John Brenan admits to drone attacks, discusses legality

John Brennan, the U.S’s top counterterrorism official, formally admitted that the United States engages in attacks using “drones”. Brennan argued that the drone programme is “legal”, “ethical” and “wise”. He said “President Obama has instructed us to be more open with the American people about … using remotely piloted aircraft.”

He defended the programme  because it targets only those individuals who are known to pose a “significant threat” to the United States and constitute a “legitimate … lawful target”. But he refused to elaborate on how that process of scrutiny takes place. “How we identify an individual naturally involves intelligence sources and methods, which I will not discuss.

He noted that while al-Qaeda’s core has been near decimated in Pakistan, affiliates and adherents in Yemen and Somalia continue to grow in number and strength.

As for the legality, Brenan noted:

Earlier this year, 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-Qa’ida—including U.S. citizens—and to do so using “technologically advanced weapons.”

In addition, Jeh Johnson, the general counsel at the Department of Defense, has addressed the legal basis for our military efforts against al-Qa’ida.  Stephen Preston, the general counsel at the CIA, has discussed how the Agency operates under U.S. law.   These speeches build on a lecture two years ago by Harold Koh, the State Department Legal Adviser, who noted 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.”

He then went on to elaborate:

First, these targeted strikes are legal.  Attorney General Holder, Harold Koh and Jeh Johnson have all addressed this question at length.  To briefly recap, as a matter of domestic law, the Constitution empowers the President to protect the nation from any imminent threat of attack.  The Authorization for Use of Military Force—the AUMF—passed by Congress after the September 11th attacks authorizes the president “to use all necessary and appropriate force” against those nations, organizations and individuals responsible for 9/11.  There is nothing in the AUMF that restricts the use of military force against al-Qa’ida to Afghanistan.

As a matter of international law, the United States is in an armed conflict with al-Qa’ida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense.  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.

Second, targeted strikes are ethical.  Without question, the ability to target a specific individual—from hundreds or thousands of miles away—raises profound questions.  Here, I think it’s useful to consider such strikes against the basic principles of the law of war that govern the use of force.

Targeted strikes conform to the principle of necessity—the requirement that the target have definite military value.  In this armed conflict, individuals who are part of al-Qa’ida or its associated forces are legitimate military targets.  We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II.

Targeted strikes conform to the principle of distinction—the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted.  With the unprecedented ability of remotely piloted aircraft to precisely target a military objective while minimizing collateral damage, one could argue that never before has there been a weapon that allows us to distinguish more effectively between an al-Qa’ida terrorist and innocent civilians.

Targeted strikes conform to the principle of proportionality—the notion that the anticipated collateral damage of an action cannot be excessive in relation to the anticipated military advantage.  By targeting an individual terrorist or small numbers of terrorists with ordnance that can be adapted to avoid harming others in the immediate vicinity, it is hard to imagine a tool that can better minimize the risk to civilians than remotely piloted aircraft.

For the same reason, targeted strikes conform to the principle of humanity which requires us to use weapons that will not inflict unnecessary suffering.  For all these reasons, I suggest to you that these targeted strikes against al-Qa’ida terrorists are indeed ethical and just.

Moreover,

Targeted strikes are wise.  Remotely piloted aircraft in particular can be a wise choice because of geography, with their ability to fly hundreds of miles over the most treacherous terrain, strike their targets with astonishing precision, and then return to base.  They can be a wise choice because of time, when windows of opportunity can close quickly and there may be just minutes to act.

They can be a wise choice because they dramatically reduce the danger to U.S. personnel, even eliminating the danger altogether.  Yet they are also a wise choice because they dramatically reduce the danger to innocent civilians, especially considered against massive ordinance that can cause injury and death far beyond its intended target.

In addition, compared against other options, a pilot operating this aircraft remotely —with the benefit of technology and with the safety of distance—might actually have a clearer picture of the target and its surroundings, including the presence of innocent civilians.  It’s this surgical precision—the ability, with laser-like focus, to eliminate the cancerous tumor called an al-Qa’ida terrorist while limiting damage to the tissue around it—that makes this counterterrorism tool so essential.

There’s another reason that targeted strikes can be a wise choice—the strategic consequences that inevitably come with the use of force.  As we’ve seen, deploying large armies abroad won’t always be our best offense.

He finished his talk as follows:

This leads me to the final point I want to discuss today — the rigorous standards and process of review to which we hold ourselves today when considering and authorizing strikes against a specific member of al-Qa’ida outside the “hot” battlefield of Afghanistan.

First and foremost, the individual must be a legitimate target under the law.  Earlier, I described how the use of force against members of al-Qa’ida is authorized under both international and U.S. law, including both the inherent right of national self-defense and the 2001 Authorization for Use of Military Force, which courts have held extends to those who are part of al-Qa’ida, the Taliban, and associated forces.  If, after a legal review, we determine that the individual is not a lawful target, end of discussion.  We are a nation of laws, and we will always act within the bounds of the law.

I have heard it suggested that the Obama Administration somehow prefers killing al-Qa’ida members rather than capturing them.

The reality, however, is that since 2001 such unilateral captures by U.S. forces outside of “hot” battlefields, like Afghanistan, have been exceedingly rare.  This is due in part to the fact that in many parts of the world our counterterrorism partners have been able to capture or kill dangerous individuals themselves.

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.

Full speech here:

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