Drones

Facts About the U.S. Drone Program
Human Cost

For over two decades, the US government has actively downplayed or denied the killing of civilians by unmanned aerial vehicles (UAVS). Euphemistic language invoking the “precision” of this modern weapon has been repeatedly deployed by state officials, and uncritically promulgated by the mainstream press. Take for instance the following claim uttered by John O. Brennan, the former counter-terrorism advisor to US President Barack Obama, and current director of the CIA:

“One of the things President Obama has insisted on is that we’re exceptionally precise and surgical … if there are terrorists who are within an area where there are women and children or others, you know, we do not take such action that might put those innocent men, women and children in danger.”

In September of 2012, a group of scholars from both Stanford and NYU law schools published a 182-page report titled “Living Under Drones,” in which they urged both state officials and the general public to “re-evaluate” the current US policies addressing “terrorism through targeted killings and drone strikes.” To justify this re-evaluation, they listed four central reasons, including, of course, civilian casualties. In their own words, “while civilian casualties are rarely acknowledged by the US government, there is significant evidence that US drone strikes have injured and killed civilians.”

Based on the estimates provided by The Bureau of Investigative Journalism, a London-based not-for-profit organization first established in 2010, the report claims that “from June 2004 through mid-September 2012, available data indicate that drone strikes killed 2,562-3,325 people in Pakistan, of whom 474-881 were civilians, including 176 children. TBIJ reports that these strikes also injured an additional 1,228-1,362 individuals.”

Source: Chris Woods, “Absolute Zero: The CIA’s Drone War and Civilians,” The Huffington Post, 19 July 2011; International Human Rights and Conflict Resolution Clinic at Stanford Law School and Global Justice Clinic at NYU School of Law, Living Under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan vii (2010). See also Mary Ellen O’Connell, The Questions Brennan Can’t Dodge, The New York Times Opinion Pages, Feb. 6, 2013.

In its latest report dated from April 1, 2015, The Bureau of Investigative Journalism provides the following estimates:

Pakistan
(June 2004 to date)
Yemen
(Nov 2002 to date)*
Somalia
(Jan 2007 to date)*
Afghanistan
(Jan 2015 to date)
US drone strikes 414 90-109 9-13 2
Total reported killed 2,445-3,945 431-639 23-105 15-21
Civilians reported killed 421-960 65-96 0-5 0
Children reported killed 172-207 8 0 0
Reported injured 1,142-1,720 86-215 2-7 0

As explained by the BIJ, the “estimates are based predominantly on open sources information like media reports. Sometimes it is not possible to reconcile details in different reports. This is why use ranges for our record of casualties and, in the case of Yemen and Somalia, our strike tallies.”

Source: The Bureau of Investigative Journalism, Recorded US Drone Strikes to Date, April 1, 2015.

Further investigations into the so-called “precision” of US drones and targeted killing operations reveal an even more grotesque reality. In November of 2014, the British human rights charity Reprieve released a report on the deaths resulting from US drone strikes in Yemen and Pakistan from November of 2002 to November of 2014. In general terms, it concluded that “US drone strikes in Yemen and Pakistan have killed as many as 1,147 unknown people in failed attempts to kill 41 named individuals.” It worth mentioning here a summary of Reprieve’s major findings:

In Pakistan, 24 men were reported as killed or targeted multiple times. Missed strikes on these men killed 874 people, including 142 children. In Yemen, 17 men were reported killed or targeted multiple times. Missile strikes on these men killed 273 others and accounted for almost half of all confirmed civilian casualties and 100% of all recorded child deaths. In targeting Ayman al Zawahiri, the CIA killed 76 children and 29 adults. They failed twice, and Ayman al Zawahiri is reportedly still alive. It took the US six attempts to kill Qari Hussain, a Pakistani target. During these attempts, 128 people were killed, including 13 children. Each assassination target on the US government’s so-called Kill List ‘died’ on average more than three times before their actual death.

