The Legality of drones

A graphic from the Washington Post that Koh and Brenan on the position of the US-led drone strikes with respect to international and domestic law.

In a separate story, the Washington Post looks at the secrecy that surrounds drone warfare, and discusses the complex legal issues that underwrite it.

A web of legal authorities

The drone program is actually three separate initiatives that operate under a complicated web of overlapping legal authorities and approval mechanisms.

The least controversial is the military’s relatively public use of armed drones in combat in Afghanistan and Iraq, and more recently in Libya. The other two programs — the CIA’s use of drones in Pakistan, and counterterrorism operations by the CIA and the military in Yemen, Somalia and conceivably beyond — are the secret parts.

Under domestic law, the administration considers all three to be covered by the Authorization for Use of Military Force that Congress passed days after the Sept. 11, 2001, attacks. In two key sentences that have no expiration date, the AUMF gives the president sole power to use “all necessary and appropriate force” against nations, groups or persons who committed or aided the attacks, and to prevent future attacks.

The CIA has separate legal authority to conduct counterterrorism operations under a secret presidential order, or finding, first signed by President Ronald Reagan more than two decades ago. In 1998, President Bill Clinton signed an amendment, called a Memorandum of Notification, overriding a long-standing ban on CIA assassinations overseas and allowing “lethal” counterterrorism actions against a short list of named targets, including Osama bin Laden and his top lieutenants. Killing was approved only if capture was not deemed “feasible.”

A week after the Sept. 11 attacks, the Bush administration amended the finding again, dropping the list of named targets and the caveat on “feasible” capture.

“All of that conditional language was not included,” said a former Bush administration official involved in those decisions. “This was straight-out legal authority. . . . By design, it was written as broadly as possible.”

There was “no parsing of how do you kill them,” and no mention of drones or any other weapon, the former official said. For administration lawyers, he said, the only question was “how far could you take it, how far inside or down the structure of al-Qaeda could you go to conduct lethal actions?”The authorization did not address targets’ nationality or set geographical boundaries, and there was “nothing about the permission of the government” of any country where a terrorist might be found, the former official said.

Keeping Bush’s drone policy

In 2004, the CIA began attacks against al-Qaeda and Taliban sanctuaries in Pakistan. Unlike in Yemen, the CIA had authority there to fire at will, without prior authorization outside the agency, as long as targets were within the limits of geographic “boxes” in the tribal regions that abut Afghanistan’s eastern border.

The boxes had been agreed to by Pakistan’s then-president, Gen. Pervez Musharraf, who also insisted that he approve each strike in advance. By mid-2008, Musharraf had turned down nearly as many strikes as he had approved, and the administration believed that some insurgent leaders had been warned by the Pakistanis of their presence on the CIA target list.

According to tallies compiled by the Washington-based New America Foundation, more than half of the 44 attacks the Bush administration launched in Pakistan over a four-year period took place in the last four months of 2008, after an elected government headed by President Asif Ali Zardari replaced Musharraf.

Zardari, who voiced loud public disapproval of the attacks, was amenable in private. He received “no prior notice,” Zardari said in a Washington Post interview in November of that year. He said he gave the Americans “the benefit of the doubt” that they were targeting people who deserved to be killed and making every effort to avoid civilians.

Within days of Obama’s inauguration, the new White House legal team began examining all existing covert authorizations.

The new president had told the American Society of International law during his 2008 campaign that Bush had “put forward a false choice between adhering to domestic and international law and providing security to the American people. These legal regimes exist precisely to keep us safe, and I will make clear that my administration has faith in the rule of law.”

No new legal opinions were sought, said a former Obama official involved in the process, and there was no challenge to the CIA’s unilateral authority to choose targets and launch strikes in Pakistan. “Nothing was changed in terms of the review process,” the former Obama official said. Outside Pakistan, all strikes required White House approval, either by the CIA or the military’s JSOC, which has its own list of targets and a separate authorization.White House and State Department lawyers who reviewed Bush’s international legal definition of an “armed conflict” against global terrorism narrowed the scope to apply it only to al-Qaeda and its associates who had actually attacked the United States or were planning attacks, and they accepted the Bush doctrine of the right to self-defense.

The United Nations Charter includes a right of response to an armed attack, and there is a generally recognized right to fend off an “imminent” assault, derived from an 1837 lawsuit over a skirmish between U.S. and British forces along the Canadian border. Some experts in international law have questioned that interpretation, saying that most of the drone strikes have nothing to do with defense against a previous assault or an “imminent” attack.

In Pakistan and Yemen, Obama lawyers determined, the governments in power had agreed to the attacks. In Somalia, the government controlled the capital and little else; there was no one to ask.

