As President Obama’s first term came to an end two foreign policy issues seemed to crowd the headlines: Benghazi, and confirmation hearings for new cabinet appointments. Another issue had been smoldering for some time but had yet to hit the fan. Questions about the use of Unmanned Aerial Vehicles, UAVs or more popularly drones (Predators, Reapers, Global Hawks, and others), were becoming more numerous and pointing especially with the approach of Senate confirmation hearings for a new CIA Director with the nomination of John O. Brennan.43 The discussion changed dramatically on Monday, February 4 when Michael Isikoff of NBC News obtained a Department of Justice White paper on the use of drones, with focus on when they could be used against an American national. An ACLU suit against the Federal government was also announced regarding the killing of an American born al-Qa’ida leader in Yemen, Anwar al-Awlaki. For the remainder of the week the subject of drones seemed to be the next issue that might define Obama’s foreign policy. Ironically, the immediate issues returned to a smolder by week’s end when the full DOJ policy document was released to Congress.44 Many questions erupted from Congress, especially upset about transparency and the fact that the administrations drone policy was not available to it, and the question of congressional oversight of the policy itself, the media, suggesting an administration cover-up, and certain members of the public questioning the apparent summary execution of an American citizen.
Granted there were significant reasons for some concern over the use of drones. At the top of the list was the generally held conclusion that the drone had become the weapon of choice in the fight against terrorism for the Obama Administration and that the number of drone strikes had increased dramatically under Obama with something of an alarming rise in the amount of collateral damage that went with them. The legality of their use had not been a major issue until the death of al-Awlaki which added certain constitutional concerns over individual rights, but was suddenly another area of worry.
Regular use of drones began under George W. Bush in 2004 but increased substantially under Barack Obama. Since that time there have been over 300 drone strikes, only 50 of them ordered by Bush. This is explained largely by new technology. The drone was something relatively new ten years ago, and have become more sophisticated, accurate, and numerous (from 50 to 7,500) since then. They are more precise, and cheaper than a cruise missile, and they eliminate the risk of an American casualty in a conventional air strike. Above all, they offer an alternative to boots on the ground. The downside has been the alarmingly high ratio of civilians killed in ratio to the killing of suspected terrorists, whether they be Taliban in Pakistan or al-Qa’ida in Pakistan or Yemen. Numbers vary, but the general figure for deaths by drone strikes is estimated at over 3,000 while only a quarter of that number have been enemy combatants. One figure claims that only one person out of 50 killed would be accurately identified as a true terrorist target (a horrifying 98% ratio of civilian deaths). Obviously this has produced a public relations nightmare in Afghanistan, Pakistan and Yemen. Accuracy is getting better and the alternatives are hardly endearing to an American public. As the preferred weapon of choice in Obama’s war on terror, the use of drones has been characterized as either personality strikes in isolated cases where the personal identity of the target is clear, or signature strikes where precise identity is not made but the target is an armed hostile. The latter may have become the “hallmark” of Obama’s drone policy, but it was a personality strike that was at the center of a firestorm in early February.45
On September 30, 2011, Anwar al-Awlaki, an American by birth, but a newly promoted “head” of al-Qa’ida in Yemen was targeted in a personality strike by a drone. It was a major success in efforts to decapitate al-Qa’ida and seemed particularly important in the wake of the death of Usama ibn Laden earlier in the year. The fact that al-Awlaki was American-born inspired questions about legality that strangely had rarely been asked since 2004. As a weapon of war did the drone demand some kind of additional justification beyond that which applied to a cruise missile, air strike by a piloted aircraft, or even a raid by a team of SEALs?46 In fact these were among questions that led the Obama Administration to try to outline something close to a legal rationale for the use of drones (potentially against an American national abroad) in a broader document that was summarized in the one produced by Isikoff in February. That rationale presented a series of necessary pre-conditions: that the target be determined by an informed high-level official as a ranking figure in al-Qa’ida (or the Taliban), who posed an imminent threat to the United States in a scenario where capture was not feasible and was done according to laws of war principles. The statement offered abundant areas for question, not the least of which was the meaning of imminent a word with broad meaning since the days leading up to the invasion of Iraq in 2003. The entire controversy seemed to come down on the head of John O. Brennan in his confirmation hearing of Thursday, February 7.
