U.S. offers shaky legal justification for drone strikes

After years of secretly carrying out drone attacks that have killed an estimated 3,000 people in the Middle East, South Asia and Africa, the United States has for the first time formally admitted the program, but stopped short of lifting the shroud of secrecy entirely.

Last week, President Obama’s counter-terrorism adviser John Brennan acknowledged the growing international criticism against the U.S. drone program – including from countries that are the target of these attacks, such as Pakistan – but claimed that the targeted killings conform with U.S. and international law.

He explained that Obama wanted to be more open about the practice.

“A few months after taking office, the president travelled to the National Archives where he discussed how national security requires a delicate balance between secrecy and transparency,” Brennan said. “He has consistently encouraged those of us on his national security team to be as open and candid as possible as well.”

In that interest of greater transparency, Brennan acknowledged the U.S. government’s use of drone strikes, the first formal recognition by a government official of a covert program that has been widely known about for years.

“So let me say it as simply as I can,” Brennan said. “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.”

Brennan cited a March speech by Attorney General Eric Holder which attempted to provide a legal basis for some of the Obama administration’s more questionable tactics in the war on terror, including extrajudicial assassinations of American citizens.

“Attorney General Holder discussed how our counterterrorism efforts are rooted in, and are strengthened by, adherence to the law, including the legal authorities that allow us to pursue members of al-Qaida, including U.S. citizens, and to do so using technologically advanced weapons,” Brennan said.

Much like Holder’s earlier explanations, however, Brennan focused on narrow legal principles while ignoring the broader implications of these policies for domestic and international law. In Holder’s speech last January, he split hairs over concepts of due process and judicial process, claiming that since the Executive Branch has a secret process by which it determines whether a U.S. citizen shall be targeted for assassination, it is fulfilling constitutional requirements.

“Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces,” Holder said.  “This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”

The attorney general also took issue with the question of whether targeted killings of terrorism suspects should properly be considered “assassinations.” He acknowledged that if these killings were considered assassinations, they would be unlawful, but since the U.S. government was pre-emptively killing people in “self defense,” the use of lethal force is perfectly legal.

As this blog pointed out in response to Holder’s speech, his narrow legal reasoning disregarded the international community’s most significant objections to “targeted killings,” concerns most clearly articulated in a 2010 United Nations report.

The UN report objected to the very term “targeted killing,” saying that it has no basis or definition in international law, but nevertheless stated that a targeted killing outside of an actual battlefield “is almost never likely to be legal.” The UN report rejected “pre-emptive self-defense” as a justification for killing terrorism suspects far from combat zones.

“This expansive and open-ended interpretation of the right to self-defense goes a long way towards destroying the prohibition on the use of armed force contained in the UN Charter,” said Philip Alston, the UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions. “If invoked by other states, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos.”

Like Holder, Brennan’s April 30 speech utilized a constricted legal argument on behalf of U.S. policy, focusing this time on the technology of unmanned aerial drones rather than the broader legal principles raised by the targeted killings.

“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,” he said.

But regardless of whether “remotely piloted aircraft” are used or whether more traditional means for dropping bombs are used, the primary legal concern is whether the policy is violates the UN Charter’s prohibition on the use of armed force, a point left unaddressed by Brennan’s narrow legal reasoning.

As the 2010 UN report states: “Whether or not a specific targeted killing is legal depends on the context in which it is conducted: whether in armed conflict, outside armed conflict, or in relation to the interstate use of force.”

Under the rules of international humanitarian law, the report points out, “targeted killing is only lawful when the target is a ‘combatant’ or ‘fighter’ or, in the case of a civilian, only for such time as the person ‘directly participates in hostilities.’”

In addition, the killing must be militarily necessary, the use of force must be proportionate so that any anticipated military advantage is considered in light of the expected harm to civilians in the vicinity, and everything feasible must be done to prevent mistakes and minimize harm to civilians. These standards apply regardless of whether the armed conflict is between States (an international armed conflict) or between a State and a non-state armed group (non-international armed conflict), including alleged terrorists.

Since the U.S. drone strikes are being carried out far from any battlefield, it is inconceivable that they conform with the “military necessity” requirement under international law, a question that Brennan skillfully sidestepped by zeroing on the technological aspects of targeted killings carried out by unmanned aerial drones.

The legality of the attacks has been further called into question with a new directive issued by President Obama which authorizes the CIA and the military to launch attacks even when the identity of the targets are not known, in what the U.S. has dubbed “signature strikes.”

According to the Washington Post, congressional officials have expressed concern that using signature strikes would increase the likelihood that those who are killed by drone attacks are not involved in plots against the United States.

