Drones and Targeted Killing

One of the fundamental issues related to the growing use of armed unmanned drones is how they have enabled a huge expansion of targeted killing, most controversially by the US in Pakistan.

International law scholar, Mary Ellen O’Connell writes:

“‘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.”

Although it has been an open secret that the US has used armed drones for such operations in Pakistan and Yemen since 2004, this was only publicly acknowledged for the first time during a ‘Google Hangout’ by President Obama in January 2012. Human rights experts immediately challenged President Obama to justify the strikes saying: “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.”

US public justifications

Over the following 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 (AUMF), 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, US 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 targeted killing of Anwar al-Alwaki, a joint US-Yemeni citizen in September 2011 (see below). 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 then chief counterterrorism adviser (now Director of the CIA), John Brennan gave a speech also attempting to justify targeted killing. While not making any new arguments, Brennan stated the US administration’s 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 responses to the speeches challenged the US Administration’s position on three broad grounds. Firstly, that the AUMF authorized the use of military force only against those involved with the terrorist attacks that occurred on September 11, 2001 and did not give the US Administration the broad authority that it has taken to undertake military action wherever it sees fit.

Secondly, that under international law it is not possible for the US (or any nation) to be in an armed conflict (as defined by the law) with Al Qaeda. In the words of Sir Christopher Greenwood, a leading expert on the law of armed conflict and the British Judge on the International Court of Justice:

“In the language of international law there is no basis for speaking of a war on Al-Qaeda or any other terrorist group, for such a group cannot be a belligerent, it is merely a band of criminals, and to treat it as anything else risks distorting the law while giving that group a status which to some implies a degree of legitimacy.”

In other words, as many commentators have argued, 9/11 was a crime and not an ‘act of war’ and should be dealt with as a crime.

And thirdly, that there was a lack of appropriate and publicly accountable due process. 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 a major article in the New York Times, based on on-the-record interviews with President Obama’s advisors (and therefore officially authorized) , outlined to some degree the process by which people are put on the US’ targeted kill list. According to the piece, 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 been dubbed by the press 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.

Signature Strikes

As well as the targeted killing of individuals, the US has undertaken what have become known as ‘signature strikes’, that is the targeted killing of individuals whose names are not known but their behaviour allegedly gives them the ‘signature’ or ‘hallmark’ of insurgents/terrorists. According to the NYT article, Obama at first 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 2012 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 an ‘Op Ed’ by former US President Jimmy Carter in the same month. 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.

Targeting US citizens – ‘the drone memo’

On 30 September 2011, Anwar al-Awlaki (sometimes spelt al-Aulaqi or al-Awlaqi), who the US alleges was a leader of al-Qaeda in Arab Peninsula (AQAP) was killed alongside Samir Khan in a US drone strike in Yemen. Both men held US citizenship and neither was the subject of any criminal proceedings. Numerous US political commentators and legal experts expressed strong opposition to this targeted killing as the pair held US citizenship and al-Awlaki’s father and the ACLU had previously attempted to ensure through the courts that he would not be assassinated. As Ben Wizner of the American Civil Liberties Union (ACLU) put it: “If the Constitution means anything, it surely means that the President does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state.” To the rest of the world the public outcry in the US against the targeting of US citizens (rather than citizens of other countries) seems inherently prejudiced, but it has brought the whole issue of targeted killing by drones on to the political agenda US.

In October 2011 the existence of secret 50-page memo written by the Justice Department’s Office of Legal Counsel in June 2010, which justified the assassination of al-Awlaki, was revealed to the New York Times. According to the paper the memo “provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war.”

In February 2012 a confidential 16-page Justice Department memo, dubbed ‘the White Paper’ was leaked to NBC News. The paper was apparently a summary of the classified internal memo drafted by the Office of Legal Counsel to authorize the targeted killing Anwar al-Awlaki, The paper argued that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.

As Law Professor David Cole of Georgetown university wrote in an excellent essay for the New York Review of Book:

“Perhaps the most disturbing feature of the paper is how it interprets the criteria of “imminence” and “feasibility of capture.” It argues correctly that, under the international legal doctrine of self-defense, lethal force is justified in response to an imminent threat of attack upon the United States. But it then defines “imminence” so broadly that it effectively eliminates the requirement altogether. There need be no showing, the paper claims, that an attack will “take place in the immediate future.” Instead, it coins what it euphemistically calls a “broader concept of imminence.” On this view, an al-Qaeda leader by definition poses an imminent threat, no matter what he is doing—because al-Qaeda is continually plotting attacks against the United States, will undertake them whenever it can do so, and we may not be aware of all such plots. In such a case, all that is required is a “window of opportunity,” not an immediate threat.”

