Greg Miller and Karen DeYoung of the Washington Post report on the White House’s examination of the legal basis of its global war on terror. For over a decade now, the administration has relied upon a 2001 piece of congressional legislation called the Authorization for Use of Military Force (AUMF), which targets al-Qaeda and its “associated forces”. Passed in the wake of 9/11, many now see it as outdated and unable to provide legal cover for strikes against those terrorists not directly linked to al-Qaeda. Instead, a new law is needed to target “next generation” Islamist fighters – especially those “offshoots” emerging across Africa.
The authorization law has already been expanded by federal courts beyond its original scope to apply to “associated forces” of al-Qaeda. But officials said legal advisers at the White House, the State Department, the Pentagon and intelligence agencies are now weighing whether the law can be stretched to cover what one former official called “associates of associates.”
The debate has been driven by the emergence of groups in North Africa and the Middle East that may embrace aspects of al-Qaeda’s agenda but have no meaningful ties to its crumbling leadership base in Pakistan. Among them are the al-Nusra Front in Syria and Ansar al-Sharia, which was linked to the September attack on a U.S. diplomatic post in Benghazi, Libya. They could be exposed to drone strikes and kill-or-capture missions involving U.S. troops.
What is particularly significant about the debate is how a new law would translate so-called emergency counterterrorism policies passed after 9/11 into a set of “permanent procedures” that would sustain an endless war against al-Qaeda, its affiliates, and possibly “affiliates of affiliates”. That is to say, the legal requirement for a new codification regime doesn’t signal the winding down of the old war (i.e. its end), but the zeal to codify a new war – one whose boundaries – geographic and temporal – are endless and murky.
The administration official cited Ansar al-Sharia as an example of the “conundrum” that counterterrorism officials face.
The group has little if any established connection to al-Qaeda’s leadership core in Pakistan. But intercepted communications during and after the attack in Benghazi indicated that some members have ties to al-Qaeda in the Islamic Maghreb, the terrorist network’s main associate in North Africa.
Other groups of concern include the al-Nusra Front, which is backed by al-Qaeda in Iraq and has used suicide bombings to emerge as a potent force in the Syrian civil war, and a splinter group in North Africa that carried out a deadly assault in January on a natural-gas complex in Algeria.
Even the elastic phrase “associated force”, which is often wheeled out for legal cover against al-Qaeda affiliates, is becoming “limiting”.
In a speech last year at Yale University, Jeh Johnson, who served as general counsel at the Defense Department during Obama’s first term, outlined the limits of the AUMF.
“An ‘associated force’ is not any terrorist group in the world that merely embraces the al-Qaeda ideology,” Johnson said. Instead, it has to be both “an organized, armed group that has entered the fight alongside al-Qaeda” and a “co-belligerent with al-Qaeda in hostilities against the United States or its coalition partners.”
The AUMF currently provides the legal basis for the U.S.’ global campaign of drone targeted killings in Pakistan, Yemen, and Somalia. Any changes to its already flexible remit would likely signal a permanent, borderless war for decades to come. The recent construction of a drone base in Niger (not to mention the mushrooming Camp Lemonnier base) may be evidence of just that.
For up-to-date information on legal issues and news relating to U.S. drone warfare, check out the following link. In addition to the text that folows, there are several important updates I’ve made to the legal issues surrounding drone strikes in Pakistan: see
- An act of self-defense? More on the legality of drone strikes in Pakistan,
- Is the U.S. drone campaign in Pakistan legal?,
- The Moral and Legal Case for Drones: An All-Too-Human Responsibility
International Humanitarian Law (IHL), also known as the Laws of War, is a relatively recent construction. The broad aim of IHL is to govern the relations between states, combatants, and civilians. Additionally, the Charter of the U.N. is responsible for adjudicating if a state is permitted to go to war. The Obama administration argues that its drone wars conform to the U.N. Charter as an act of “self-defense”.
The cornerstones of IHL are the Geneva Conventions and Hague Conventions. In 1899 and 1907 The Hague Conventions were established to regulate the conduct of warfare. The Geneva Conventions were established to prevent “total war”, that is, the targeting of “everyone”—both combatants and non-combatants.
The first Geneva Convention was signed by 16 countries in 1864 to protect the wounded. The Conventions were extended in 1906 and 1929 to protect prisoners of war. They were formally adopted in 1949, and included rules on the protection of civilians (especially in light of World War II). Further Geneva protocols were adopted in 1977 and 2005. According to the ICRC, “Parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Adequate precautions shall be taken in this regard before launching an attack”.
