Eric Posner on President Obama and the Drone Strikes

President Ruthless
Eric Posner
Slate.com
May 23, 2013

In his speech today about the future of American counterterrorism operations, President Obama said that he will order drone strikes less frequently and redouble efforts to transfer some detainees out of Guantánamo. He suggested a more focused approach to terrorist threats in light of the diminished capacity of al-Qaida. Yet he also maintained the administration’s long-standing legal approach. The speech thus may well confirm the view among Obama’s civil libertarian critics that he is the most lawless executive since, um, George Bush. They are right to see the continuity from one president to the next, but they are wrong to believe that Obama has violated the law.

I have discussed the legal basis of the war on terror before. The 2001 Authorization for Use of Military Force, updated in the 2012 National Defense Authorization Act, gives the president war powers against al-Qaida. War powers include the power to kill, to capture, to detain, to interrogate, to engage in surveillance. These powers have been further confirmed and regulated by Congress in numerous other statutes, and approved by the courts.

Critics argue that the Obama administration violated the rights of the Islamic cleric Anwar al-Awlaki, an American citizen killed by drones in Yemen, by failing to capture him and give him a trial. But the Constitution does not require trials for enemy combatants, not even Americans. The Obama administration has actually gone beyond its predecessors by stating that it will not engage in targeted killings of Americans overseas unless they pose an imminent threat and cannot be captured. (Note, however, that imminent does not mean what the dictionary says.) The administration has also recognized the drone killings of three other Americans who were not targeted but wandered into the line of fire. No law prohibits such accidental deaths unless they were the result of extreme carelessness or indifference to the lives of civilians.

Faculty: 
Eric Posner