Review of the Year Part 1: Drones and the Law

Arguments relating to the legality of armed drones have raged since the very first Predator strike.  However, over the past year, the legal arguments have emerged out of the pages of academic journals and obscure conference rooms and entered the mainstream and indeed, the courtroom.  In the first of our reviews of the year we look back at what has happened in relation to legal arguments of the use of drones.

Drones and targeted killing

US Counter-Terrorism Chief John Brennan

Perhaps the fundamental legal issue relating to the growing use of unmanned drones is how they have enabled the United States to undertake targeted killings. Helpfully for our purposes, at the beginning of the year in an article for the Guardian, international law scholar Mary Ellen O’Connell  defined targeted killing and outlined its limits under international law:

“‘Targeted killing’ is the killing of certain individuals away from battle zones using military means, including missiles, bombs and commando raids….  States are permitted to use lethal force in certain limited situations. In situations of armed conflict, lawful combatants will not be prosecuted for killing that complies with international humanitarian law. Today, under the international legal definition of armed conflict, the United States is involved in such hostilities in one country only: Afghanistan.  Beyond Afghanistan, any use of lethal force by designated authorities of the United States must follow the normal human rights limits on peacetime resort to lethal force.  Authorities may engage in lethal force when necessary to save a human life immediately, if there is no alternative. In other cases, an attempt to arrest is required, followed by a fair trial within a reasonable period.”

While it has been an open secret for the past few years that the United States has engaged in targeted killing outside Afghanistan (notably in Pakistan), this was publicly acknowledged for the first time during a ‘Google Hangout’ (!) by President Obama in January 2012.  Amnesty International immediately challenged President Obama to justify the strikes:  “The US authorities must give a detailed explanation of how these strikes are lawful and what is being done to monitor civilian casualties and ensure proper accountability”, said Sam Zarifi Amnesty International’s Asia-Pacific director.

Over the following  few weeks three senior US officials made public interventions attempting to justify such targeted killing.  Firstly the Pentagon’s senior lawyer, Jeh Johnson made a speech at Yale arguing, as officials had done previously, that the Authorization for the Use of Military Force Act, passed one week after 9/11,  gave the necessary authority to carry out lethal actions against “valid military objectives.”  Johnson also argued, according to a report in the New York Times, that courts should have no role in reviewing executive branch decisions about whether someone has met such criteria.

Secondly in early March, U.S. Attorney General Eric Holder gave a speech at Northwestern University Law School along similar lines to Jeh Johnson’s, but focusing on the legitimacy of targeted killing of US citizens.  This followed the huge controversy at the target killing of Anwar al-alwaki, a joint US-Yemeni citizen in September 2011.  At the end of the speech Holder abruptly cancelled plans to answer journalists questions.   The speech was widely criticized as being, in the words of a New York Times editorial “deeply inadequate in important ways.”

Finally, President Obama’s chief counter terrorism adviser, John Brennan gave a speech at the end of April also justifying targeted killing. While not making any new arguments, Brennan stated the US administrations’ position clearly:

“As a matter of international law, the United States is in an armed conflict with al Qaeda, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense…  There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat”

Various response to the speeches challenged the Administrations position broadly on three grounds.  Firstly that the use of lethal force against individuals outside of an imminent threat was unlawful; secondly that the AUMF did not authorise the US to turn the whole world into a battle zone, and finally that there must be appropriate and publicly accountable due process  (see here and here for examples). As the American Civil Liberties Union stated after Brennan’s speech:

“The [targeted killing ] program itself is not just unlawful but dangerous… the administration is treating legal restrictions on the use of force as questions of preference. Moreover, it is dangerous to characterize the entire planet as a battlefield…  The administration insists that the program is closely supervised, but to propose that a secret deliberation that takes place entirely within the executive branch constitutes ‘due process’ is to strip the Fifth Amendment of its essential meaning.”

One month after Brennan’s speech, an important, major article in the New York Times, based on on-the-record interviews with President Obama’s advisors, outlined to some degree the process by which people are put on the US targeted ‘kill list’.  According to the article, each week: “more than 100 members of the government’s sprawling national security apparatus gather, by secure video teleconference, to pore over terrorist suspects’ biographies and recommend to the president who should be the next to die. ”  The meetings have apparently been dubbed ‘the ‘Terror Tuesday’ meetings.  According to the article, by his own insistence President Obama approves any name to be added to the list. He signs off on every strike in Yemen and Somalia and also on the more complex and risky strikes in Pakistan — about a third of the total.

The article also revealed for the first time the administration uses a  method that “in effect counts all military-age makes in a strike zone as combatants unless there is explicit intelligence posthumously proving them innocent.”  The authors of the article reported drily that this “may partly explain the official claims of extraordinarily low collateral deaths.”