This ability to discriminate between targets is a major source of controversy in the drone wars. Moreover, contractors from private companies are a growing part in U.S. drone operations, and can be enrolled in the “kill chain”—putting them in clear risk of violating international laws of war. In 2010, an employee of SAIC was involved in the accidental deaths of 15 Afghans.
U.S. drones fall under the jurisdiction of two distinct legal bodies: the regular military, and the CIA, each of which have unique legal guidelines. On September 9, 2011, U.S. District Judge Rosemary Collyer ruled that the CIA is not legally required to inform the public about the use of drones in the killing of suspected terrorists. So much of the information on the CIA’s drone program is a result of speculations and leaks.
Prior to World War II, U.S. intelligence was spread across multiple state and military departments. This was transformed in 1941 by the creation of the nation’s first peacetime intelligence organization, the Office of Coordinator of Information. After the U.S. entered the war the office was split up, with covert activity handled by the Office of Strategic Services (OSS). The OSS ran guerrilla and psychological campaigns across Europe and Asia and was staffed by 13,000 people at its peak. The OSS was the precursor to the CIA, which was later created by President Truman’s National Security Act of 1947. The same act established the National Security Council (NSC), whose first policy document sanctioned covert action against the Italian Communist Party.
Within the CIA, the division responsible for covert operations is the National Clandestine Service (NCS), formerly the Directorate of Operations. Within the NCS, there is the Special Activities Division (SAD), which in turn houses the Special Operations Group (SOG), is the unit most associated with covert paramilitary missions. These teams have been involved in a long list of black-ops across the planet, carried out under both Republican and Democratic administrations. SAD/SOG often works in tandem with JSOC.
There has been a slow drift towards legalizing and normalizing state-sponsored assassinations. The CIA is now closely involved in “kinetic operations” with Special Forces in the hunt for al-Qaeda affiliates, in spite of 9/11 recommendations. According to the Washington Post, the CIA’s Counterterrorism Center (part of the National Clandestine Service, formerly the Directorate of Operations) employs about 2,000 staff, or 10 percent of the CIA’s entire workforce. Even the agency’s analytic branch, which traditionally existed to provide insights to policymakers, has been enlisted in the drone wars: about 20 percent of CIA analysts are now “targeters” scanning data for individuals to arrest or place in the crosshairs of a drone. “We’re seeing the CIA turn into more of a paramilitary organization without the oversight and accountability that we traditionally expect of the military,” said Hina Shamsi, the director of the National Security Project of the American Civil Liberties Union.
The CIA’s Targeted Killings
The history of targeted killing is riddled with errors. In 1986 the Reagan Administration sought to strike back at Libyan leader Muammar Qaddafi for his suspected role in the deadly bombing of a German disco. The U.S. launched an air strike at his household. The bombs missed, but did kill his young daughter. In another example of retaliation missing its target, President Clinton launched seventy-five Tomahawk cruise missiles at a location in Afghanistan where bin Laden was expected. They missed the al-Qaeda leader, but did kill some twenty Pakistani militants.
The CIA’s official legal authority to conduct covert operations stems from the powerful precedent of Executive Order 12333, signed by Reagan in 1981, to “Conduct counterintelligence activities outside the United States” (1.8.C). However, the same act (2.11) states that “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination”.
This ban on assassination was originally penned in Executive Order 11905, signed by President Gerald Ford in 1976, which stated “No employee of the United States Government shall engage in, or conspire to engage in, political assassination” (this was a reaction to the public disclosure that the U.S. government had ordered hits on Castro and political leaders in Africa in the 1960s and 1970s). This ban on assassinations was reaffirmed by President Jimmy Carter in Executive Order 12036, which he signed in 1978.
The long-standing ban on U.S. assassinations was relaxed by President Clinton in a 1998 “Memorandum of Notification” (MON) that allowed lethal force against bin Laden and his lieutenants in Afghanistan. There remains some confusion as to the actual wording and prescription of this MON.
Indeed, prior to September 11, 2001, drone strikes were more or less completely off the table. “The C.I.A., which had been chastened by past assassination scandals, refused to deploy the Predator for anything other than surveillance.”Even the U.S. ambassador to Israel denounced its program of targeted killings against Palestinian terrorists, saying: “The United States government is very clearly on record as against targeted assassinations.… They are extrajudicial killings and we do not support that.”
