Thursday, May 23, 2013

President Obama on Drones, Guantanamo

President Obama spoke out today on his administration's use of drone attacks and argued (again) for closing the detention facility at Guantanamo Bay in a speech that looked to wind down the war on terror.  Politico reports here.

President Obama's speech came the same day as the administration released a "fact sheet" on U.S. policy standards and procedures for drone strikes and other hostile actions against terrorist suspects outside the United States and areas of active hostilities.  According to the document, there's a preference for capture (and other reasonable alternatives) over killing, but still the document sets out standards for the use of lethal force:

First, there must be a legal basis for using lethal force, whether it is against a senior operational leader of a terrorist organization or the forces that organization is using or intends to use to conduct terrorist attacks.

Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons.  It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force.

Third, the following criteria must be met before lethal action may be taken:

1. Near certainty that the terrorist target is present;

2. Near certainty that non-combatants will not be injured or killed;

3. An assessment that capture is not feasible at the time of the operation;

4. An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and

5. An assessment that no other reasonable alternatives exist to effectively address the threat to the U.S. person.

Finally, whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally--and on the way in which the United States can use force.  The United States respects national sovereignty and international law.

The "fact sheet" makes some changes in emphasis and language, but seems to basically leave in place the substance of the three-part test outlined earlier this year in the White Paper.  The "fact sheet" emphasizes rule-of-law principles and broad government decisionmaking and oversight over hostilities, but it does not specifically address or define "imminence" or the process by which the administration will designate a person a target.  (Recall that the White Paper looked specifically at the question when lethal force could be used against a U.S. citizen who is a senior leader of al-Qa'ida or an associated force; the "fact sheet" sweeps in a broader class of potential targets.  Recall, too, that the White Paper defined imminence rather broadly, and it counterbalanced a target's interest in life with the U.S. interest in forestalling attacks on other Americans, under Mathews v. Eldridge.)  The upshot: only time will tell whether the Fact Sheet represents a real change in the way the administration actually executes drone attacks.  

SDS

http://lawprofessors.typepad.com/conlaw/2013/05/president-obama-on-drones-guantanamo.html

Executive Authority, Fundamental Rights, News, Procedural Due Process, Separation of Powers, War Powers | Permalink

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