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, international lawyer and professor of law Mary Ellen O’Connell argued in a New York Times op-ed against the legality of drones outside of circumscribed 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 arguments 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.