Two LA Times Op-eds Oppose Obama's Unilateral Drone War
February 19, 2013 • 11:21AM

The Los Angeles Times ran two op-eds, both dated Feb. 17, that make different, but related, legal cases in favor of putting President Obama's drone war, with its kill lists, under much closer scrutiny. The first, by former GOP Rep. Tom Campbell, who served five terms in the Congress is now the dean of Chapman University Law School, argues that the 2001 Authorization to Use Military Force doesn't cover Obama's drone war and Congress needs to replace it. The second, by Vicki Divoll, a former deputy legal advisor to the CIA's Counterterrorism Center and former general counsel to the Senate Intelligence Committee, says that the law can't be what the DoJ says it is in its now infamous white paper.

Campbell argues against both the president having unilateral authority to put people on the kill list and against a FISA-like court overseeing the process (an idea, however, endorsed by CIA nominee John Brennan) because judges don't have thge training to consider the value of the target and the likelihood of collateral damage. Furthermore, "this approach confuses the government's role in prosecuting criminals with the government's role in carrying out a war."

Nor is the normal Congressional oversight process adequate," Campbell says. Instead, what is needed is a new resolution in the pattern of the 1973 War Powers Act, which would provide for the necessary congressional review of ongoing hostilities. "Congress should pass a new resolution to cover drone attacks, and the Supreme Court should decide its constitutionality," Campbell concludes. "In so doing, the balance of powers would be restored. The court would be fulfilling its appropriate constitutional responsibility, and if this approach were upheld, so would Congress and the president."

In contrast, Divoll blasts the legal reasoning reflected in the DoJ white paper on lethal operations against American citizens overseas. She notes that the white paper relies, in part, on the Supreme Court's 2004 Hamdi decision, to conclude "that there are no due process problems with a drone program that targets Americans." The problem with that is, she demonstrates, is that Obama's DoJ cherry-picked that decision in such a way to portray it as doing the opposite of what it actually does. In the Hamdi case, the Supreme Court actually determined that an American citizen does have the right to challenge his detention in the federal court system, even if he was captured on a foreign battlefield. That logic, Divoll argues, also applies in the case of targeted killings. "If the executive cannot act alone when an American's liberty is at stake in the post-9/11 war on terrorism, the Supreme Court would be at least as concerned when an American's life is on the line," she writes. "The court has always ruled that the more crucial the individual interest at stake, the more 'process' is due."

"The Obama administration continues to fight to keep the specific issue of targeted killing from reaching a court for review and decision," Divoll concludes. "So we have only our objective reading of the decision in Hamdi to tell us what the law is. It cannot be what President Obama's lawyers would have us believe because when President Bush's lawyers made these same arguments, they lost."