Drone strikes: the legal controversy
MOSCOW, August 27 - RAPSI, Ingrid Burke. In the aftermath of several drone strikes carried out earlier this month in Pakistan’s North Waziristan, a Ministry of Foreign Affairs (MFA) spokesperson reiterated Friday Pakistan’s view that such attacks lack legal legitimacy. “As far as drone attacks are concerned, our position is very clear. As we have repeatedly said that we regard drone attacks as illegal, counter-productive, violation of our sovereignty, territorial integrity and in contravention of international law.” The spokesperson went on to explain that Pakistan hopes to reach a mutually acceptable solution by diplomatic means with the US government, rather than reaching out to such international justice bodies as the United Nations or the International Court of Justice.
Pakistan is not alone in its concern. Since the September 2011 targeted killing of Anwar al-Aulaqi, a Moslem cleric with dual US and Yemeni citizenship and a purported al-Qaeda leadership role, the legality of drone strikes have come under increasing scrutiny in the US and abroad.
In July, US advocacy groups the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) jointly filed a lawsuit against defense and intelligence officials, charging that the latter “killings violated fundamental rights afforded to all U.S. citizens, including the right not to be deprived of life without due process of law.”
The Independent [UK] reported that UN Special Rapporteur for Human Rights and Counterterrorism Ben Emmerson QC urged the US to “hand over footage of drone strikes or face UN inquiry.” He went on to explain that users of targeted killing technologies should voluntarily submit to impartial investigations for each death caused thereby, and called on the UN to create a mechanism to facilitate such accountability. Emmerson explained that at the most recent session of the UN Human Rights Council, “many states, including Russia, China and Pakistan called for an investigation into the use of drone strikes as a means of targeted killing.”
In the midst of this spiraling controversy, RAPSI has decided to objectively survey the substantive arguments favoring the legality of drone strikes as explained by representatives of the the White House, the Central Intelligence Agency (CIA), the Department of State (State), and the Department of Justice (DOJ).
The base-level legality of drone strikes
While delivering a speech in April on the ethics and efficacy of the Obama Administration’s counterterrorism policy, Assistant to the President for Homeland Security and Counterterrorism John O. Brennan proclaimed: “Yes, in full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States Government conducts targeted strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.”
According to Brennan, targeted strikes are permitted under US law insofar as the president, in his role as Commander in Chief of the US military (a role described in greater detail below) is empowered to protect the US from any imminent threat of attack. In response to the 9/11 terrorist attacks, Congress passed the Authorization for Use of Military Force, which permits the president to use necessary and proportionate force against any person or entity responsible for the attacks.
Brennan justified the legality of drone strikes under international law with reference to the US’ national self-defense rights, and to its ongoing armed conflict with al-Qaeda, the Taliban, and affiliated groups. In this context, according to Brennan, “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.”
The CIA’s legal matrix for the covert use of force
Speaking at Harvard Law School in April, CIA General Counsel Stephen W. Preston described a simple matrix that could be used to understand the legal analysis employed by the agency in considering its authority to use force in executing a covert action. Preston explained the importance of considering adherence to both US and international law in terms of the agency’s authority to act, as well as its execution of the given act.
The matrix would look something like this:
US Law considerations
International Law considerations
Authority to Act
· Whether the order for a covert action is a valid exercise of the US president’s constitutional powers, such as his Article II power to protect the country from an imminent threat of violent attack
· Whether congressional authorization for the action created an independent basis for the use of force
· Whether the action complies with the National Security Act of 1947
· Whether the action has been properly invoked by the inherent right to self-defense established by customary international law, and codified by Article 51 of the United Nations Charter
· Or in the alternative, whether the existence of an armed conflict might provide additional justification
Compliance with Execution
· Whether execution of the action is in compliance with the terms established by the relevant presidential order
· Whether execution of the action is in compliance with relevant Executive Orders, including the prohibition on assassinations
· Whether the execution of the action is in compliance with domestic law, including the US Constitution and relevant statutes
· Whether execution of the action complies with the four basic principles of the laws of war: Necessity, Distinction, Proportionality, and Humanity
The substantive domestic and international law
As outlined above, any covert use of force by the CIA must comply with the relevant instruments of domestic and international law. For clarification, we will briefly explain the instruments referred to by name.
