4. Congress should consider repealing the 2001 Authorization for Use of Military Force. The Obama administration's domestic legal justification for most drone strikes relies on the AUMF, which it interprets to authorize the use of force not only against those individuals and organizations with some real connection to the 9/11 attacks, but also against all "associates" of al Qaeda. This infinitely flexible interpretation of the AUMF has lowered the threshold for using force. Repealing the AUMF would not deprive the president of the ability to use force if necessary to prevent or respond to a serious armed attack: The president would retain his existing discretionary power, as chief executive and commander in chief, to protect the nation in emergencies. Repealing the 2011 AUMF would, however, likely reduce the frequency with which the president resorts to targeted killings.
5. The Constitution gives Congress the power to "define and punish offenses against the law of nations." Without in any way tying the president's hands, Congress can pass a resolution clarifying that the international law of self-defense requires a rigorous imminence, necessity, and proportionality analysis, and that the use of cross-border military force should be reserved for situations in which there is concrete evidence of grave threats that cannot be addressed through other means.
6. Congress and/or the executive branch should create a non-partisan blue-ribbon commission made up of senior experts on international law, national security, human rights, foreign policy, and counterterrorism. Commission members should have or receive the necessary clearances to review intelligence reports and conduct a thorough policy review of past and current targeted killing policy, evaluating the risk of setting international precedents, the impact of U.S. targeted killing policy on allies, and the impact on broader U.S. counterterrorism goals. In the absence of a judicial review mechanism, the commission might also be tasked with reviewing particular strikes to determine whether any errors or abuses have taken place. The commission should produce a public, unclassified report, as well as a classified report made available to executive branch and congressional officials. The report should contain detailed recommendations, including, if applicable, recommendations for changes in law and policy and recommendations for further action of any sort, including, potentially, compensation for civilians harmed by U.S. drone strikes. The unclassified report should contain as few redactions as possible.
7. The president should publicly acknowledge all targeted killings outside traditional battlefields within a reasonable time period, identifying those targeted, laying out the legal factual basis for the decision to target, and identifying, to the best of available knowledge, death, property damage, and injury resulting from the strike(s).
8. The president should release unclassified versions of all legal memoranda relating to targeted killing policy. In particular, U.S. citizens have a right to understand the government's views on the legality of targeting U.S. citizens.
9. The president should also provide the public with information about the process through which targeting decisions outside traditional battlefields are made, the chain of command for such decisions, and internal procedures designed to prevent civilian casualties.
10. The administration should convene, through appropriate formal and Track II diplomatic channels, an international dialogue on norms governing the use of drone technologies and targeted killings. The goal should be to develop consensus on the legal principles applicable to targeted killing outside a state's territory, including those relating to sovereignty, proportionality, and distinction, and on appropriate procedural safeguards to prevent and redress error and abuse.
SUBJECTS:
