July 1, 2012  

Mixed messages on drone strikes

U.S. justifications for targeted killings are neither coherent nor sustainable

Over the past two years, prominent officials in the Obama administration — most of them high-ranking lawyers — have offered public defenses and rationales for the so-called “targeted killing” program carried out predominantly with unmanned aerial vehicles, or drones.

These statements are undoubtedly a good thing, since the best way to prevent outside critiques of U.S. policy from becoming accepted wisdom is to challenge them vociferously and explain our own reasoning clearly. This task became particularly urgent once the United Nations “special rapporteur on extrajudicial, summary or arbitrary executions” delivered his 2010 report to the Human Rights Council questioning the legality of all U.S. drone strikes outside of “hot” conflict zones — that is, in locations other than Afghanistan and (until recently) Iraq.

Inasmuch as the current targeted killing program is a continuation (albeit vastly expanded) of the previous administration’s policies, and will surely be pursued in some form by future ones, it is vital that the U.S. government put forward a coherent and sustainable theory of what we are doing and why. So far, the official explanations fall short of the mark.

Public Statements

As the Obama administration has taken pains to point out, U.S. actions overseas must comply with “all applicable law,” meaning both domestic and international legal norms. International law is composed largely of the customs observed by states, and such customary international law is informed primarily by a combination of state practice (what nations do) and opinio juris (why nations do it). That is, to establish a desirable rule as customary international law — or to prevent such establishment of an undesirable rule — states must not only act consistently in accordance with or in defiance of that rule but also demonstrate that they are acting that way as a matter of legal principle.

Therefore, the recent speeches by top government officials are significant not just as a matter of public accountability to the American people in whose name targeted killings are being ordered but also as the preliminary foundations of an emerging legal doctrine establishing both the permissibility and limits of a tenable targeted killing program using drone technology. The good news is that the administration now clearly understands this, perhaps in part due to the persistence of certain gadflies in academia and think tanks who have been insisting over the past several years that the government discharge its duty to publicly recognize and defend what it already believes it has the legal right to do.

Thus, this spring the president’s counterterrorism adviser, John Brennan, acknowledged that as “the first nation to regularly conduct strikes using remotely piloted aircraft in an armed conflict,” the U.S. has a special obligation to set an example of the lawful and ethical prosecution of such a program. Brennan attested to the administration’s mindfulness that it is “establishing precedents that other nations may follow, and not all of them will be nations that share our interests or the premium we put on protecting life, including innocent civilians.” In other words, China is watching closely, and everything we do and say will most certainly be used against us when the Chinese inevitably launch a full-scale drone strike program of their own and we contest its legality.

The administration’s speeches can thereby be read as an emerging body of opinio juris establishing the legal thinking behind recent U.S. counterterrorism practices, as well as a hedge against future bad actors who seek to justify their practices as consistent with American precedent. Granted, these statements might not be as forthcoming as some observers would like, given the White House’s self-assigned goal of unprecedented transparency and its decision to release the legal opinions on interrogation practices rendered by the previous administration. What inquiring minds really want are the Justice Department’s memos on targeted killing, most especially the one justifying last year’s drone strike on American-born propagandist Anwar al-Awlaki. But in an ironic twist that is perhaps unsurprising to political veterans, the current administration is considerably more circumspect about disclosing its own internal legal communications than it was with respect to its predecessor’s.

Adding It Up

Nonetheless, we can only work with what we have, and the official statements to date at the very least offer a broad framework shedding light on some of the major U.S. positions in this area. First, the U.S. government maintains that the nation is at war, in an armed conflict with al-Qaida, the Taliban and all their associated forces. In terms of domestic law, operations against these enemies were sanctioned by Congress via the Authorization for the Use of Military Force, passed one week after the terrorist attacks of Sept. 11, 2001, and legislatively reaffirmed a decade later.

The AUMF does not specify any geographical limitations, but instead authorizes the president to “use all necessary and appropriate force” against broadly specified actors linked in some fashion to 9/11 “in order to prevent any future acts of international terrorism” against us by those parties. The president also retains his constitutionally derived powers as commander in chief “to protect the nation from any imminent threat of attack,” but the AUMF serves as the bedrock of legal authority for military activities in this particular conflict.

Second, in terms of international law — and more specifically, within that subset of international law governing the use of force (known as jus ad bellum) — the U.S. asserts that we are engaged in lawful actions pursuant to the inherent right of self-defense recognized by Article 51 of the U.N. Charter. More to the point, we are relying on a corollary of the self-defense principle, which holds that a state (in this case, the U.S.) may lawfully use force within the sovereign territory of another state (Pakistan and elsewhere) to defend itself against non-state actors (al-Qaida and its affiliates) when that host state is “unwilling or unable” to take effective action to stem the tide of violence emanating from within its borders.

According to the U.S. argument, such defensive operations require neither the consent of the state that is harboring (wittingly or unwittingly) the violent nonstate actors — although such consent is certainly preferable, as may be the case in Yemen and, at least in some cases, in Pakistan — nor an authorization for the use of force from the U.N. Nor, for that matter, must we be at war with the state whose territory we are entering, because our fight against al-Qaida legitimately extends to wherever members of that group or its partners may be tracked down. This “unwilling or unable” test is based upon the aforementioned notion of customary international law, but is certainly neither uncontroversial nor uncontrovertibly settled. It is distinct from the so-called “Bush doctrine” of states being “either with us or against us,” because it provides a legal tool for us to bypass the territorial sovereignty of a nation that is either complicit or hapless with respect to combating terrorism, without requiring us to make a definitive statement as to the nature of our official relationship with that country’s government.

Third, the U.S. position is that our targeted killing program is designed to comply with the rules governing conduct in war, otherwise known as jus in bello or the law of armed conflict (LOAC). As State Department legal adviser Harold Koh has stated, “the rules that govern targeting do not turn on the type of weapon system used” (unless specifically designed to inflict unnecessary suffering), but rather how those weapons are employed. In this sense, the use of drones as a weapons platform is irrelevant — targeting law is the same regardless of whether the ordnance is delivered via a sniper, high-altitude bomber, sea-based launch mechanism or pilotless aircraft. If anything, officials claim, drones enable us to be super-vigilant in our targeting practices by affording unparalleled surveillance capabilities and removing the elements of risk and fear on the part of the trigger-puller.

Moreover, the U.S. says, targeted killing does not constitute “assassination,” which is prohibited under domestic law by Executive Order 12333 — promulgated first by President Ford and reissued under President Reagan — and in international law via the ban on treachery under the Annex to The Hague Convention IV of 1907. According to Defense Department General Counsel Jeh Johnson, “the pejorative term ‘assassination’… should be rejected in this context,” because we are in an armed conflict and thereby empowered to exercise lethal force against valid military objectives. The fact that we are facing an unconventional enemy, Attorney General Eric Holder has said, does not alter our ability to take decisive action.

Yet the question of who constitutes such a valid objective implicates another hotly contested issue in itself. Namely, when can a civilian who is not part of a state’s armed forces be lawfully targeted based upon actions that constitute taking a “direct part in hostilities”? The U.S. government has chosen largely to elude this controversy in its public statements, but it would help, again as a matter of opinio juris, for us to explain the standards we use when applying that categorization. This is especially the case because in 2009, the International Committee for the Red Cross published an “Interpretive Guidance” document that is starkly at odds with the way American practitioners of LOAC analyze targeting decisions.

The historical analogy invoked most often by U.S. officials to rebut the “assassination” charge is our downing of the plane carrying Japan’s most prominent naval flag officer in 1943, based upon intercepted intelligence as to his flight itinerary. This analogy is not particularly helpful in terms of the “direct part in hostilities”debate, because Adm. Isoroku Yamamoto was clearly a member of a national military. A more useful starting point, at least in terms of exploring the mechanism by which civilians render themselves military objectives, might be our early 19th-century incursion into Libya to track down Barbary pirates.

