Q. How does the use of drones affect democratic checks and balances?
In the United States, the responsibility for authorizing military force resides with Congress, yet the relationship between the use of drones and Congressional checks in wartime is uneasy at best. This is in large part due to the rapid development of drone technology that shifts the burdens of war away from the populace. Immanuel Kant famously observed that what makes democracies different from non-democracies is that the polities of the former directly bear the burdens of war. Since they have to fight these wars and pay the costs, their consent for the war is heavily contingent on how they see the virtues of fighting the war, and then put pressure on the government as soon as they no longer see the war as worth the ongoing sacrifice.102
Contemporary international relations scholars have followed up in this vein and suggested that since a democratic populace will "ultimately pay the price of war in higher taxes and bloodshed," they will "sue for peace" when the costs mount, creating shorter wars at lower cost.103 The accountability mechanism underlying this logic hinges on the public bearing some burden of war. With drone strikes, however, the public is removed from the consequences. Indeed, insofar as all politics is local and one's family and friends are not coming home in body bags, then the incentive to pressure leaders to end wars diminishes.104
It is not surprising that the domestic public in the United States, the country which operates the most drones, expresses greater levels of support for drone strikes after ten years than they do for the Afghanistan war after ten years.105 Indeed, the American public has generally been supportive of drone strikes, with support rarely falling below 50% for polls taken between 2011 and 2014 (while the first strike was in 2002, polls did not begin until 2011) and typical support levels reaching around 65%.
By contrast, Americans are overwhelmingly concerned about drone use domestically, especially when it comes to their own privacy. Sixty-four percent of Americans have indicated that they would be very or somewhat concerned if law enforcement used drones for surveillance and 67% are opposed to drones being used for routine policing.106 Americans also express skepticism about the use of drones for commercial purposes by a 2-1 margin in opposition, with only 21% in favor—the remaining 35% neither supportive nor opposed.
Most significantly, Congress has not specifically authorized the use of drone strikes outside active battlefields. In 2001 it passed the Authorization for the Use of Military Force (AUMF), which authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." While both Presidents Bush and Obama have implicitly used the AUMF to legitimize drone strikes in places such as Pakistan, Yemen, and Somalia, a legal debate has evolved dealing with whether the 2001 AUMF intended to be open-ended in both time and space. Does Al-Shabab in Somalia, for example, qualify under the AUMF? The group was not present at the time of 9/11 but ostensibly had been placed within the Al-Qaeda network since its inception. Ryan Goodman pointed out as much after the September 2014 strike against the leader of Al-Shabab, Ahmed Abdi Godane, by questioning whether the group is an "associated force" of Al-Qaeda. The answer to this question provides or denies the United States the legal authority to target members of Al-Shabab. Despite the unclear ground upon which the United States is making attacks against Al-Shabab, there has been little Congressional opposition to strikes against them on these grounds.107 While President Obama himself urged the repeal of the AUMF, stating that he "look[s] forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF's mandate" he has not identified a replacement that would authorize the type of strikes that have been allegedly carried out with this authorization.
In other cases, such as the Libya intervention, the Obama administration claimed that it did not have to seek authorization for military force because it was only using drones, thereby exempting it from the 1973 War Powers Resolution, which would require Congressional authorization in the event that troops were deployed for more than 60 days. It stated that "U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops" and do not obligate the United States to seek specific authorization.108
In the 2014 strikes against ISIS in Iraq and Syria, the administration appeared to act on the basis of Article II of the US Constitution, which grants commander-i n-chief privileges to the president. Former legal advisor to the president Harold Koh suggested that the government has relied on the "splinter theory" that allows it to use force based on the "associated forces" part of the AUMF. The basic argument suggests that the AUMF authorized the President to engage in an armed counterterrorism campaign, and that since the 9/11 attacks, the original Al-Qaeda group has splintered into other groups, some of which may have had different objectives, but bore enough resemblance to the parent group to be culpable and subject to being targeted under the original AUMF.109
Consistent with this logic, the executive branch has continued to engage in strikes against organizations that are new since 9/11, such as ISIS, AQAP, and Al-Qaeda in the Islamic Maghreb (AQIM), and that remain unchecked by the legislative branch.
On the contrary, Congress has been loath to restrict the president's autonomy when it comes to using armed drones for counterterrorism. Some individuals, such as Congressman Adam Schiff (D-CA), have proposed a sunset clause for the AUMF but these measures have gained little traction. Congress has little incentive to introduce meaningful restrictions. While it is unlikely to get credit for foreign policy successes, it would be blamed if it introduced restrictions and a terrorist attack took place. Its incentives then are to grant the executive branch considerable latitude when it comes to counterterrorism policy, especially since the status quo comes at no real cost to the constituents the members of Congress represent.