(Photo By Flickr user SurfaceWarriors)

By Robert Bradley

Apparently the answer to the above question is at best a ‘not sure,’ and perhaps at worst a definitive no. Testimony by John Brennan, who is credited by some with the development of military drone usage during the Bush administration, during his confirmation hearings to be the Director of the CIA brought greater public attention to the use of drones to kill American citizens abroad who were suspected terrorists. This testimony followed the release of a memo by the Department of Justice that laid out the arguments to justify presidential kill orders in regard to American citizens in other nations.

The basic argument is that certain American citizens due to their membership in al-Qaida or affiliated groups may constitute a sufficient imminent threat to the United States to justify their killing by a drone strike in another nation. A determination of the nature of the threat is made apparently by the President in consultation with select military and Department of State advisors. The process used to make the determination and the identity and number of advisors are known to no one outside the select group that makes the decision. Even members of the Senate Intelligence or Foreign Relations Committees are in the dark about details on the process of issuing a presidential kill order.

The underlying rationale for this argument is that al-Qaida and similar terrorist organizations are not conventional enemies and do not engage in conventional warfare. Members of such groups do not typically wear uniforms, hide among civilian populations, and don’t use conventional military techniques. Thus conventional rules of military engagement should not apply to dealing with members of such organizations.
This rationale was articulated by Senator Durbin of Illinois on a recent morning talk show when he stated that the nation has to strike a new constitutional balance to deal with the challenges that we are facing today. He said this in response to questions about the president’s drone policy. Yet a little more than a year ago the Defense Department’s General Counsel, who is the chief military lawyer for the nation, argued that conventional legal principles must be used even against unconventional enemies, such as al-Qaida, that do not abide by the rules of warfare. If conventional legal principles are not followed then the nation runs the risk of having its efforts discredited, stirring controversy, and inviting challenges to its policies.

In his recent State of the Union address, President Obama announced that his administration is working tirelessly to develop a legal framework for the use of various counter-terrorism techniques. Though drones were not mentioned specifically, hopefully the framework would include rules on their usage particularly by an administration that has tremendously increased their deployment during the past four years. Also, the telling comment by Brennan during his confirmation testimony where he could come up with only one suspected American citizen terrorist who had been captured rather than killed through an authorized drone strike suggests the need for the implementation of a legal framework.

Yet for those who think that al-Qaida presents a novel twist to the application of conventional legal rules and modifications of the constitutional principles on due process and executive war powers are needed, then you might want to read the Milligan opinion authored by Justice David Davis. That opinion written in the 1860s dealt with whether the Constitution applied to those who were not conventional enemies and did not engage in typical warfare. At that time, the Court said the Constitution is the law of the land, and applies equally in times of war and peace. Hopefully, the Obama administration heeds those sentiments in the drafting of its legal framework on the use of counter-terrorism techniques.

Bob Bradley is solely responsible for the opinions expressed above. These opinions do not necessarily reflect those of WJBC, Radio Bloomington or Cumulus Media staff or management.

Bradley was a full-time professor in the Department of Politics and Government at Illinois State University where he has been since 1982. He has received several recognitions including: Carnegie Scholar for Civic Engagement, Constitution Trail Friend of the Year, and Faculty Star distinction by ISU Athletics. He dearly loves his wife, Reenie, of more than 25 years, and his daughter, Erin. He is an avid reader, devout sports enthusiast, gardener, golfer, and bird watcher.