Germans Love David Hasselhoff . . . and They Kindly Tolerate Pejman Yousefzadeh

President Obama gave a speech to the National Defense University today that outlined his counterterrorism policy in general, and his administration's policy on drones in particular. Deutsche Welle interviewed yours truly on the new policy:

Pejman Yousefzadeh, a Chicago-based lawyer who specializes in public policy, cautiously welcomed Obama's initiative towards greater transparency, but questioned the efficacy of a new policy. "I don't know if a blanket guideline is going to be as useful as bilateral diplomacy with the countries in question," he told DW. "Some countries may privately welcome US intervention against terrorists, but have to condemn the US in public."

Yousefzadeh is also concerned about accountability. "You can't have a US president's war policy that is completely free of congressional oversight," he said.

To that end, Yousefzadeh thinks Obama would do better to establish a "Federal Intelligence Commission," an independent regulatory agency that would review any targets the White House has identified. Though as commander in chief, the president would still be able to overrule such a commission's findings, he would have to tell Congress he is doing so, making the program much more transparent and subject to a legal process.

My thoughts on the establishment and uses of a Federal Intelligence Commission are spelled out in my article on drone policy for the Atlantic Council, which was originally linked to here.

Guest-Blogging on Lawfare

As a follow-up to this post, Benjamin Wittes, the editor-in-chief of Lawfare, invited me to do a guest-post on how the game of Go is teaching us to counter cyber security threats. My thanks to Ben for the opportunity, which I enjoyed. And I am more than glad to reiterate my praise for Lawfare as one of the most informative blogs around.

Restoring Checks and Balances to the Drone Warfare Program

I am very pleased to report that I have an article on the website of the Atlantic Council regarding the subject. A snippet:

The Department of Justice has recently released a white paper detailing what it believes to be the scope of the president’s authority to kill Americans suspected of being members of al Qaeda—killings that are usually conducted via drones. The white paper argues that the killing of such suspects does not violate due process or the Fourth Amendment, claims that a lethal operation against such suspects does not violate the tenets of Executive Order 12333 (which among other things, prohibits assassinations), and states that the power to kill such suspects can take place “away from the zone of active hostilities.” Additionally, the president can authorize legal force against an American citizen located in a foreign country that either gives its consent to a legal operation, or “after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.” A suspected American terrorist can be killed outside of the United States if the suspect “poses an imminent threat of violent attack against the United States,” but this “does not require the United States to have clear evidence that a specific attack on U.S. persons or interests will take place in the near future.”

The white paper has prompted spirited reaction. Indiana University law professor Gerald Magliocca argues that it is too easy to authorize a lethal drone operation because it is not clear who qualifies as “an informed high-level official” for the purposes of determining that “a targeted individual poses an imminent threat of violent attack against the United States,” and because the language of the white paper might suggest that only one such “high-level official” is needed to issue such a determination. George Washington University law professor Jeffrey Rosen claims that the administration’s arguments do not pass constitutional muster. Harvard law professor Jack Goldsmith states that while “[t]here is little of substance that is new in the White Paper,” the white paper “does reveal problems in the administration’s political and legal strategy for conducting drone strikes, especially against American citizens,” including “excessive secrecy.” Goldsmith also argues that we need “a new framework statute” that would “define the scope of the new war, the authorities and limitations on presidential power, and forms of review of the president’s actions.” Goldsmith’s call for a new framework is echoed by former secretary of defense Robert Gates, who has argued for the creation of a “third group” that would inform Congress and intelligence communities about drone strikes, thus creating more oversight for the process.

Click for more regarding what shape I think such oversight should take.