Jennifer Gibson, an attorney and author of the report, evinced what we believe should be by now a self-evident fact:

These ‘high value targets’ appear to be doing the impossible – dying not once, not twice, but as many as six times. At the same time, hundreds of unknown men, women and children are also caught in the crosshairs. President Obama continues to insist drone strikes are ‘precise’, but when targeting one person instead kills as many as 128 others, there’s only one conclusion that can be drawn – there’s nothing targeted about the US drone programme.

Source: Reprieve, US Drone Strikes Kill 28 Unknown People for Every Intended Target: New Reprieve Report Reveals, November 25, 2014; and Reprieve, “You Never Die Twice: Multiple Kills in the US Drone Program” (2014).


Harold Koh on Drones:

On March 25, 2010, Harold Koh, then legal adviser of the U.S. Department of State, stated the following during a talk for the Annual Meeting of the American Society of International Law:

In the same way, in all of our operations involving the use of force, including those in the armed conflict with al-Qaeda, the Taliban and associated forces, the Obama Administration is committed by word and deed to conducting ourselves in accordance with all applicable law. With respect to the subject of targeting, which has been much commented upon in the media and international legal circles, there are obviously limits to what I can say publicly. What I can say is that it is the considered view of this Administration–and it has certainly been my experience during my time as Legal Adviser 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.

The United States agrees that it must conform its actions to all applicable law. As I have explained, as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law. As a matter of domestic law, Congress authorized the use of all necessary and appropriate force through the 2001 Authorization for Use of Military Force (AUMF). These domestic and international legal authorities continue to this day.

Source: Lawfare, “The Obama Administration and International Law,” Speech by Harold Hongju Koh, Legal Adviser, U.S. Department of State,” Mar. 25, 2010.

One day after Koh’s speech at American Society of International Law, Mark Hosenball published an essay for Newsweek narrating Koh’s “full-throated public defense of drone missile attacks”:

A noted human-rights expert who is serving as the State Department’s top lawyer issued an unusually full-throated public defense of drone missile attacks on terrorists. Harold Koh left his position as dean of Yale Law School to become State Department legal adviser when Barack Obama took office. As an academic, he had harshly criticized Bush administration policies on intelligence issues. But in a speech Thursday to the American Society of International Law, Koh vigorously defended the legality of CIA drone missile strikes against targets in Pakistan, which were begun under President Bush and have now become a prominent part of the Obama administration’s antiterror efforts.

According to Hosenball, Koh unveiled the two principles guiding drone operations: “distinction” and “proportionality.”

“Distinction,” he said, means a strike must be limited to military targets; civilians or their property “shall not be the object” of any attack. “Proportionality,” he said, means that no attack should be launched that is expected to cause “excessive” damage or loss of live to civilians or their property, in comparison to the “direct military advantage anticipated.”

Hosenball also reported on Koh’s response to those who argue that targets of drone attacks have the right to a legal process under international law as well as U.S. domestic law:

Koh continued: “[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.”

He also addressed the issue of whether the drone attacks violate U.S. laws banning assassinations, asserting flatly that “under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—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.'”

In November of 2010, meanwhile, Koh was one of the 30 officials representing the United States during a meeting of the UN Human Rights Council in Geneva. As journalist Mark Tran from The Guardian reports, the US delegation “was forced to listen to repeated calls for the US to put an end to the death penalty.” Koh then defended the U.S. by claiming that “capital punishment was a subject of vigorous debate and litigation in the US and was applied for in only the most serious crimes.” He resumed his statement on the death penalty by reiterating its legality. In his own words, “International human rights law does not bar it per se.”

When debating drones, Koh “defended the use of unmanned drone aircraft to kill ‘high value targets’ on the Afghanistan-Pakistan border and in Yemen.” And again, he claimed that:

“Our targeting practice complies with all human rights law,” he said. “Operations are conducted in conformity with rule of law principles. It has been long legitimate to target enemy leaders and force is directed only at lawful targets.”

Source: Mark Tran, “UN Human Rights Council Urges US to End Death Penalty,” The Guardian, Nov. 5, 2010. 

