The fall of 2011 marks a watershed for United States combat forces in Afghanistan: ten consecutive years of engagement. And while President Obama recently announced plans to draw down the size of the combat force over the next twelve months, the mid-term plan still has U.S. military forces in Afghanistan until at least 2014. By any measure, the current war in Afghanistan has been the longest in U.S. history.
The prosecution of this war has proven to be enormously complex, and in spite of the United States’ long-term commitment, the outcome of the war remains very much in doubt. The complexity stems from a number of causes, not the least of which is that, for the past ten years, the United States and its allies have been fighting a war of counterinsurgency. The critical feature of a counterinsurgency is that military forces must walk a fine line between taking aggressive military action against insurgents and taking care not to alienate the civilian population. The primary goal of a counterinsurgency is to gain the trust and confidence of a vacillating civilian population and prove that your forces are the most capable of providing peace and security.
Because of this delicate balance, special tactics are often required. Methods used in conventional conflicts are often counterproductive in a counterinsurgency war. In Afghanistan, the United States has employed a number of heretofore-unused tactics. Perhaps the most intriguing and controversial has been the use of unmanned predator-drone attacks. The use of these predator drones represents a confluence of advanced technology and the need to engage an enemy in locations where conventional forces often cannot be deployed.
There have been both legal and policy criticisms of drone attacks. Much of the legal criticism has focused on alleged violations of international law and the law of war. These criticisms reflect a desire to place some controls on a State’s use of force. While this international-law debate is important, practically speaking, criticism alone would be unlikely to dissuade the United States from using drone attacks. Any real check must come domestically either from the judiciary or from Congress. This Essay contends that Congress, not the courts, is the only viable means of placing controls on the President’s use of drone attacks in the future.