Challenging the secrecy

Some critics of the use of drones are discomfited by the relatively risk-free, long-distance killing via video screen and joystick. But the question of whether such killings are legal “has little to do with the choice of the weapon,” Tom Malinowski, Washington director of Human Rights Watch, said this year in one of several think tank conferences where the subject was debated. “The question is about who can be killed, whether using this weapon or any other.” In a letter to Obama Monday, Human Rights Watch called the administration’s claims of compliance with international law “unsupported” and “wholly inadequate.”

Civil and human rights groups have been unsuccessful in persuading U.S. courts to force the administration to reveal details of the program. In September, a federal judge found for the CIA in an American Civil Liberties Union lawsuit alleging that the agency’s refusal to release information about drone killings was illegal.

Under the Freedom of Information Act, the ACLU asked for documents related to “the legal basis in domestic, foreign, and international law for the use of drones to conduct targeted killings,” as well as information about target selection, the number of people killed, civilian casualties, and “geographic or territorial limits” to the program.

When the CIA replied that even the “fact of the existence or nonexistence” of such a program was classified, the ACLU sued, saying that then-CIA Director Leon E. Panetta had made the classification argument moot with repeated public comments about the killings to the media and Congress.

But while Panetta spoke of successful “hits” and “strikes” against terrorist targets in Pakistan, U.S. District Judge Rosemary M. Coll­yer found that Panetta “never acknowledged the CIA’s involvement in such [a] program.”

When Koh, the State Department counsel, was finally cleared to give his speech last year, he told the American Society of International Law, without elaboration, that it was “the considered view of this administration . . . 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.”

Two months later, in May 2010, a U.N. report found that blanket statement wanting, at best, and noted that if safeguards are in place, the administration has not told anyone what they are.

“They have refused to disclose who has been killed, for what reason, and with what collateral consequences,” wrote U.N. Special Rapporteur Philip Alston, a New York University law professor. “The result has been a vaguely defined license to kill and the creation of a major accountability vacuum.”

Since Koh’s speech, the administration has said little on the issue. White House counterterrorism adviser John O. Brennan acknowledged in September that “some of our closest allies and partners take a different view” of the administration’s assertion of the legal right to strike anyone, at any time and any place, who it secretly determines is associated with al-Qaeda.

And “because we are engaged in an armed conflict with al-Qaeda,” Brennan said, “the United States takes the legal position that — in accordance with international law — we have the authority to take action against al-Qaeda and its associated forces without doing a separate self-defense analysis each time.”

Administration officials say they have moved quickly to stop abuses. When civilian casualties in Pakistan spiked during the first half of 2010, a year in which drone strikes there averaged one nearly every three days, Obama and Brennan “demanded that they keep tightening the procedures, so that if there were any doubt, they wouldn’t take the shot,” an administration official said. “There were flaws, and they fixed them.”

The White House intervened again this year to tighten the rules after a particularly destructive March 17 strike that Pakistani officials — and international organizations — said had killed two dozen or more civilians. There was no U.S. claim of a major target, although unnamed administration officials said that 20 unnamed “militants” were dead.

Cameron Munter, the U.S. ambassador to Pakistan, complained bitterly to Washington that the program was out of control, said a second former Obama administration official. As “chief of mission,” it was Cameron’s understanding that he was to be informed of attacks in advance and that he could veto them.

With no independent outside access to Pakistan’s tribal zones, the disconnect is near-absolute between those who charge the administration with unjustified killings and those in the administration who deny the allegations. On Dec. 2, a Pakistani lawyer backed by the British-based charity Reprieve notified Munter of plans to file murder charges in the deaths of Tariq Aziz, 16, and his cousin Waheed Rehman, 12, allegedly killed in an Oct. 31 drone strike on a vehicle in their home region of North Waziristan. According to Reprieve, its representatives had met with Tariq just days earlier in Islamabad to give him a camera to document drone deaths.

A U.S. official familiar with counterterrorism operations in Pakistan responded that there were “major problems with the charges from Reprieve.”

“It’s absolutely possible to tell the difference between an adult male and a 12-year-old child in these sorts of actions,” said the official, who was authorized to comment on the condition of anonymity. “On that day no child was killed; in fact, the adult males were supporting al-Qaeda’s facilitation network and their vehicle was following a pattern of activity used by al-Qaeda facilitators.”

Last summer, Brennan said in a statement that “there hasn’t been a single collateral death because of the exceptional proficiency [and] precision of the capabilities we’ve been able to develop.” When human rights organizations sharply disputed that assertion, Brennan clarified it to say there were no civilian deaths that the administration had confirmed.

The cost of secrecy can be high, warned John B. Bellinger III, who argued for more legal precision and disclosure when he was counsel to both the National Security Council and the State Department under George W. Bush.

“If we don’t explain our legal rationale and the limitations we apply now,” Bellinger said, “then we’re opening the door to other countries to do the same sort of thing.”

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