But then everything changed after the attacks on the Twin Towers. The CIA was authorized to take the “gloves off”, in the infamous words of ex-CTC director, Cofer Black.
President Bush signed a directive immediately after 9/11 that created a secret list of High Value Targets (HVTs) that the CIA is authorized to kill without further Presidential approval each time the agency conducts an operation. According to the Washington Post, “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”. The same broad-brush finding also enabled “disappearances” and the infamous network of global prisons and extraordinary rendition. Bush maintained the ban on assassinations, believing al-Qaeda to be a legitimate military target (and therefore “fair game”). John Rizzo, the former acting General Counsel of the CIA, authorized the MON. He said it allowed activities that were “unprecedented in my 25 years of experience at CIA”. The retired legal chief added, “Frankly, the finding was so aggressive and comprehensive that honestly there wasn’t much more that could have been added.”
Today, the CIA’s CTC still produces a list of targets (around a few dozen) that are reviewed every 6 months, and signed by the CIA’s general counsel. The general counsel then liaises with the White House counsel. The rules require the National Security Council to be notified if one of the targets is a U.S. citizen—as with Anwar al-Awlaki. On September 30, 2011, the U.S.-born Anwar al-Awlaki was killed in an apparent drone strike in Yemen. The ACLU responded that:
“The targeted killing program violates both U.S. and international law. As we’ve seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts. The government’s authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific and imminent. It is a mistake to invest the President – any President – with the unreviewable power to kill any American whom he deems to present a threat to the country”.
In a Newsweek interview given in February 2011, Rizzo gave an on the record account of CIA practices involving drone strikes. “It’s basically a hit list,” he said, adding, “The Predator is the weapon of choice, but it could also be someone putting a bullet in your head.” There are multiple lawyers in the CIA’s counterterrorism center in Langley, Virginia, that inhabit the seventh floor, the “power floor”, adjacent to the Director’s office. These lawyers produce the “five-page dossier” that covers the justification for an individual to be targeted.
In 2008 former CIA Director Michael Hayden successfully lobbied Bush to relax drone targeting constraints even further. No longer was a “named” target on a “kill list” a legal prerequisite to attack. Instead, the CIA could target individuals based on their “pattern of life” or daily behaviour. This is called a “signature strike”, and it uses the same legal justification as the MON signed by Bush immediately after 9/11, and then re-signed by Obama in 2009. According to the Rolling Stone, the principal architect of the CIA’s drone campaign is “the brainchild of the CIA veteran who has run the agency’s drone program for the past six years, a chain-smoking convert to Islam who goes by the code name “Roger.”
Under international laws of war, a targeted killing is only lawful at the time of the strike if the target either “directly participating in hostilities” or performing a “continuous combat function.” But the ICRC notes that the distinction between direct and indirect participation, and therefore, civilian and combatant is sometimes difficult to distinguish. This ambiguity between “civilian” and “combatant” is nowhere more apparent than in the use of signature strikes by the CIA. Unlike traditional targeted killings where a known individual is assassinated, a signature strike targets an individual’s behaviour or their “pattern of life”.
A report in Foreign Policy in Focus similarly looks at the blurring distinctions between civilian and combatant in America’s drone wars. Article 48, the ‘Basic Rule’ of Part IV of the 1977 Geneva Conventions states that “In order to ensure respect for and protection of civilian populations and civilian objects, the Parties to the conflict shall at all times distinguish between civilian populations and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” If civilians do partake in hostilities they lose their protected status: in effect they become combatants. The relevance of this to drone warfare is that civilian CIA operators that assassinate America’s enemies could, in effect, lose their protection under the Conventions–and render other US citizens vulnerable, especially against a backdrop of an ever-expanding drone landscape.
Signature strikes in Pakistan’s tribal areas have recently expanded to include Yemen-based militants.
Broader Legal Arguments Made by the U.S.
Even if the exact details of the drone program are classified, the White House frequently appeals to broader legal arguments to justify the program of targeted killings, such as the 2001 Congressional Authorization for the Use of Military Force (AUMF). This document states:
“That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons”.
The Obama administration has also spelled out its adherence to the ‘inherent right to self defense’ under Article 51 of the UN Charter. According to the Washington Post:
“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”.