In 2011, Koh offered a speech to the European University Institute’s Global Governance Programme in which he again offered a “robust defense” of targeted killings. According to Cian Murphy, a journalist for The Guardian:

“[T]here are those who see targeted killing as part of a constitutional response to terrorism. Harold Koh, a former Dean of Yale Law School and strong critic of the Bush administration, now serves as legal adviser to the State Department. He supports the use of targeted killing and in a March 2011 speech to the European University Institute’s Global Governance Programme offered a robust defence of the tactic.”

Source: Cian Murphy, Chomsky takes Obama to task, The Guardian, Oct. 13, 2011.

The Daily Beast reporter, Tara McKelvey, reported in an April 2012 article entitled, “Interview with Harold Koh, Obama’s Defender of Drone Strikes”:

In March 2010, one year after Koh became legal adviser, he gave a speech at an American Society of International Law (ASIL) conference in Washington, defending the official process of placing people on a death list and explaining that the procedures are “extremely robust.” For nearly two years, Koh was the only administration official who spoke on the record—in public forums—about the legal basis for the program.

Earlier this year, Jeh Johnson, the Pentagon’s general counsel, and Attorney General Eric Holder Jr. both spoke about the strikes, with Holder saying Americans had the right to target someone who posed “an imminent threat of violent attack.” Overall, however, Koh remains the only official to speak consistently about the targeted-warfare program; he blogged about the killing of Osama bin Laden, for example, and at the Holocaust Memorial Museum in Washington and other venues, he has defended the drone strikes, a startling turn of events for a man who had previously condemned these kinds of attacks and moreover seemed to embody the highest principles of international law.

“Why did he get involved? It’s quite inconsistent with his general work before. Koh’s claim to fame as a law professor has to do with the notion that the way international law and human rights become effective is through internalization in people like the legal adviser at the State Department,” says Bruce Ackerman, a Yale law professor. “To put it gently, targeted killings are not acceptable under international law.”

McKelvey reports that in response to the question, “How do we deliver justice to the enemy?” Koh stated:

“I think there are different ways. It can be delivered through trials. Drones also deliver.”

Source: McKelvey, “Interview with Harold Koh, Obama’s Defender of Drone Strikes”, The Daily Beast, Apr. 8, 2012.

In his 2013 book, The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth, Matt Mazzetti writes that:

[I]n the decade since the September 11 attacks, legions of U.S. government lawyers had written detailed opinions about why the targeted-killing operations carried out by the CIA and Joint Special Operations Command far from declared war zones didn’t violate President Ford’s assassination ban. Just as lawyers for President Bush had redefined torture to permit extreme interrogations by the CIA and the military, so had lawyers for President Obama given America’s secret agencies latitude to carry out extensive killing operations.

One of them was Harold Koh, who had come to Washington from Yale Law School, where he had been the school’s dean. He had been a fierce critic from the left of the Bush administration’s war on terror and had decried the CIA’s interrogation methods–including waterboarding–as illegal torture. But when he joined the government as the State Department’s top lawyer, he found himself spending hours pouring over volumes of secret intelligence in order to pass judgment over whether men should live or die. In speeches, he offered a muscular defense of the Obama administration’s targeted killing operations, saying that in a time of war, the American government was under no obligation to give suspects normal due process rights before putting them on a kill list.

Still, in moments of public reflection, he spoke of the psychological burdens of spending so much time reading the biographies of the young men the United States was debating whether or not to kill. “As the dean of Yale Law School I spent many, many hours looking at the résumés of young twenty-year-olds, students in their twenties, trying to figure out which ones should be admitted,” he said during one speech. “I now spend a comparable amount of time studying the résumés of terrorists, the same age. Reading about how they were recruited. Their first mission. Their second mission. Often I know their background as intimately as I knew my students.”

Source: Mazzetti, The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth (2013).


Critiques of the U.S. drone program:

In 2010, the same year that Koh publicly defended the legality of the U.S. drone program before the American Society of International Law, the U.N. Special Rapporteur on extrajudicial, summary, or arbitrary executions, Philip Alston, outlined why the U.S. drone program violates applicable international humanitarian and human rights laws.