This new expanded policy exacerbates the violations of international law inherent in the U.S. drone program, which was already shrouded by ambiguity over who was being killed by these remote-controlled aerial bombing machines. As the UN report notes,

A State killing is legal only if it is required to protect life (making lethal force proportionate) and there is no other means, such as capture or nonlethal incapacitation, of preventing that threat to life (making lethal force necessary). The proportionality requirement limits the permissible level of force based on the threat posed by the suspect to others.

Similarly, Human Rights Watch points out: “During an armed conflict between a state and a non-state armed group, it is lawful to target only persons taking a direct part in hostilities. This would include individuals planning and directing operations, but not those linked to the armed group in a non-operational way.”

Considering that the U.S. policy now does not even require that the identity of the targets be known, it is impossible to meet the proportionality requirement under international law. After all, how can U.S. officials know whether the strikes are “required to protect life” if they don’t even know who it is that they are targeting?

The U.S. drone program also raises significant questions of sovereignty, another issue raised by the UN and glossed over by Brennan’s speech.

As the UN noted,

Targeted killings conducted in the territory of other States raise sovereignty concerns. Under Article 2(4) of the UN Charter, States are forbidden from using force in the territory of another State. When a State conducts a targeted killing in the territory of another State with which it is not in armed conflict, whether the first State violates the sovereignty of the second is determined by the law applicable to the use of inter-state force, while the question of whether the specific killing of the particular individual(s) is legal is governed by IHL and/or human rights law. …

A targeted killing conducted by one State in the territory of a second State does not violate the second State’s sovereignty if either (a) the second State consents, or (b) the first, targeting, State has a right under international law to use force in self-defence under Article 51 of the UN Charter,  because (i) the second State is responsible for an armed attack against the first State, or (ii) the second State is unwilling or unable to stop armed attacks against the first State launched from its territory. International law permits the use of lethal force in self-defence in response to an “armed attack” as long as that force is necessary and proportionate.

Brennan briefly addressed the issue of sovereignty in his speech, while deftly skirting the issue of consent:

Finally, when considering lethal force we are of course mindful that there are important checks on our ability to act unilaterally in foreign territories.  We do not use force whenever we want, wherever we want.  International legal principles, including respect for a state’s sovereignty and the laws of war, impose constraints.  The United States of America respects national sovereignty and international law.

Brennan’s vague claims of the U.S.’s respect for national sovereignty and the laws of war, however, ignored the fact that some countries, notably Pakistan, have consistently objected to U.S. drone strikes carried out on their territory.

Pakistan has repeatedly protested the U.S. attacks, closing its Afghan border crossings to NATO supplies last November in retaliation for American airstrikes that killed 24 Pakistani soldiers. The government also kicked the U.S. out of a base used by American drones.

On April 12, Pakistan’s parliament unanimously approved a list of conditions that the U.S. must meet if relations are to be restored and NATO supply routes to Afghanistan reopened. The parliament further demanded an immediate end to U.S. drone attacks and an unconditional apology for the airstrike in November that killed 24 soldiers. (The U.S. has expressed “regret” for killing the soldiers, but has declined to apologize.)

Last week, on the same day that Brennan gave his speech voicing the U.S.’s respect for national sovereignty, the Pakistani government condemned a U.S. drone strike that killed three suspected militants in the northwest of the country, the first since the country’s parliament demanded that Washington end the attacks.

While Pakistan attempts to utilize diplomatic pressure to cease the U.S. drone attacks on its territory, American antiwar and human rights groups are ramping up the grassroots pressure to halt the policy as well. Code Pink has a “Ground the Drones” program which includes a petition to “tell Obama that we need a surge in diplomacy, not a surge in violence.”

The ACLU has reiterated its calls for the Obama administration to release memos from the Office of Legal Counsel providing the purported legal justification for the targeted killing program.

ACLU Deputy Legal Director Jameel Jaffer said Brennan’s speech “supplies legal conclusions, not legal analysis.”

We continue to believe that the administration should release the Justice Department memos underlying the program – particularly the memo that authorizes the extrajudicial killing of American terrorism suspects. And the administration should release the evidence it relied on to conclude that an American citizen, Anwar al-Aulaqi, could be killed without charge, trial, or judicial process of any kind.

The ACLU called it a “dangerous” proposition that the U.S. considers the entire planet a battlefield. “It is dangerous to give the President the authority to order the extrajudicial killing of any person – including any American – he believes to be a terrorist,” said Hina Shamsi, director of the ACLU National Security Project.

“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.”

For its part, Fire Dog Lake has launched a petition drive demanding that the Obama administration release legal memos related to its drone and assassination program.

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Campaigning for a United States in compliance with its international obligations. Follow on Twitter here: https://twitter.com/compliancecamp Facebook: https://www.facebook.com/compliancecamp Comments, article submissions or news leads are welcome at compliancecampaign [at] gmail.com.

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