On April 25, 2010 in a speech to the American Society of International Law, State Department Legal adviser, Harold Koh stated that:
“It is 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… 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”.
On September 16, 2011, in a speech at Harvard Law School, John Brenan, Assistant to the President for Homeland Security and Counter-terrorism, stated:
“Our ongoing armed conflict with al-Qaeda stems from our right – recognized under international law – to self defense. … Because we are engaged in an armed conflict with al-Qaeda, 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 … we reserve the right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves”.
In March 2012, U.S. Attorney General Eric Holder went on record to discuss the CIA’s program against al-Qaeda and its affiliates. He said that “The president may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a U.S. citizen”, adding “Our legal authority is not limited to the battlefields in Afghanistan.” Holder said the legal authorization Congress passed a week after the attacks of Sept. 11, 2001, stretches to cover military action there. He went on to state that the administration acts after considering whether it has “the consent of the nation involved or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.” Holder argued that a targeted strike would be lawful only if the administration concluded that the “individual poses an imminent threat of violent attack against the United States” and that “capture is not feasible.” An “imminent threat,” Holder explained, did not necessarily require the identification of a “precise time, place, and manner” of such an attack.
After instructions from President Obama to be more “open” to the American people on the use of remotely piloted aircraft, on April 30, 2012, John Brenanpublically discussed the drone program and asserted the Obama administration’s right to kill. Brennan argued that the drone programme is “legal”, “ethical” and “wise”, and re-iterated previous justifications based on the AUMF and the inherent right to self-defense, adding:
“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”.
There were scant details given on how the attacks are legal, or how targets are selected. He instead asserted that the targeted strikes conform to the principle of “necessity” (the target has definite military value), the principle of “distinction” (civilians are protected from being intentionality targeted), and the principle of “proportionality” (collateral damage is kept to a minimum). In his words:
“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”.
“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”.
Mirza Shahzad Akbar has filed legal challenges against the CIA drone attacks. In 2011, Reprieve, a U.K-based human rights organization, sought the arrest of former CIA General Counsel, John Rizzo, following claims he signed off on the deaths of hundreds of people. This includes the well-publicized death of a young boy called Tariq Khan. On November, 2011, the 16-year-old attended a meeting in Islamabad at considerable personal risk to himself. It was set up so that Pashtuns from the tribal areas could meet with westerners, including Clive Stafford Smith, of Reprieve, and share their stories about drones. “Four days later the 16-year-old was dead – killed by one of the drones he was protesting against”. He was decapitated alongside his cousin.
The Idea of Contingent Sovereignty
Much of the controversy surrounding America’s drone wars is centered on the persistent violation of national sovereignty—whether in Libya, Pakistan, Yemen, Somalia, Iran, or wherever. In each case, the “territorial integrity” of that nation has in some way been violated—usually through aerial intervention.
For example, there was the widely discussed case of Predator drones used to aid rebels in the Libyan uprising of 2011. These military operations took place without the War Powers Resolution of 1973; to the chagrin of many Constitutionalists in the U.S. The reason given by the Obama administration was that because no U.S. troops were directly involved in the war, it wasn’t really a war. Harold Koh, Legal Adviser of the State Department, said: “We are acting lawfully…We are not saying the War Powers Resolution is unconstitutional or should be scrapped or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”
This interventionism is part of a wider shift in the definition of sovereignty as a prime facie “right” to a “responsibility” based on a social contract. If a nation state can no longer exercise control within its borders, outside intervention may be permitted—if not outright encouraged. According Robin Phillips, it is the “Responsibility to Protect” that infuses the drone wars with their ideological legitimacy.
In 2004 George Soros outlined “The People’s Sovereignty”. In it, he opposes the traditional, 1648 Treaty of Westphalia definition of national sovereignty, and argued that “true sovereignty belongs to the people, who in turn delegate it to their governments. If governments abuse the authority entrusted to them and citizens have no opportunity to correct such abuses, outside interference is justified”.
Soros’ view is inherited from the “social contract” theory of 17th Century thinkers such as Hobbes and Locke, and popularized by the 18th Century revolutionary, Jean-Jacques Rousseau. In a nutshell, for authority to be legitimate, the people must consent: a powerful idea in the monarchical era of 18th Century Europe.