A targeted killing is the intentional, premeditated and deliberate use of lethal force by States or their agents acting under colour of law, or by an organized armed group in armed conflict, against a specific individual who is not in the physical custody of the perpetrator. In recent years, a few States have adopted policies, either openly or implicitly, of using targeted killings, including in the territories of other States.

Such policies have been justified both as a legitimate response to “terrorist” threats and as a necessary response to the challenges of “asymmetric warfare.” In the legitimate struggle against terrorism, too many criminal acts have been re-characterized so as to justify them within the framework of the law of armed conflict. New technologies, and especially unmanned combat aerial vehicles or “drones”, have been added into this mix, by making it easier to kill targets, with fewer risks to the targeting State.

The result of this mix has been a highly problematic blurring and expansion of the boundaries of the applicable legal frameworks — human rights law, the laws of war, and the law applicable to the use of inter-state force. Even where the laws of war are clearly applicable, there has been a tendency to expand who may permissibly be targeted and under what conditions. Moreover, the States concerned have often failed to specify the legal justification for their policies, to disclose the safeguards in place to ensure that targeted killings are in fact legal and accurate, or to provide accountability mechanisms for violations. Most troublingly, they have refused to disclose who has been killed, for what reason, and with what collateral consequences. The result has been the displacement of clear legal standards with a vaguely defined license to kill, and the creation of a major accountability vacuum.

In terms of the legal framework, many of these practices violate straightforward applicable legal rules. To the extend that customary law is invoked to justify a particular interpretation of an international norm, the starting point must be the policies and practice of the vast majority of States and not those of the handful which have conveniently sought to create their own personalized normative frameworks. It should be added that many of the justifications for targeted killings offered by one or other of the relevant States in particular current contexts would in all likelihood not gain their endorsement if they were to be asserted by other States in the future (See 2010 Report of the Special Rapporteur, paras. 1-4).

The Special Rapporteur then turned to the arguments in favor of targeted killings put forward by Koh:

The Legal Adviser to the Department of State recently outlined the Government’s legal justifications for targeted killings. They were said to be based on its asserted right to self-defense, as well as on IHL [International Humanitarian Law], on the basis that the US is ‘in an armed conflict with Al Qaeda, as well as the Taliban and associated forces.’ While this statement is an important starting point, it does not address some of the most central legal issues including: the scope of the armed conflict in which the US asserts it is engaged, the criteria for individuals who may be targeted and killed, the existence of any substantive or procedural safeguards to ensure the legality and accuracy of killings, and the existence of accountability mechanisms. (See 2010 Report of the Special Rapporteur, para. 22).

Addressing Koh’s argument that U.S. targeted killing practices are legal due to the fact that the U.S. is in an armed conflict with Al Qaeda, the Special Rapporteur stated:

Taken cumulatively, [IHL] factors make it problematic for the US to show that — outside the context of the armed conflicts in Afghanistan or Iraq — it is in a transnational non-international armed conflict against “al Qaeda, the Taliban, and other associated forces” without further explanation of how those entities constitute a “party” under the IHL of non-international armed conflict, and whether and how any violence by any such group rises to the level necessary for an armed conflict to exist. (See 2010 Report of the Special Rapporteur, para. 53).

The Special Rapporteur then turned to Koh’s argument that al-Qaeda and other “associated forces” may lawfully be targeted and killed because they constitute parties with which the U.S. government is in an armed conflict:

With respect to the existence of a non-state group as a “party”, al-Qaeda and other alleged ‘associated’ groups are often only loosely linked, if at all. Sometimes they appear to be not even in groups, but a few individuals who take ‘inspiration’ from al Qaeda. The idea that, instead, they are part of continuing hostilities that spread to new territories as new alliances form or are claimed may be superficially appealing but such ‘associates’ cannot constitute a ‘party’ as required by IHL — although they can be criminals, if their conduct violates US law, or the law of the State in which they are located.

