Call it “Jon Stewart diplomacy,” but President Obama signaled his intent to develop new rules for drone attacks in an interview with the popular Comedy Central figure on October 18. Obama’s team was working in secret to develop the new rules in the event that Mitt Romney was elected, according to the New York Times’ Scott Shane, in a story published two weeks after the president’s interview with Stewart.
What the proposed rules are, and whether the work continues, will depend on Congressional and media interest in the days ahead.
According to Shane, the administration is aware that many countries question the international legal justification for the drone strikes. The US itself routinely criticized drone assassinations by Israel against alleged Palestinian terrorists. The United Nations is convening a Geneva-based investigation of the US drone strikes next year.
The opportunity for the administration to get ahead of the curve is at hand, but there is no sign – yet – of Congressional interest. That may soon change because of journalistic investigations, internal debates in the administration, lawsuits and human rights complaints, and persistent pressure from small bands of protestors. A citizen delegation recently returned from Pakistan is urging Congressional action as a follow-up to an ad hoc hearing by outgoing Rep. Dennis Kucinich and Rep. John Conyers, senior Democrat on the House Judiciary Committee.
The administration appears to be in an untenable position, with the UN investigation beginning and its top counterterrorism official John Brennan still clinging to his claim that there has been zero civilian collateral damage in Pakistan from the drone strikes. A documentary being produced by Robert Greenwald, recently back from Pakistan, is likely to raise deep questions about the administration’s veracity.
Unless sharply revisited, the drone policy – as well as cyber-warfare operations and the CIA’s secret mercenary operations – renders the 1973 War Powers Act obsolete. Without a rewritten War Powers Act, which was originally imposed on President Nixon in 1973, Congress is faced with the loss of its constitutional power in decisions to make war and hold the military accountable. President Obama is heading toward the same Imperial Presidency that grew under Lyndon Johnson and Richard Nixon until it became discredited and partly dismantled by the 1973 Watergate crisis.
To rebalance the disparity with the executive branch, Congress may have to revisit the blanket authorization for the War on Terrorism passed more than a decade ago, or specify that the White House may act unilaterally only in response to the threat of an immanent attack on the US. The War Powers Act will have to be amended to cover drones, cyber-war and CIA-directed mercenaries in the statutory definition of “war,” in circumstances defined as an “operational plot against the United States,” terms used by President Obama in a September CNN interview. Individuals targeted on a CIA or Pentagon “kill list” will have to be identified precisely as an immanent threat which cannot be otherwise prevented, not simply listed as generic “militants” engaged in confrontations with each other or their own regimes. The War Powers Act would appear to cover only the use of ground troops in “sustained fighting” where there is an “active exchange of fire with hostile forces.” A revised measure would require the president to reveal and terminate a wider spectrum of military operations using lethal force within 60-90 days unless explicitly authorized by Congress. Such standards and restrictions currently do not exist.
According to Garry Wills’ history, Bomb Power, the 1973 law actually weakened the co-equal power of Congress in war making, but it was a compromise, which diminished secrecy and permitted the role of press and public in the Congressional hearings process.