As well as the targeted killing of known individuals, the US has undertaken in Pakistan what have  become known as  ‘signature strikes’, that is the targeted killing of individuals whose names are not know but their behaviour allegedly gives them the ‘signature’ or ‘hallmark’ of  militants/insurgents/terrorists.  According to the NYT article, two years ago Obama overruled military and intelligence commanders who wanted to carry out signature strikes in Yemen, however this changed in April 2012 when Obama gave permission for  target suspects in Yemen whose names are not known to be killed.

In June more than 25 members of Congress signed a letter to President Obama challenging the ‘signature strikes’ and calling for the legal justification to be made public.  However an even more high-profile denunciation was to come in the form of a ‘Op Ed’ by former US President Jimmy Carter.

Writing in the New York Times President Carter launched a withering attack on the Obama Administration arguing that  “the great escalation in drone attacks has turned aggrieved families toward terrorist organizations, aroused civilian populations against us and permitted repressive governments to cite such actions to justify their own despotic behaviour.” The strong  – and highly unusual – criticism received coverage right around the world.

Into the Courts

In July the ACLU and the Center for Constitutional Rights announced that it was filing a lawsuit, charging that senior CIA and military officials violated the Constitution and international law when they authorized and directed drone strikes that resulted in the deaths of three U.S. citizens, including a 16-year-old boy, in Yemen in 2011.  The lawsuit was welcomed by amongst many others the editors of the LA Times who wrote “Ideally this lawsuit [will] result in a thorough examination of the legality of targeted killings without the administration hiding behind the “state secrets” privilege, as it has done in the past.”  This US lawsuit is not the first, and probably won’t be the last to bring the issue of drones and targeted killing into a court room.

Noor Khan (left) holds a photo of his father killed in a US drone strike, alongside his lawyer, Shahzad Akbar
Noor Khan (left) holds a photo of his father killed in a US drone strike, alongside his lawyer, Shahzad Akbar

At least three other legal cases are tackling the issue of drones and targeted killing.  In Germany,  the federal prosecutor has initiated an investigation into the 2010 killing of a German national known only as Bunyamin E. At least five German nationals have been killed in US drone strikes.

In Pakistan, an Islamabad-based legal charity, The Foundation for Fundamental Legal Rights, has filed two constitutional petitions challenging the Government of Pakistan’s failure to protect its citizens from US drone attacks. Both relate to a March 17 2012 strike in North Waziristan which killed 50 people. The first petition is filed by Noor Khan over the death of his father; the second by the Foundation for Fundamental Rights on behalf of eight local families who lost family members in the attack.

In the UK, legal action resulted in a two-day ‘permission hearing’ in the High Court in October to determine whether a judicial review  should take place into the passing of intelligence to the US for drone strikes.  Martin Chamberlain, acting on behalf of Noor Khan whose father was killed in a US drone strike in Pakistan said, any GCHQ official who passed locational intelligence to the CIA knowing or believing that it could be used to facilitate a drone strike would be committing a serious criminal offence as there is no international armed conflict in Pakistan and that there had been no tacit approval for the strikes from the Pakistan government.

Government lawyers argued strongly to have the case dismissed and would neither confirm nor deny that the UK provides such information.  James Eadie QC, acting on behalf of William Hague argued that  a judicial review would mean delving into issues of national security, defence and diplomacy and could harm Britain’s national interests. In particular, it could affect relations with the US, ‘our closest ally, whose importance to our national security I assume needs no stating in front of this court,’ he said.  Lawyers acting on behalf of Noor Khan,  hope a judicial review would result in the court declaring the sharing of locational intelligence unlawful.

At the time of writing no decision about whether such judicial review should take place has been announced by the court. [Update – see below]

Other legal and public action has focused on the issue on the secrecy and lack of judicial process rather than directly on targeted killing.  In March an editorial in the Washington Post called on the Administration to release the Justice Department memorandum which officials have constantly referred to as outlying the legal case for undertaking targeted killing, but which they refuse to make public   In addition several US media organisations have undertaken legal action following the refusal of various government departments to answer Freedom of Information requests in relation to the use of drones as has the ACLU.  For more information on this aspect  its worth reading Kevin Gosztola’s piece Challenging the CIA’s Withholding of Records on Drone Killings.

Legal arguments and court cases are an important element of the growing civil society resistance to the use of armed drones. In forthcoming articles we shall review other challenges as well as looking at how the use of drones has expanded throughout the past year.

UPDATE:  On 21st December the High Court rejected Noor Khan’s application for a Judicial Review.  More details here.

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