To ignore these minimum requirements, as well as the object and purpose of IHL, would be to undermine IHL safeguards against the use of violence against groups that are not the equivalent of an organized armed group capable of being a party to a conflict — whether because it lacks organization, the ability to engage in armed attacks, or because it does not have a connection or belligerent nexus to actual hostilities. It is also salutary to recognize that whatever rules the US seeks to invoke or apply to al Qaeda and any ‘affiliates’ could be invoked by other States to apply to other non-state armed groups. To expand the notion of non-international armed conflict to groups that are essentially drug cartels, criminal gangs, or other groups that should be dealt with under the law enforcement framework would be to do deep damage to the IHL and human rights frameworks. (See 2010 Report of the Special Rapporteur, paras.55-6).

On the secrecy of the U.S. drone program and the secret criteria whereby individuals are targeted and killed, the Special Rapporteur wrote:

The failure of States to comply with their human rights law and IHL obligations to provide transparency and accountability for targeted killings is a matter of deep concern.

The refusal by States who conduct targeted killings to provide transparency about their policies violates the international legal framework that limits the unlawful use of lethal force against individuals. (See 2010 Report of the Special Rapporteur, para. 87).

Source: Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Human Rights Council, U.N. Doc. A/HRC/14/24/Add. 6 (May 28, 2010).

In a 2013 Op-Ed for The New York Times, international lawyer and professor Mary Ellen O’Connell wrote about the leaked Department of Justice “White Paper”, which laid out the legal rationale for killing American citizens overseas via drones:

The paper’s sweeping claims of executive power are audacious. For a threat to be deemed “imminent,” it is not necessary for a specific attack to be under way. The paper denies Congress and the federal courts a role in authorizing the killings — or even reviewing them afterward. In doing so, it cites the authorization of force that Congress granted to President George W. Bush after 9/11.

I was struck to find my name on Page 4 of the white paper, which summarized my argument that “the conflict between the United States and Al Qaeda cannot lawfully extend to nations outside Afghanistan in which the level of hostilities is less intense or prolonged than in Afghanistan itself.”

The lawyers dismissed my view, arguing that “there is little judicial or other authoritative precedent” on the issue, since the nation is fighting a “transnational, non-state actor” where the “principal theater of operations” is not in a country in conflict with America.

The Bush administration memos that attempted to justify torture, indefinite detention and illegal wiretapping have been widely rejected. How, then, can Mr. Brennan and other advisers to Mr. Obama (a former lecturer on constitutional law) condone this spurious effort to justify targeted killings?

Terms like “armed conflict,” “combat” and “battlefield” are integral to the proper functioning of human rights law and international humanitarian law, including the Geneva Conventions. Such definitions are well established and can no more be tampered with to suit the administration’s preferences than can the definition of torture. Sadly, the Justice Department’s Office of Legal Counsel, which under Mr. Bush drafted the notorious memo that narrowly construed torture as severe pain causing “organ failure, impairment of bodily function, or even death,” has now, under Mr. Obama, drafted the targeted-killings document.

Significantly, O’Connell points out that the White Paper cites to Koh’s 2010 speech before ASIL, supra, in support of its legal arguments:

The white paper cites a 2010 speech by Harold H. Koh, the State Department’s top lawyer and a former dean of Yale Law School. He once testified that the main Bush-era torture memo was “perhaps the most clearly erroneous legal opinion I have ever read.” Having read the white paper, I think it’s a tossup.

Source: Mary Ellen O’Connell, The Questions Brennan Can’t Dodge, The New York Times Opinion Pages, Feb. 6, 2013.

In October 2014, international lawyer and professor Mary Ellen O’Connell stated in an interview with journalist Kourosh Ziabari:

Two U.S. presidents have authorized the use of drones to carry out attacks beyond armed conflict zones in Yemen, Pakistan and Somalia. The deaths of all persons from missile strikes is unlawful. The situation in Afghanistan is more complicated because it is the scene of a civil war. Because [ex-]President Karzai has demanded a zero civilian death rate and his policies are the only legitimate ones in the civil war, then civilian deaths are unlawful there, too. As for why international institutions have not done more, the U.S. has a veto that prevents the Security Council from taking up the matter.

Source: Kourosh Ziabari, Legality of Obama’s Drone Policy: A Conversation with Prof. Mary Ellen O’Connell, International Policy Digest, Oct. 4, 2014.

