by Travis Normand

I found this article on NYTimes.com about how the Obama administration is looking to codify the U.S. drone policy. The article is quite fascinating and addresses a few of the larger complaints and challenges concerning drone usage.

Click HERE to read the entire article.

While reading the article, I had several thoughts which I wanted to address here.

My first thought came after reading the following quote:

“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 terms of some of the decisions that we’re making,” Mr. Obama told Jon Stewart in an appearance on “The Daily Show” on Oct. 18.

In the quote above, President Obama states that he needs “Congressional help” in order to put a legal architecture in place for the drone policy. My first thought was that as Commander in Chief, the President has historically been very careful to keep congress out of the decisions of who was designated an enemy combatant.  It will be interesting to see how much congressional help he will accept and what this will do to any current precedent.

I understand that Congress is needed in order to codify something such as the U.S. drone policy, however, couldn’t the President achieve the same results by presenting the policy in the form of a treaty?  Wouldn’t this accomplish the same objective without having to blur the line between the role of Congress in war and the President’s power as Commander in Chief?

The second quote that prompted this post was:

“Unless they were about to get on a flight to New York to conduct an attack, they were not an imminent threat to the United States,” said Micah Zenko, a fellow at the Council on Foreign Relations who is a critic of the strikes. “We don’t say that we’re the counterinsurgency air force of Pakistan, Yemen and Somalia, but we are.”

I am not sure if Micah Zenko is correct in his assessment on what constitutes an imminent threat to the United States.  If I could ask him anything, I would ask him to define “about to get on a flight to New York to conduct an attack.”  Do they have to be standing at the airport, boarding a plane?  What if they plan to board the plane next week?  What about next month?  What if the are boarding the plane today but don’t plan on carrying out the attacks until next year?

Finally, while the entire article is fascinating and raises many questions, the last quote from the article that I wanted to mention is:

Originally that term was used to suggest the specific “signature” of a known high-level terrorist, such as his vehicle parked at a meeting place. But the word evolved to mean the “signature” of militants in general — for instance, young men toting arms in an area controlled by extremist groups. Such strikes have prompted the greatest conflict inside the Obama administration, with some officials questioning whether killing unidentified fighters is legally justified or worth the local backlash.

Due to the fact that the U.S. is currently engaged in an armed conflict with these militants, they are target-able at any time.  Further, these militants failure to follow the rules of distinction as laid out in the Geneva Conventions forces the U.S. to often guess as to their identity.  Such guessing could be easily eliminated if these militant groups would wear the proper uniform or distinguishing marks of a lawful armed group.  Instead, they chose to dress as civilians and make it nearly impossible for the U.S. to determine who is an actual civilian and who is an armed militant.  For this reason, seeing a “young men toting arms in an area controlled by extremist groups” is one of the few ways that the U.S. is able to distinguish combatant from civilian (and will be legally and justifiably used as such).

The alternative would be to not allow U.S. forces to fire upon anyone until they have affirmatively confirmed, through some other means, that they are in fact a combatant.  An approach such as this is entirely inconsistent with the LOAC.