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April 29, 2013

Experts Want More Transparency on Legal Basis for U.S. Drone Program


A panel discusses the U.S. drone program during the Section of International Law Spring Meeting.

The U.S. should have more transparency and accountability in its drone program, particularly the legal basis for the attacks, according to experts who spoke at the _’s Section of International Law Spring Meeting.

“Transparency has been a big issue,” said David Glazier, a professor of law at Loyola Law School in Los Angeles. “We really do need to know more about what’s going on in order to form informed judgments about the legality of our government’s conflict.”

Drones, unmanned aircrafts guided by remote control, are increasingly used by the U.S. government for targeted killings abroad, especially in cases of suspected terrorists.

Glazier indicated that he believes the U.S. is in an armed conflict with al-Qaida and can therefore invoke relevant international laws regarding the use of lethal force. But he added that those laws place constraints on whom the U.S. can target and where it can target them.

“From the information that is publicly available, one can assume the United States’ selection of targets has been overbroad and that we are in fact striking individuals who, as a matter of international law, don’t fall into the permissible set of targets,” Glazier said.

Jennifer Daskal, a fellow at Georgetown University’s Center on National Security and the Law, focused on the authorization for use of military force, or AUMF, which Congress passed just three days after the Sept. 11, 2001, terrorist attacks. It gives the president the power 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 Sept. 11, 2001.”

“There is an incredible need for much greater transparency as to the legal standards and the practices that are being carried out,” she said, but then added, “According to what we can tell, the authorization for military force provides the domestic law authorization for almost all, if not all, of the strikes that have taken place to date.”

Daskal expressed concerns, however, about recent pushes to expand the AUMF to target new groups or to create a new AUMF that allows the president to designate which groups the government can target.

She argued against both of these actions, stating that the government should instead repeal the current AUMF because the specific conflict that it references is coming to an end, as al-Qaida’s operations are increasingly desiccated, and the government has other methods for handling threats of terrorism.

“The U.S. should increasingly shift its focus to relying first and foremost on law enforcement authorities and counterterrorism cooperation as a means of dealing with international terrorism threats, with the knowledge and the expectation that the president can and should exercise self-defense authorities if and when an actual imminent threat cannot be dealt with through other means,” Daskal said.

Chris Anders, senior legislative counsel at the American Civil Liberties Union, pointed out Congress’ “complete failure” to provide adequate oversight of the drone program.

“There are 4,700 people dead. Four of those are U.S. citizens. We have so little to work with in terms of what the actual oversight has been,” Anders said, adding that the Obama administration is also to blame. “The problem is that … without having an explanation from the administration of what they think their legal authority is for running this program and then how they are actually applying it in practice, we are all left guessing.”

Anders urged the ABA to engage in this issue.

“This break with the rule of law is an area where I think the ABA has a real role and should be stepping up with a real commitment on this issue to restoring the rule of law in this area,” he said. “Any claim that we are following the rule of law, when nobody knows what the rules are except a very tight-knit group of people, is a farce.”

Ronald Bettauer, a visiting scholar at George Washington University Law School, moderated the panel, “Targeted Drone Killings by the U.S. Government: Due Process Meets the Battlefield.”