Jameel Jaffer, the current deputy legal director of the ACLU and director of its Center for Democracy, said in an interview with Jonathan Horowitz:

When I use the phrase drone program I’m talking about the targeted killing program. As everybody knows–since 2001, the U.S. government has killed–hundreds, thousands of people–using armed drones mainly–in places far removed from actual battlefields. That is something that we know to be true. But there are many things that are murkier. First–first it’s not entirely clear who it is that the government is killing.

That is a difficult question for a number of different reasons. It’s difficult because the government doesn’t acknowledge specific strikes. It doesn’t release the names of the people who have been killed to the extend it knows those names.

It doesn’t release aggregate casualty numbers.

[T]here are independent groups that are keeping track of the U.S. use of armed drones. And those groups estimate that about 4,300 people have been killed by American armed drones. And of those, about 1,000 were civilians.

[W]e’ve killed hundreds of people whose identities we don’t know in countries we can’t name on the basis of standards that are secret, on the basis of evidence that has never been presented to a court. And I think you don’t need to be a legal genius to understand that there’s something wrong with that. It’s inconceivable to me that people would be so complacent about this policy if this policy were being proposed by the Bush administration.

The reason it’s being accepted is that people trust President Obama, they trust John Brennan, they trust Harold Koh. Whether that trust is well-placed or not is, you know, other people can decide.

Source: Open Society Foundations, “Litigating the Drone Program in American Courts”, Interview with Jameel Jaffer.

Most recently, Mary Ellen O’Connell, an international lawyer and professor of law at Notre Dame, argued in a New York Times op-ed against the legality of drones beyond battlefields:

The law on drones is clear: U.S. Predator and Reaper drones launch the Hellfire missile. Hellfire missiles were originally developed to destroy tanks. They are battlefield weapons. Under international law they may be used in situations of armed conflict hostilities, which means the actual fighting of an armed conflict as defined under international law — limited geographical spaces where organized armed groups are engaged in actual fighting of some intensity.

In response to the argument that the world is a battlefield, Professor O’Connell wrote:

The Bush administration tried to characterize the whole world as a battlefield to justify the first use of a drone to kill individuals outside an actual armed conflict. That happened in Yemen in November 2002 and resulted in the deaths of six persons, including a 23-year-old New Yorker. In January 2003, the U.N. special rapporteur for extrajudicial killing concluded the Yemen attack constituted “a clear case of extrajudicial killing.”

The Obama administration has tried to argue that while a “global war on terror” does not exist, an armed conflict against Al Qaeda, the Taliban and associated forces does. However, this is simply a different name for the same unlawful practice.

On the U.S. targeted killing of American citizen Anwar al-Aulaqi in 2011, Professor O’Connell stated:

For another intentional killing in Yemen of a U.S. citizen in September 2011, the Obama administration tried to argue a drone attack was permitted under the international law of self-defense. That law has five stringent conditions. None were met in the case of the killing of Anwar Al-Awlaki.

Source: Mary Ellen O’Connell, Drones are Illegal Beyond the Battlefield, The New York Times, Apr. 24, 2015.

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Human Cost

Facts About the U.S. Drone Program Human Cost For over two decades, the US government has actively downplayed or denied the killing of civilians by unmanned aerial vehicles (UAVS). Euphemistic language invoking the “precision” of this modern weapon has been repeatedly deployed by state officials, and uncritically promulgated by the mainstream press. Take for instance … Continue reading Human Cost

Koh & Drones

Harold Koh on Drones On March 25, 2010, Harold Koh, then legal adviser of the U.S. Department of State, stated the following during a talk for the Annual Meeting of the American Society of International Law: In the same way, in all of our operations involving the use of force, including those in the armed … Continue reading Koh & Drones

Critics

Critiques of The U.S. Drone Program In 2010, the same year that Koh publicly defended the legality of the U.S. drone program before the American Society of International Law, the U.N. Special Rapporteur on extrajudicial, summary, or arbitrary executions, Philip Alston, outlined why the U.S. drone program violates applicable international humanitarian and human rights laws. … Continue reading Critics