Article II of the US Constitution established the office of the US presidency and vested this office with executive powers. Among these powers is the president’s role as Commander in Chief of the US military. Preston explained that this creates in the president the responsibility “to protect the country from an imminent threat of violent attack.”
The National Security Act of 1947 establishes that the president cannot order any covert action unless doing so is “necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States.” The statute further establishes congressional notification requirements relating to presidential orders for covert actions.
Furthermore, according to Brennan “A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.”
For international legal guidance, CIA attorneys turn to the right of each nation to act in self-defense, as established by customary international law, and codified by the Article 51 of the UN Charter. The article ensures the right of all member nations to act in self-defense against armed attacks, but only “until the Security Council has taken measures necessary to maintain international peace and security.” The text further requires states acting in the name of self-defense to report all such actions to the Security Council, and limits the scope of the self-defense power insofar as its exercise cannot “in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
Brennan further adds that, “The existence of an armed conflict might also provide an additional justification for the use of force under international law.”
The four principles of the law of war were described by US Attorney General Eric Holder as follows: “The principle of necessity requires that the target have definite military value. The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.”
The State department on legal challenges common to the drone debate
Speaking on the Obama Administration’s compliance with international law in March 2010, DOS Legal Adviser Harold Hongju Koh addressed several common legal challenges to his assertion that, “U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.”
Responding to the criticism that the act of targeting a leader of enemy forces constitutes a violation of the laws of armed conflict, Koh argued that, “individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law.” He explained that carefully targeting belligerent leadership can effectively narrow the casualty pool in armed conflict.
He further argues that there are no bans on the use of advanced weapons systems—such as drones—under the laws of war.
To the argument that lethal targeting constitutes unlawful extrajudicial killing, Koh explains that while in a state of armed conflict or engaged in self-defense, legitimate target lack standard legal process guarantees: “Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise.”
Finally, a common argument raised against the domestic legal legitimacy of drone strikes is that of the legal ban on assassinations. Koh maintains that drone strikes do not constitute assassinations: “the use of lawful weapons systems…. for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination.’”
The Justice Department on the use of drones against US citizens
This past March, during the fallout from the al-Aulaqi killing, US Attorney General Eric Holder laid out the legal framework for the lethal targeting of US citizens abroad. Explaining that “[T]here are people currently plotting to murder Americans, who reside in distant countries as well as within our own borders,” Holder urged that the Obama administration’s top priority is to keep its people safe.
After exploring the international and domestic legal bases for drone strikes, Holder argued that the targeted killing of a US citizen abroad—one who happens to be a senior al-Qaeda of affiliate leader, and who is “actively engaged in planning to kill Americans”—is legally justifiable if: the US government has determined that the citizen poses an imminent threat of violence to the US; successful capture is unlikely; ant the operation is likely to be consistent with the law of war principles described above: Necessity, Distinction, Proportionality, and Humanity.
The Justice Department on the use of drones outside of Afghanistan
Another argument common to the drone controversy is that of the US’ targeting in various countries. The day of the North Waziristan strikes, Pakistan’s MFA lamented in a statement, “Pakistan has consistently maintained that these attacks are a violation of its sovereignty and territorial integrity….”
To this point, Holder argues that the US is, “at war with a stateless enemy, prone to shifting operations from country to country. “ Thus the war on al-Qaeda has not been limited in geographic scope by Congress or the federal courts.
There you have it: every major facet of the US’ legal justification for drone strikes. Whether one agrees or disagrees with the US government’s position, this is certainly not the last we will hear of the debate. The passionate chorus of disapproval emanating from the Pakistani MFA, the ACLU and CCR, and human rights rapporteur Ben Emerson illustrate an increasing fervor in international and domestic opposition to lethal targeting. It remains to be seen how the drama will play out, but one thing is certain: the legality or lack thereof of targeted killing will enormously impact the development of the laws of war.