to carry out “signature strikes” aimed at people whose identities the agency did not know but whose activities supposedly suggested militancy. He approved the deliberate killing of an American, Anwar al-Awlaki.

The president also oversaw an aggressive effort to control the public narrative about drone strikes. Even as senior officials selectively disclosed information to the news media, his administration resisted Freedom of Information Act lawsuits, arguing that national security would be harmed if the government confirmed drone strikes were taking place.

The administration also argued in court that federal judges lacked the authority to say whether drone strikes were lawful. It refused to release the evidence that it claimed made Mr. Awlaki a lawful target. In lieu of information, the administration offered assurances that the president and his aides were deeply moral people who agonized over authorizing lethal force.

But as this election season has underscored, powers this far-reaching should not rest solely on the character of the president and his advisers. In a democracy, the ability to use lethal force must be subject to clear and narrow limits, and the public must be able to evaluate whether those limits are being respected. Mr. Obama observed almost three years ago that “the same human progress that gives us the technology to strike half a world away also demands the discipline to constrain that power.” At the very least, the president has the responsibility to ensure that drone strikes are subject to meaningful oversight.

The president should begin by publishing the Presidential Policy Guidance,a document that has provided the legal and administrative framework for the drone campaign since 2013. In response to litigation, the administration informed a federal judge last week that it would release parts of the document, but it remains to be seen how extensive the disclosure will be and whether it will be accompanied by a broader reconsideration of the secrecy surrounding the program.

The president should also release the legal memos that purport to justify drone strikes away from battlefields. Courts have compelled the administration to release portions of two of these memos, but the public should have access to all of the government’s legal reasoning about who may be targeted, where and for what reasons. The government has a legitimate interest in protecting properly classified information, but the law behind the drone program should not be a secret.

The president should also make it the country’s default practice to acknowledge all drone strikes — not just those carried out on conventional battlefields, as in Iraq and Syria. To facilitate this shift toward greater transparency and to strengthen congressional oversight, he should withdraw the C.I.A.’s authority to carry out drone strikes and provide that any future strikes will be authorized and carried out by the Department of Defense.

On Monday, the president’s chief counterterrorism adviser said that the government intended to disclose annual assessments of casualties from lethal strikes “outside areas of active hostilities.” This information will be of limited use to the public, however, unless the government also discloses information about individual strikes — when and where they took place, and numbers of casualties.

Finally, the president should establish a policy of investigating and publicly explaining strikes that kill innocent civilians, and of compensating those victims’ families. After an American drone strike last year killed two Western hostages, Warren Weinstein and Giovanni Lo Porto, the government apologized, opened an investigation and said it would offer compensation. It should do the same when drone strikes kill or maim innocent Pakistanis, Yemenis and Somalis.

These kinds of changes, of course, will not quiet the drone campaign’s critics. Many of those critics believe, as we do, that the campaign is broader than international law permits, that congressional oversight should be far more stringent and that, at least in some circumstances, the lawfulness of strikes should be subject to after-the-fact review by the courts.

But at a minimum, the changes we propose would allow for a more informed debate about a subject that urgently needs one, and they would create new, if modest, checks against overreach and abuse. Equally important, the president could make the changes we propose on his own in the limited time he has left in office.

President Obama has established a dangerous precedent, and consequently whoever prevails in November will inherit a sweeping power to use lethal force against suspected terrorists and militants, including Americans. The new president, whether a Democrat or a Republican, should also inherit policies that limit that power.

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