Drone

Lancet nodded. “In terms of constitutionality, I would say yes. Congress, on the other hand, would almost definitely disagree.”

“The vice president as well, I’m sure,” Jeffers added.

“You’re referring to the War Powers Resolution,” Myers said.

“Yes, and by extension, the Authorization to Use Military Force that was passed in 2001 in response to 9/11. Congress authorized the president to deploy U.S. military forces to kill or capture members of al-Qaeda and related organizations responsible for the attack. The drone attacks and targeted killings of terrorists since then have all fallen under the AUMF. Congress hasn’t given you such authorization yet for operations against the drug cartels.”

“Because I haven’t asked for it. Should I?”

“You could,” Jeffers said. “But then they wouldn’t give it to you, at least not without steep concessions. The hawks would want all of their spending increases restored, and the progressives would want their piece of the fiscal pie, too, so say good-bye to your budget freeze and the balanced budget amendment.”

“So I have to fight Congress before I can fight Castillo? No, thank you,” Myers said. “Besides, many legal scholars question the constitutionality of the WPR. No president from Nixon through Obama has ever agreed that the WPR has binding authority over the office. Isn’t that correct, Dr. Strasburg?”

“That is correct, Madame President,” Strasburg said with a smile. “Yourself included, apparently.”

Jeffers nodded. “No president has ever agreed that the WPR is legally binding, but for the most part, they’ve all adhered to the WPR out of political expediency because Congress is the place where the defense checks get written.”

“Which actually leads to another broad area of law to consider,” Lancet said. “It’s a question of scale. The constitutional debates surrounding the War Powers Resolution notwithstanding, the president has the unchallenged right to deploy limited force in specific situations. The point of War Powers was to keep us out of large-scale foreign wars without congressional approval, not to keep us out of all military engagements.”

“So, just to be clear, if I issue an executive order declaring Castillo and his organization an imminent terrorist threat, I have at least some legal ground to stand on?” Myers asked.

“In my opinion, yes, so long as the attack complies with the four fundamental law-of-war principles.”

“Which are?”

“Necessity, distinction, proportionality, and humanity—avoiding unnecessary civilian deaths. Feasibility of capture and undue risk to U.S. personnel should also be taken into consideration. That’s why targeted drone strikes have been so popular. They tend to meet all of those law-of-war principles.”

Myers and Early exchanged another glance. Still not the time to talk about Pearce.

“Would the ACLU agree with your analysis?” Jeffers asked.

Lancet barked out a laugh. “Hell, no! There are as many opponents to drone strikes as there are supporters, and they are on both sides of the aisle. But opinions change, don’t they? Harold Koh was one of the Bush administration’s harshest critics, particularly in regard to waterboarding, which he viewed as an act of torture and a violation of human rights. But when he became the legal advisor for President Obama’s State Department, he suddenly became an ardent proponent of targeted killings and drone strikes.”

“So splashing a little water on my face is bad, but blowing me up with a Hellfire missile is okay?” Early asked.

“Where you stand depends on where you sit, right?” Lancet said. “You know, there’s actually one interesting argument about drones. Because they are unmanned weapons systems, no actual U.S. personnel are sent into combat. Some folks think that means drones aren’t technically ‘armed forces’ and therefore War Powers doesn’t apply anyway.”

Donovan leaned forward on his elbows. “Aren’t we missing something here? We’re talking about an attack on Mexican citizens on Mexican soil. Isn’t that an act of war?”

Strasburg cleared his throat. “The Mexican government might take umbrage at the assault, but I doubt they’d consider it an act of war. If they did, they would have to respond in kind.” The old diplomat allowed himself a smile. “There isn’t much chance of that, is there? Consider the Pakistanis. SEAL Team Six sent troops into Pakistan without either their knowledge or permission and killed Bin Laden, primarily because we couldn’t trust the Pakistanis to not betray the operation or warn Bin Laden in advance. The Pakistani government was deeply offended by the Bin Laden raid and our relationship with them is still badly strained. But in the final analysis, what are they going to do about it?”

“I would think the Mexican government would be grateful to us for the elimination of the most powerful drug cartel inside their nation,” Myers said.

“You’d think,” Madrigal said.

“Faye, would you be kind enough to draft the executive order I’ve suggested?”