The timing of the Brennan confirmation proved curious; it presented the perfect opportunity for Senate members on the confirmation panel to critique the president’s drone policy through his nominee. After all, Brennan was considered a major architect of broad use of the drone in the CIA and was called “Dr. Drone” by one critic abroad.47 In fact, Brennan had been a long-time employee in the CIA going back beyond George W. Bush (some 25 years), and was considered a dependable counter-terrorism advisor by President Obama though something of a Bush hold-over. He did support the idea that the CIA should retain control over drone application rather than the Pentagon which caused some issues with then Secretary of Defense Leon Panetta, but it is not all that clear that he was unquestioning champion of the drone policy. In his testimony, Brennan noted that the use of drones has been “very disciplined and very judicious” as a “last resort.” He confirmed that detaining a terrorist for questioning would be the optimum circumstance, but was not always possible.48 Senator Dianne Feinstein, D-California, pointedly used the hearing to emphasize that the Justice Department had yet to give Congress eight Office of Legal Counsel opinions on the legal rationale for deadly strikes utilizing drones, a matter that was settled, more or less, by the end of the day when the full document was given to Congress. Clearly, the Senate, and Congress in general, wanted some increased transparency on this issue if not some degree of oversight.
In many ways queries about legality are strangely belated given the incredible powers granted the Executive Branch since 1993 in the name of national security and what became the war on terror. Sadly, as a part of this broader exercise, legal issues surrounding the use of drone seems perhaps already moot. Truth be told, following two acts of terror, the abortive first attempt to destroy the World Trade Center (1993) and the attack on the barracks in Dhahran, Saudi Arabia (1996), that had been associated with Usama ibn Laden and al-Qa’ida Congress granted expansive powers to the president via The Anti-terrorism and Effective Death Penalty Act (1996) which authorized the president to “…use all necessary means, including covert action and military force, to disrupt, dismantle and destroy international infrastructures used by international terrorists, including overseas terrorist training facilities and safe havens.”49 The act granted legal authority for President William Jefferson Clinton to launch two cruise missile strikes following two more terrorist attacks-a synchronized effort against American embassies in Nairobi, Kenya and Dar es Salam, Tanzania in 1998 both associated with Usama ibn Laden and al-Qa’ida, one against what was thought to be an al-Qa’ida unit outside the city of Khartoum in the Sudan, the other targeted what was believed to be the location of Usama ibn Laden himself in Khost, Afghanistan. The former was probably based on bad intelligence; the latter was a famous near miss. At the time no one knew the tragic significance of the latter miss, but no one questioned the legality of the actions. Following an attack on the USS Cole in Aden in 2000, and of course the events of 9/11/2001, clearly the work of Usama ibn Laden and al-Qa’ida, Congress again acted with the USA Patriot Act (October 26, 2001), The Authorization for the Use of Military Force (September 14, 2001), and the invasion of Afghanistan. President Bush, in his State of the Union Address of 2002, called for the Bush Doctrine including his notion of preventive war that, though very suspect, was never challenged even after the ill-advised invasion of Iraq in 2003. The Homeland Security Act (November 25, 2002) also effectively enhanced executive power. When Congress voted to allow the invasion of Iraq, the Iraq Resolution or the Iraq War Resolution-formally the Authorization for Use of Military Force Against Iraq Resolution of 2002 (October 16, 2002) yet another layer of executive power was granted to the Bush Administration. At this point to question the legality of a simple technical innovation in warfare given is hypocrisy at its limits. The necessary fact of the matter is that the 1996 Anti-terrorism Act had effectively already given a legal nod to drone attacks by referring to “all necessary means.”
Despite this, it seems that President Obama has never favored an unrestricted power to use drones without limitation or for every case scenario. Curiously, Obama made a pointed reference to this on The Daily Show with Jon Stewart on October 18, 2012, “…one of the things we’ve got to do is put a legal architecture in place, and we need Congressional help in order to do that, to make sure that not only am I reined in but any president’s reined in in terms of some of the decisions we’re making.”50 Concern over an unintended presidential precedent was also voiced by Obama in his reluctance to leave an “amorphous” military power to his successors.51
The Challenge of theArab Spring: From Cairo to Benghazi
History has proven that there will always be a foreign policy challenge that was not anticipated and proves to be a major or significant event.52 What has come to be called the Arab Spring, a series of popular risings against autocratic regimes from Tunisia in North Africa to Egypt, the Arabian Peninsula, the Persian Gulf, across Syria and even Iraq and Iran, surprised the world. It was particularly interesting given the broad and cross-national use of modern communication technology. It caused changes in government in Tunisia, Egypt, and Libya, and began a civil conflict in Syria that threatens the ruling regime of Bashar al-Assad.53 The movement began with the dramatic symbolic self-immolation of Mohammed Bouazizi on December 17 2010 in protest of the authoritarian rule of President Zine El Abidine Ben Ali. By January 2011 the Ben Ali regime was at an end, and communications by e-mail and cell phones were already spreading throughout North Africa and the Middle East. Anti-government demonstrations erupted in Libya igniting civil conflict, and in Egypt pressuring a change in government.
Depending upon particular political point of view, praise or blame has been attached to President Obama for what would occur. On June 4, 2009 Obama gave a major speech in Cairo, Egypt. It was intended as an attempt to bridge perceived differences between the West, especially the United States, and the Islamic world; it proved somewhat unsettling and therefore prescient in its support for constructive change in the region. Whether this speech can be cited as the inspiration for the Arab Spring or condemned for the same thing is not clear. Nor is it at all clear that the president anticipated what would soon follow. The Obama Administration was as surprised as any other government as the full impact of the Arab Spring unfolded. At once voicing support for human rights, and constitutional liberty and some support for the fall of certain regimes, there were also concerns about what would follow and how these events would pan out. Initially, there were differences of opinion about the Egyptian question: what would be the nature of a succeeding government and how to react to the fall of a stalwart pro-American ally in President Hosni Mubarak? There was a great deal of shuffling of diplomatic feet. Moreover, in Egypt , the elections that did take place did not result in the election of someone particularly favorable to American interests: Mohammed Morsi, a leader of the Muslim Brotherhood. Potentially difficult situations developed in Oman, Bahrayn and Saudi Arabia as well. But clearly the most dramatic concerns involved Libya and Syria.
The case of the uprising in Libya deserves some consideration given the significant nature of an eventual international intervention and the final fall of Colonel Muammar al-Qaddafi. By any estimation, the intervention and uprising was a success, but not without consequences that would threaten the reelection of President Obama. Obama and the United States became major players in a multilateral attempt to preclude a humanitarian disaster, but also to help end one of the most heinous regimes in North Africa.54
As the political situation in Libya deteriorated with government forces strengthening their positions throughout the country, Muammar al-Qaddafi vowed merciless revenge against any anti-government protestors especially in Benghazi. A humanitarian disaster of enormous proportions seemed imminent moving numerous Western governments to support the creation of a no-fly zone in parts of Libya to negate the efforts of Qaddafi’s air force against the opposition, and to press the United Nations’ Security Council to consider action. The result was United Nations Security Council Resolution 1973 which warned Qaddafi of dire consequences if he did not back down. The resolution demanded an immediate cease fire emphasizing the necessity to put an end to all attacks that threatened civilians which could be construed as “crimes against humanity, it imposed a ban on all flights in the country’s airspace, a no-fly zone and tightened general sanctions against Qaddafi and his supporters. The vote (March 17, 2011) carried with 10 states favoring the resolution and no negative votes (five countries abstained: Brazil, China, Germany, India, and the Russian Federation). The resolution authorized all Member States to take action nationally or through regional organizations to take necessary measures to protect civilians under threat of attack in Libya including Benghazi, but excluded a foreign occupation force of any kind. Qaddafi immediately called for a cease-fire and subsequently renewed his offensive against rebels in Benghazi which in turn invoked the beginning of an air campaign by the United States, the United Kingdom, France, Italy, the moral support of the Arab League, and finally the general commitment of NATO. The American reference to the action is OperationOdyssey Dawn, the United Kingdom has called it Operation Ellamy, France Operation Harmmattan, Canada Operation Mobile, and the United Nations Operation Unified Protector.
There is little doubt that the resolution and combined air campaign prevented what would have certainly been a humanitarian catastrophe. But even during the early implementation of the campaign questions emerged as to whether it would be enough to force Qaddafi to step down as national leader or whether that was an intended goal. Moreover, questions were asked as to the future of a Libya without Qaddafi, the nature of the rebels who might inherit the country. Was it a battle between an autocratic leader and democratic forces or simply a power-play amongst tribal forces.55
Domestic voices in the United States, many with a clear partisan agenda, questioned President Obama’s decision to involve the United States in yet another conflict in the Islamic world especially given his campaign rhetoric of 2008 regarding the question of war. Obama attempted to assuage critics by stressing limited involvement and intentions as part of a clear international coalition in which the United States would lead only initially. President Obama made his case for the intervention in a nationally televised speech at the National Defense College in Washington, D.C. on March 28 in which he emphasized four major points: the primary motivation for the intervention was to prevent an humanitarian disaster, that the intervention was part of an international coalition, that the intervention was limited in scope, and that it was not intended to cause regime change. In the first case Obama stressed that the action was “…to stop the killing” and prevent “…a massacre that would have reverberated across the region and stained the conscience of the world.” In the second and third cases he reiterated time and again the nature of the operation as limited a humanitarian effort by an international coalition which would assume command in the form of NATO on March 30, and limited to support of a no-fly zone, some air to ground strikes, reconnaissance and intelligence.56 In the final case he rejected the idea that the intervention aimed at overthrowing Qaddafi, though he suggested that this might be a collateral outcome, “It may not happen overnight, as a badly weakened Qaddafi tries desperately to hang on to power…but it should be clear to those around Qaddafi and to every Libyan that history is not on Qaddafi’s side.” Inevitably, another question emerged, whether Obama acted in a manner consistent with the Constitution. By attempting to act in a limited fashion, Obama had skirted the imperial temptation, by the slightest of degrees in several cases but was left open to other questions. Obama offered American intelligence to allies in the UN operation, and launched some 110 Tomahwk cruise missiles. NATO finally assumed the role of mission leader by the end of March 2011, with the caveat that American forces would still play a prominent role in the operation. The phrased that was used to characterize a “limited” involvement by the United States: to lead from behind, hardly gave due credit to the president in allied support, supporting the initial UN resolution and implementing it. But the larger question remained as to the nature of the mission itself; was it purely humanitarian, to prevent a humanitarian disaster, or political, to actually remove Qaddafi from power? In the end this determination will have much to do with whether Obama can avoid imperial temptation by way of a broader military intervention. Of course in the end the intervention proved to be inarguably a factor in the fall of the Qaddafi regime which came to a final end with his death outside of the town of Sirte at the hands of Libyan rebels on October 20, 2011.
