Yemen drone strikes may revive war-powers battle between administration, Congress

The escalation of drone strikes in Yemen, presumably in response to the ongoing Al Qaeda threat, and other technology-based military options could fuel calls to re-write laws that govern such actions to give Congress greater oversight over the administration's remote-controlled warfare.

"Some of these campaigns by the administration clearly constitute an act of war," said Jonathan Turley, an attorney and professor at George Washington University Law School.

To date, the administration has claimed broad latitude in its authority to launch limited military operations -- including drone strikes -- without congressional authorization. There's no indication this time will be any different.

A total of nine suspected drone strikes reportedly have been recorded in Yemen since late July, taking out dozens of alleged Al Qaeda operatives and other militants. The most recent strike was on Saturday. The Washington Post reported last week that the strikes were authorized by the Obama administration in connection with the ongoing terror threat.

If challenged on the strikes, the president is likely to argue that the operation is contained and does not require congressional authorization. He has in the past.

This debate flared during the 2011 operation in Libya, when the administration launched a series of air and drone strikes in support of the campaign against Muammar Qaddafi.

The Vietnam War-era War Powers Resolution stipulates that the president must receive congressional approval within 60 days of any "hostilities" in order to proceed. But the Obama administration argued that the 1973 resolution is outdated, having been written before drone strikes were a method of modern warfare.

"If we are concerned about unmanned uses of weapons that can deliver huge volumes of violence, a statute which only deals with the introduction of U.S. armed forces does not address that situation," State Department legal adviser Harold Koh testified in June 2011 before the Senate Foreign Relations Committee.

Koh suggested that Congress re-write the War Powers Resolution if it wants to exercise any oversight over the drone program.

"At the time the law was passed ... they were thinking about Vietnam. They weren't thinking about drones or cyber," Koh said.

Turley, who represented members of Congress who tried to challenge the administration over its campaign in Libya, said re-writing the War Powers Resolution, though, would do little to address the issue -- he described the resolution as "little more than a speed bump for presidents on the way to war."

Rather, Turley said Congress should pass a constitutional amendment or law to formally grant itself standing in the courts to challenge Executive Branch decisions on the use of force. He argued that, with drone campaigns, the administration should be seeking a congressional declaration of war to proceed. Having standing in the courts would allow Congress to challenge those drone campaigns it opposes.

"A drone is just another version of artillery, for the purposes of constitutional law," he said.

Another option, pushed by some in Congress, is for lawmakers to approve the creation of a special court to review drone strikes.

Sen. Angus King, I-Maine, has pushed for the creation of a court -- modeled after the court that reviews secret surveillance requests -- to review such missions. According to his vision, the drone court would be an avenue for U.S. officials to argue in secret before a judge why an American citizen should be targeted for death. He said earlier this year it would be like "going to a court for a warrant" and proving probable cause.

Sen. Dianne Feinstein, D-Calif., chairwoman of the Senate Intelligence Committee, has said she would review the proposal. CIA Director John Brennan also called the idea "worthy of discussion."

King did not comment for this article.

The lack of congressional oversight with drones repeatedly has stirred angst among lawmakers.

During the June 2011 hearing, Sen. Bob Corker, R-Tenn., pressed Koh on how the administration was able to unilaterally escalate the campaign in Libya.

"What y'all are doing by arguing this narrow case is saying that any president of the United States, Republican or Democrat, can order Predator strikes in any country and that is not hostilities. And of course, we know what Predators do. I think you know what they do, and lots of times, human beings are not alive after they finish their work," Corker said.

Thomas Sanderson, senior fellow with the Center for Strategic and International Studies Transnational Threats Project, said that the president does need "flexibility" to respond to these threats.

"He seems to be on fairly solid ground to be able to order the drones into action against foreign targets in foreign countries," he told

However, he said that if an operation in Yemen escalates, with missile strikes or some other response, Congress would probably demand more of an oversight role.

If there is an Al Qaeda strike, he said, "I would not be surprised to see a Delta Force or a SEAL team go in there to pursue these guys."