Finally, the administration emphasizes its “rigorous standards and process of review … when considering and authorizing strikes” outside of “hot” war zones. The State Department’s Koh has insinuated that this robust vetting process is integral to validating our legitimate self-defense claim in each and every targeted killing operation. This is a somewhat disconcerting line of argument, because it is seemingly at odds with the government’s overall assertion that we are in an armed conflict with al-Qaida. Self-defense is a jus ad bellum principle; once we are at war, the appropriate legal standards for applying force are guided by jus in bello. Applying a self-defense analysis to each individual drone strike — as opposed to the time-honored LOAC principles of war fighters — sends mixed signals about whether we really believe we are in an armed conflict.

Given that the lawful imperative of U.S. self-defense in World War II was the unconditional surrender of the Axis powers, we would seem to be on firm ground today by strictly maintaining that our right of self-defense, as triggered by the terrorist attacks of 9/11, is geared toward the much narrower goal of degrading or eliminating al-Qaida’s capability to launch another deadly attack against the U.S. homeland. Within that framework, we are guided by LOAC in the conduct of hostilities. Indeed, the U.S. government clearly believes that drone warfare is particularly suited to the task of waging an armed conflict with limited goals, because the new technology enables to us to synergize the campaign’s means and ends as never before.

At least in the context of an American citizen such as al-Awlaki, the attorney general has stated that on top of traditional LOAC principles, the elaborate “kill list” procedure considers the imminence of the threat posed by the individual, as well as the feasibility of capture in lieu of deadly force. Such robust executive deliberation, Holder argues, satisfies the Fifth Amendment’s accordance of due process of law; this provides the context in which he famously said that “the Constitution guarantees due process, not judicial process.” The attorney general has taken considerable heat for this statement, in large part because an ultra-secretive executive war-making function is an odd tool with which to safeguard constitutional rights. From an armed conflict perspective, however, law professor Jack Goldsmith is surely correct in his estimation that the current U.S. system, as described in the administration’s speeches, “goes far beyond any process given to any target in any war in American history.”

Does It Hold Water?

Taken individually, each of these arguments is reasonable, accurate and perhaps even persuasive. Viewed as a whole, however, the U.S. position suffers from a degree of cognitive dissonance which results from our trying to please everyone at once instead of holding firm to basic, time-tested principles. In the end, this scattershot approach risks undermining our legal authority and — ironically — pleasing no one. The problem emanates from attempting to superimpose legal doctrines on top of one another rather than insisting on their own internal logic. The net effect is to make us appear hesitant about the wisdom and legality of our own actions, which merely emboldens those critics whom we can never hope to satisfy anyway — at least not without compromising our own security.

To see why it’s so crucial for us to speak boldly and plainly, it’s important to understand what entities such as the U.N. Human Rights Council and the Red Cross are really trying to do. At base, these noble organizations — reflective of the international human rights law community as a whole, with a decidedly continental European outlook — believe that “sporadic, low-intensity attacks” from nonstate actors “do not rise to the level of armed attack” that would enable us to invoke the right of self-defense as a basis for resorting to force. As the aforementioned U.N. report approvingly remarks, “the legality of a defensive response must be judged in light of each armed attack, rather than by considering occasional, although perhaps successive, armed attacks in the aggregate.”

In other words, the human rights community rejects our jus ad bellum argument that we are at war with al-Qaida wherever they may be. Moreover, these institutions deny that we are in an armed conflict at all — at least outside of “hot” war zones — both because al-Qaida is not cohesive enough and because the intensity and duration of the havoc it wreaks is insufficiently destructive. Thus, the applicable standard for applying force in each instance is not LOAC; jus in bello is out the window because there is no war. Rather, the peacetime model of human rights law prevails. This clearly is not a position that the U.S. can abide: first, because it eradicates any realistic deterrent for states to rein in terrorist attacks emanating from their territory; and second, because it effectively neuters our considerable national security apparatus as a counterterrorism asset. Simply put, it is an attempt to hem us in by wedding us to a police paradigm rather than a military one.

