In a little over 600 days from now, an important job will open up in the national security community. From Hillary Clinton and Jeb Bush to Bernie Sanders and Ted Cruz, the presidential contenders are vying for the chance not just to be commander in chief, but also “decider” of when and where U.S. military and quasi-military forces go to war via drone.
When Barack Obama ran for president in 2008, the technology of unmanned systems was considered exotic and its use abnormal. There had been a limited number of strikes under the Bush administration, but the topic was little mentioned in his campaign against Sen. John McCain, R-Ariz., and was certainly not a core issue of American foreign policy. Since then, Obama has presided over at least 475 decisions to carry out lethal force in nations beyond the ones where U.S. military forces are deployed on the ground, according to New America’s research.
This change in the use of force overseas is part of a larger story that might surprise the Founding Fathers almost as much as a MQ-9 Reaper would. The Constitution lays out the basic framework that Congress declares war and holds the purse strings, while the president is commander in chief of the forces in war. By minimizing U.S. casualties and augmenting more conventional air campaigns, however, drones reduce the political costs of engagement, making it easier to contemplate using force abroad. Perhaps even more significantly, they enable the president to rely on legal arguments that Congress need not necessarily get involved in its most important duty: when and where we conduct warfare. Throughout this change, lawmakers have declined to weigh in on these decisions. Indeed, Congress has never formally voted on the so-called “drone war” campaign and has only provided a minimum of oversight, much of it in the form of Senate Intelligence Committee staffers watching recorded video of the acts during visits to CIA headquarters.
It is important to note that this shift in the constitutional balance of power between Congress and the president on decisions of war is playing out not only in the not-so-covert operations against terror targets, but also as part of overt military operations. To understand, we have to go back to 1999, when President Bill Clinton sought to halt the ethnic cleansing campaign of the Yugoslavian dictator Slobodan Milosovic in Kosovo but at a low risk. The strategy had a double goal: stopping the killing, but without spilling U.S. blood. It proved a success: in 78 days of aerial bombing, there were no U.S. combat casualties.
This dual strategy of waging war from a safe distance, but viewing it as something other than war, had consequences for the new model of the balance of power between Congress and the President. At the time, Clinton administration lawyers did not explain the constitutional basis of the president’s authority to conduct the Kosovo campaign without Congress’ authorization. But a decade and a half later, when the Justice Department’s Office of Legal Counsel sought to justify Obama’s use of force in Libya in 2011, it suggested that Clinton had never needed to get Congress’s blessing in part because the risk of casualties was so minimal.
By the time of the Libya campaign, the new technology of unmanned systems had developed to such a point that it was even easier to use force while limiting risk. Drones not only helped increase precision and reduce civilian casualties in the air war, but also were used to drop the bombs themselves. Indeed, unmanned systems launched 145 of the strikes on Libya, almost half of the overall U.S. total, while also doing most of the spotting that enabled the manned strikes.
Administration lawyers argued that the reduced risk of casualties made possible by drones justified an exemption from Congress’s exclusive authority to declare war. An OLC memo reasoned that a particular use of force is a war “for constitutional purposes” only if there are “prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.” On top of this, administration lawyers further argued the Libya campaign didn’t fall within the War Powers Resolution, which sets a 60-day limit on “hostilities” without congressional approval, as U.S. manned planes had moved into a supporting role (but, notably not so the unmanned forces, which continued to carry out strikes to the very day Muammar Qaddafi was killed).
In other words: because U.S. blood would not be at risk, it wasn’t warfare. The same kind of thinking has underscored drone strike campaigns in states that range from Pakistan to Yemen to Somalia to the current air war campaign against the Islamic State, or ISIS, in Iraq and Syria. While former can be argued to be covert, the anti-ISIS campaign is an official DoD operation, now four times past the War Powers limit of 60 days. Administration officials have contended that Congress’s 2001 authorization to use military force against al-Qaeda also authorizes the fight against ISIS, despite the tenuous link between the two terrorist organizations that are literally fighting each other on the ground in Syria, while also arguing that the operation has no sustained risk to U.S. forces. So far, members of Congress have been happy to go along with this legal pretzel in order to avoid that vote.
Notice that we didn’t say whether or not we supported these varied operations made possible by new technologies. What concerns us instead is the relative lack of public debate about a fundamental shift in the long-term balance of power between the presidency and legislature, fueled by the mix of technology, law and politics, and whether that shift is being properly woven into our system, including our election campaigns.
Here are some questions that might be asked either by media or by interested voters to help clarify some of the crucial issues. These are meant to help spur a healthy debate about the next president’s role in America’s wars, as well as to better prepare the candidates and their campaign advisors for the hard decisions if they actually win.
- Do you believe the War Powers Resolution applies to the president’s decisions to use force abroad, and under what circumstances? Specifically, would you be required to notify Congress and receive approval within 60 days, even when no U.S. personnel are at risk due to expanded use of new technologies or other factors?
- Both countless leaks and external reporting have established that the U.S. has conducted almost 500 drone strikes against suspected terrorist targets in various locales ranging from Pakistan to Somalia. Will your administration acknowledge this campaign in public?
- Should drone strike campaigns be conducted by the Defense Department or CIA?
- In any campaign beyond active war zones, will you personally approve each drone strike or delegate the kill decision based on certain pre-approved criteria? Will your administration conduct “signature strikes,” based on the target meeting a specific profile, or only strikes where the identity of the target is known? What is the system of accountability your administration will have in place for any strikes that go awry?
- Will you seek a new authorization from Congress to use military force against ISIL? If not, why not?
If a candidate can’t answer these questions, then they aren’t yet ready to be either commander or decider in chief. In the era of drone wars, we must recognize that the president’s role in war has changed, and it’s crucial that we have a conversation about this during the upcoming election.