The US Administration fights back

Stung by the international and domestic criticism of its drone targeted killing programme, in May 2013 President Obama delivered a major speech on counterterrorism focusing in particular on the use of armed drones. At the same time a “fact sheet” on US policy on the use of force outside declared wars was published, as was a transcript of a background briefing given by senior US officials to journalists on the issue.

Unsurprisingly, President Obama insisted that “America’s actions are legal”, that the “war with al Qaeda, the Taliban, and their associated forces… is a just war – a war waged proportionally, in last resort, and in self-defense” and that drone strikes “have saved lives.” Obama went on to say that he had signed “Presidential Policy Guidance” that had codified his administration’s use of force against terrorists. However this document too is to remain secret.

In the “fact sheet” pulished to accompany the speech the Administration states:

“The United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons” and that “the following criteria must be met before lethal action may be taken:

Near certainty that the terrorist target is present;

Near certainty that non-combatants will not be injured or killed;

An assessment that capture is not feasible at the time of the operation;

An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and

An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.”[

The speech and new documents were initially reported by the press as limiting the way drones would be used in the future, however once the speech was digested many raised serious questions about whether the ‘new policy’ would in fact make any difference.

A year later in June 2014 in response to a long-running lawsuit from the New York Times and the ACLU, a US court ordered that a redacted version of the ‘drone memo’ be released. Far from placating critics, the release of the actual memo brought scorn from many sources including the New York Times which wrote:

“One might have expected a thoughtful memo that carefully weighed the pros and cons and discussed how such a strike accords with international and constitutional law. Instead, the memo turns out to be a slapdash pastiche of legal theories — some based on obscure interpretations of British and Israeli law — that was clearly tailored to the desired result. Perhaps the administration held out so long to avoid exposing the thin foundation on which it based such a momentous decision.”

Constitutional law expert Steve Vladeck told the Bureau of Investigative Journalism:

“What I found most striking was the narrowness of the analysis. Rather than providing deep insights into the scope of the government’s authority to use lethal force against its own citizens as a general matter, the memo really is focused on the case-specific facts posed by Anwar al-Aulaqi. As a result, the analysis is really only useful for that particular case – and raises as many questions as it answers with respect to the government’s authority in other cases.

The key here is the observation that the underlying legality of the operation depends entirely on facts that the memo – written 14 months beforehand – could never have properly analysed. Whether Aulaqi really posed an imminent threat, whether no other means of incapacitating him were feasible, and whether the force we used was proportional under the circumstances are questions that can only be answered – by courts.”

Growing condemnation

Meanwhile international opposition to the US drone targeted killing grows. In February 2014 a European Parliament resolution calling on EU Member States not to perpetrate “unlawful targeted killings or facilitate such killings by other states” and calling on them to “oppose and ban practices of extra judicial targeted killings” passed in a landslide vote. Public opinion polls show that globally opposition to the US targeted killing programme is growing and European governments cooperating with the US targeted killing programme through the provision of intelligence material or use of military facilitates is coming under increasing scrutiny.

In March 2014 UN Special Rapporteur Ben Emmerson issued his final report to the UN Human Rights Council on the impact of drone strikes on civilians. The report argued that there was a ‘need to promote an international consensus on the core legal principles applicable to the use of armed drones in counter-terrorism operations.’ Emmerson recommended that a panel of experts discuss the issue at the September 2014 meeting of the Council. While the discussion took place it is unclear at the time of writing what direction this initiative will now take.

In June 2014 The Stimson Center published a key report into the use of armed drones by the US. Written by former senior US military and administration officials, the reports argues that even though it accepts the Obama administration’s position that it is in a war with al-Qaida and associated forces, nevertheless “it would be difficult to conclude that US targeted strikes are consistent with core rule of law norms.” Further the report declares that “the availability of lethal UAV technologies has enabled US policies that likely would not have been adopted in the absence of UAVs.”

At the time of writing (October 2014) the US use of drones for targeted killing continues.

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