Another facet of the imperial temptation concerns presidential tendencies to act first and consult, meaning here the obtaining of Congressional authorization, Congress later, this is especially critical when it involves military intervention like the recent case with Libya. To date President Obama has not sought congressional authorization for the military action in Libya via a congressional resolution or act, or a formal declaration of war, nor has he overtly enacted the War Powers Act (Resolution). He did meet with a bipartisan collection of eighteen members of Congress from both houses to announce his intention to support United Nations Resolution 1973 in what he described as a limited commitment, but this hardly took the form of a request for authorization.
While the constitutional waters on this subject have been badly muddied by a host of presidents (and in some cases the complacency or even complicity of Congress) the facts are fairly simple, and the Constitution and the intent of the framers is abundantly clear. Congress was to have the war power, the authority to declare war (Article I, Section 8). And while the president was granted powers as commander in chief, again the Constitution was clear that this would accrue only after Congress had called the armed forces into service (Article II, Section 2). The word declare was inserted to replace the word make in the Committee of Detail at the Constitutional Convention in 1787 to allow the president authority to react to an attack on the United States, but the bottom line was that the power to initiate hostilities was too important and potentially dangerous to be given to one person. According to the Constitution, then, Obama should have not only consulted with Congress but waited for its authorization to act in accordance with the United Nations’ resolution.57 Neither did he invoke the War Powers Act (Resolution) by which he could have acted for sixty days following a simple declaration of an emergency and a message to Congress that such an emergency existed and he was imposing that act. At the end of sixty days an additional thirty days could be acquired by again a simple message to Congress. At the end of this time, however, Congress would then be required to act by resolution or declaration of war.58 Nor should this fall under any interpretation of presidential prerogative that would suggest a form of extraordinary emergency power beyond the limitations of the Constitution akin to John Locke’s notion of absolute or royal prerogative.59 And it certainly would not be justified by appeal to the actions of earlier presidents according to presidential precedent.60
In its early stages the Libyan intervention is somewhat reminiscent of President Clinton’s involvement with Yugoslavia (today the Serb Republic) concerning ethnic cleansing in the province of Kosovo in 1999 and usually referred to as either the Kosovo War or the Kosovo Conflict (Clinton, no doubt, preferred the latter reference). Both dealt with humanitarian issues, both were limited to air campaigns (for the most part), and both came with no serious Congressional authorization. Congress was forgiving of Clinton’s action largely because of public opinion, the fact that there were no allied casualties but ultimately because the policy worked, with the added bonus that in the end President Slobodan Milosevic was forced from power (2000) and eventually handed over to The Hague to be tried for war crimes. Clinton had failed to gain support from the United Nations and appealed to NATO and the Geneva Convention on Genocide (1948) instead. Obama could at least claim partnership in a United Nations operation, as well as support from NATO, and no doubt if Obama’s policy assists in the eventual demise of Qaddafi Congress will again be forgiving.61
There is an anecdote, no doubt of apocryphal origins, involving President Theodore Roosevelt and his Secretary of State, John Hay, as the president considered sending the Mediterranean and South Atlantic naval squadrons to Tangier, Morocco in 1904. When Hay cautioned Roosevelt that such an act might be illegal the president replied “Why spoil the beauty of the thing with legality.”62 Whether factual or not, the sentiment has been a common one with far too many presidents.
At least in this sense, the question of constitutionality, President Obama did indeed succumb to an imperial temptation. His intentions were at the very least benign and quite possibly noble, and the outcome may yet prove beneficial, but that does not excuse circumvention of constitutional law, and given this president’s extensive legal background if not his campaign rhetoric in 2007-2008, he should have known better.63 In this case, the beauty of the thing would have been far better appreciated with strict legality. But the world was rid of an abdominal figure, with limited American cost, some embellishment of the United States abroad, and limited damage to constitutional niceties. And a new government came to power that could actually be described as constitutional, if not democratic. But also a government that would take time to establish stability across a country that had gone through a major civil conflict where groups armed with weapons from the Qaddafi arsenal would still need to be reined in; and clearly some of these groups might prove dangerous.