What To Do

This context illustrates precisely why the government has to stop straddling the fence and sending mixed messages about what we are doing. We must emphatically state that any complex vetting process undertaken by the president before targeting an individual terrorist is simply a matter of discretionary policy and grand strategy, not legal obligation. The bizarre “bureaucratic ritual” of White House “Terror Tuesday” meetings attended by high-level political advisers — as reported in a recent, much-publicized New York Times article — bears an unsettling resemblance to President Lyndon Johnson’s well-documented “Tuesday lunches” reviewing target lists for Vietnam. Although the conflicts and eras clearly differ, the U.S. must not repeat the mistakes of the Rolling Thunder campaign by allowing overly restrictive and centralized targeting rules to degrade the efficient and lawful application of our military might.

In this vein, when the attorney general invokes the due process clause of the Constitution in connection with fighting an avowed enemy belligerent — who just so happens to be American by birth — it can create considerable confusion. Constitutional due process should be extraneous to wartime targeting, for the sake of both meaningful due process and military effectiveness. As we have seen, such promises of due process through internal executive deliberations will not satisfy the American Civil Liberties Union, but they will send perplexing signals as to whether we are really at war. It makes no difference whether an enemy combatant is an American; what matters is his belligerency. An American national at Omaha Beach wearing a Nazi uniform and firing at our troops would have been just as valid a target as the German national beside him. As Johnson, the Pentagon’s general counsel, has said, “belligerents who also happen to be U.S. citizens do not enjoy immunity where noncitizen belligerents are valid military objectives.”

Moreover, it is crucial that senior officials stop making outlandish claims of “zero” civilian casualties. No advanced technological weapons system or exhaustive vetting process can guarantee perfection, and this is not what LOAC demands. The rules governing combatants in warfare were, quite literally, developed through hard-fought experience, and they reflect the accrued wisdom of warriors over centuries. The jus in bello principles of necessity and distinction, and the proportionality test that balances them, require armed forces to take reasonable precautions, while simultaneously recognizing the inevitability of innocent death in war. Laying out a “zero casualties” standard merely encourages our enemies to employ human shields, which is a lesson they already know all too well as it is.

The U.S. also needs to be very careful about saying that we only undertake lethal force when capture is not feasible and apply an “imminent threat” test to every application of violence. This oft-repeated assertion appears to be a reaction to politically motivated complaints that the current focus on targeted killing is a cynical maneuver designed to avoid the thorny detention issues of the previous administration. However, when the U.S. proclaims a capture-first, kill-second policy, we are feeding right into the hands of the international human rights law community. There is no obligation under LOAC to refrain from targeting the enemy, even if capture is a viable option. In fact, belligerents are lawful targets at all times, and only when they attempt to surrender must we hold fire and offer quarter. The obligation to calibrate force is a function of the law enforcement paradigm, which is precisely what certain international institutions want to force us to adopt. Police officers must arrest rather than kill, reserving deadly force as a last option in imminent defense of life. The same does not hold for soldiers.

Finally, some U.S. spokespeople continue to declare that targeted killings deliver “justice” to terrorists. This is patently untrue and counterproductive. “Justice” entails due process, which again is inapplicable to LOAC. The rules governing conduct in war stipulate that belligerents are subject to force because they employ force. This duality says nothing about their moral guilt or innocence. Our drone pilots and special operators are not judges dispensing transnational justice to outlaws. They are war fighters. Contrary to some political assertions, the raid on Osama bin Laden was not an act of justice for 9/11. It was a lawful and successful use of force in the context of an armed conflict.

The administration’s senior legal officials are to be lauded for their efforts to publicly explicate the justifications and reasoning behind the drone strike program. But in making our case to the world and setting precedents for the future, we must resist the temptation to be too clever by half. The U.S. will never placate everyone, so we are best off being clear about what we believe to be right. Namely: we are in an armed conflict with al-Qaida and its affiliates, authorized domestically by congressional authorization and internationally by the inherent right of self-defense. In that fight, we will apply and abide by LOAC, maintaining the highest professional standards, but making no promises of perfection or due process. The law of war demands no more and no less.

MAJ. CHARLES G. KELS is an attorney for the Department of Homeland Security and an individual mobilization augmentee with the U.S. Air Force Office of the Judge Advocate General. The opinions expressed in this article are those of the author and do not necessarily reflect those of the departments of Homeland Security, Air Force or Defense.