President Obama’s Unfinished Drone Legacy

Photo: Ret. General Wesley K. Clark addresses the conference. Holt Alden via Holt Alden

The abundance of news focused on the U.S. presidential election has left little room for the discussion of President Obama’s national security legacy. This intense spotlight on the controversial candidates limited projections of the long-term repercussions of President Obama’s policies and the precedents they have set for the next president. Two weeks ago, UCLA’s Burkle Center for International Relations, in conjunction with the Center for Near Eastern Studies and the International and Comparative Law Program, hosted a conference on President Obama’s drone legacy that specifically focused on the use of weaponized drones against terrorists. The conference consisted of two panels hosting, among others, distinguished Georgetown Law Professor Marty Lederman and Ret. General Wesley K. Clark, former Supreme Allied Commander of NATO Europe. The panelists spoke at length about international humanitarian law, human rights and the Bush Administration, tying each to President Obama’s foreign policy and national security framework.

Two very different, although not mutually exclusive, perspectives on President Obama were developed throughout the day. The first President Obama was depicted by Lederman and, to some extent, Ret. General Clark, describing President Obama’s use of drones against terrorists as responsible and restrained. They maintained that President Obama has only used weaponized drones in specific armed conflicts, restricting their use under the Presidential Policy Guidance (PPG) and maintaining the strikes’ legality in terms of international and domestic law. The other President Obama cut a darker figure, described by British attorney and human rights expert Alex Moorhead as a continuation of the Bush Administration’s secrecy and disregard for human rights. Moorehead chastised President Obama’s drone policies as blurring the lines between war and peace, setting dangerous precedents for drone strikes to be unrestricted in terms of geography and temporal scope.

Despite the two characterizations of President Obama, nearly all the panelists agreed on one thing: President Obama’s current drone policies must be amended by his successor. Most of the panelists also concurred that a Congressional oversight committee on drone use would perform an adequate check on presidential power. Moorhead went further, supporting the concretization of PPG into actual law, rather than just policy. Currently, the PPG will only act as a guide for future administrations and can be easily ignored or changed, whereas making it law would codify restrictions on future presidents’ drone use. President Obama’s drone legacy has now moved beyond his control. President-elect Trump must implement Congressional oversight and support new domestic laws restricting the use of weaponized drones to armed conflicts in specific countries for limited periods of time. These steps would protect a positive legacy for President Obama’s drone program, keeping executive power restrained.

Both the Bush and Obama Administrations have pursued counterterrorism policies that are designed to keep Americans safe. Weaponized drone use by the president is governed by two legal frameworks: international humanitarian law (IHL) and domestic statutes. IHL, also known as the Law of War or the Law of Armed Conflict, legalizes the killing of enemy combatants in an armed conflict. Cardozo Law Professor Deborah Pearlstein specified that killing as a first resort is only legitimate in this context. The classification of terrorists under IHL is key to placing limitations on drone strikes, as some argue that, as “unlawful combatants”, IHL does not apply to terrorists. Pearlstein laid the basic foundation of how terrorists fit into IHL, explaining that conflicts between state and non-state actors are called non-international armed conflicts, or NIACs.  Both President Bush and President Obama were able to define and characterize American conflict with terrorist groups through a global NIAC paradigm, controlling the story around its interaction with relatively new legal frameworks and, crucially, new technology. The lack of accountability and transparency regarding drone strikes has kept government policy hidden from American citizens, while rapidly developing technology has kept it from being restricted by domestic legislation or international law. Although the U.S. conflict with Al Qaeda, and now ISIS, seems to fit into the legal NIAC framework, the U.S. insistence on a global NIAC makes U.S. drone strike capabilities dangerously unrestricted in terms of location and time period, leaving questions concerning a timeline for the end of the war on terror and its current global reach unanswered. Pearlstein also argued that as the reach of IHL grows, supplanting domestic criminal law in more situations, the space for human rights law shrinks due to the further enabling and legitimizing of state power over individuals. President Obama’s persistent use of weaponized drones has set dangerous precedents for future administrations and other national governments that may support more extreme use.

Not all the panelists agreed that President Obama has continued the global NIAC against terrorist groups, and used the PPG as a specific example of his restraint. Conor Friedersdorf of The Atlantic stated that drone use is deliberative and discriminate, meaning it can pick out targets with little or no collateral damage. He and Lederman assert that the PPG does enhance these restrictions, setting barriers that further regulate the strikes. While the panelists agreed that the publishing of the PPG improved transparency within the Obama Administration, Moorehead focused on its limitations as a policy guideline, rather than domestic law. President-elect Trump could–and likely will–reject the PPG completely and follow his own interpretations of IHL and domestic law. Pearlstein also argued that transparency is less important than the lack of legal and political accountability. She emphasized the significance of scrutinizing the justifications for using weaponized drones in areas where legitimate and capable government does exist, such as Pakistan.

The creation of a Congressional oversight committee that monitors drone strikes and proposes legislation restricting the use of weaponized drones would create a necessary check on executive power. It would also allow Congress to contribute to the debate concerning the legality of weaponized drone usage outside of traditional battlefields and in sovereign states like Pakistan. Although President-elect Trump will likely reject any transfer of power to Congress, allowing greater congressional oversight would ensure respect for human rights and potentially spread the negative political ramifications of strikes with heavy civilian casualties and those targeting American citizens. A congressional oversight committee is a critical step towards reining in America’s weaponized drone usage. President Obama and other Commanders-in-Chief prefer drone strikes because they pose no risk to the soldiers involved, meaning the political risks of these killings are also lessened. This can incentivize leaders to use deadly force more frequently, an executive power that must be checked immediately. President-elect Trump must also support the codification of the PPG into domestic law, permanently restricting weaponized drone use and cementing a drone legacy of restraint and responsibility. The creation of checks and shared responsibility with respect to weaponized drone use may lead to political gains for both the president and Congress, while also creating spaces for human rights and legal weapons use. President Obama’s drone legacy depends on it.

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