The United Nations’ Security Council and General Assembly formerly accepted Responsibility to Protect (P2P) at the 2005 World Summit. The primary purpose of the nation-state was defined as protecting civilians, rather than ruling over them. And those rulers that fail to protect their people are legitimate targets for outside intervention.
More specific Legal analysis
The September 2012 report called ‘Living Under Drones‘ by Stanford Law School and NYU School of Law devotes a chapter to exploring whether or not the CIA’s program of targeted killings in the tribal areas of Pakistan is legal. Below is a summary of some of the key points that arise from their analysis.
The legal issues the report tackles are as follows:
1. Whether the use of ‘force’ in Pakistan violates Pakistan’s sovereignty in contravention of the UN Charter (jus ad bellum ‘right to war’ – the law concerning the recourse to force). At stake is whether or not Pakistan consents, and whether or not the U.S. is lawfully acting in self-defense.
2. How individuals are lawfully targeted, and how whether this conduct adheres to international human rights law (IHRL) or international humanitarian law (IHL) (i.e jus in bello). The difference between the two bodies of law is that the latter covers wartime, whereas IHRL is meant to regulate the relationship between government and society at all times [see International Committee of the Red Cross].
3. Whether or not the U.S. operates transparently.
4. Whether current drone policy violates U.S. domestic law.
1. Does the U.S. use of force in Pakistan violate Pakistan’s sovereignty?
Background. Article 2(4) of the U.N. Charter prohibits the use of force by one state against another. There are two exceptions – (1) when force is carried out with consent of the host state; (2) when the use of force is an act of self-defense in response to an armed attack or an imminent threat, and where the host state is unwilling or unable to take appropriate action.
Analysis. (1) Pakistan does not consent to the attacks. While ‘revelations’ in WikiLeaks seemingly showed the ‘duplicity’ of the Pakistani government, repeated public statements by top Pakistani officials, which state unequivocally that the strikes ‘violate the country’s sovereignty’. (2) According to the current UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, is some doubt as to whether an act committed in 2001 is enough to justify the drone program in 2012. What’s more, placing an individual on a ‘kill-list’ for months on end shows that the ‘self-defense’ clause is loosely interpreted. And Pakistan has shown, at numerous times, it can take the necessary action against militants (in Swat for example).
2. Circumstances in which individuals may be lawfully targeted.
Background. Does an armed conflict exist? U.S. officials have been quick to state it does, and therefore invoke IHL (and the self-defense clause). Yet there is some doubt – the lack of centralized leadership in non-state groups and the existence of sporadic and isolated attacks complicates what counts as an ‘armed conflict’ in Pakistan.
Analysis. If there is an armed conflict, any drone strike must be evaluated within the remit of IHL, including the fundamental principles of,
(a) Distinction. This is difficult in FATA due to the ‘intermingling’ of fighters and civilians. ‘Direct participation in hostilities’ is a vital requisite – and requires participation that adversely and directly affects the opposing party in a concrete manner. It is centered on concrete acts rather than membership or indirect forms of support. The ICRC has further distinguished between civilians who participate in specific acts and those that are involved in a ‘continuous combat function’. Even so, the other core requirements must be met, especially that the attack serve a legitimate military objective.
(b) Proportionality. Individual strikes have targeted population centers including mosques, schools, and jirgas where large number of civilians are present. This raises questions concerning whether the strike was proportional to a concrete military objective. Signature strikes raise questions over whether or not safeguards where put in place to ensure the targets were lawful.
(c) Humanity. Strikes on rescuers and first responders may violate principle of distinction and hors de combat. ‘Guilt by association’ and defining all military-age males as militants are worrying trends.
(d) Military necessary. Drone strikes are often ‘timed’ in relation to wider political events, such as the Raymond Davis event, and the killing of 24 Pakistani soldiers. This suggest that the timing and intensity of the attacks is not always driven by necessity – it can be influenced by political concerns.
For more on this, see an earlier post on ‘distinction’ and ‘proportionality’.
In the absence of armed conflict, only IHRL applies.
IHRL permits lethal force only when necessary and proportionate. Targeted killings are unlawful under IHRL, because it only permits lethal force when necessary to protect against a threat to life, and where there are no other means, such as capture or preventing that threat to life. Indeed, much evidence, including signature strikes, strikes on rescuers, the administrations’ definition of militant, and the lack of evidence of an ‘immanent threat’ suggest otherwise.
U.S. domestic law.
Background. Strictly speaking, U.S. domestic law is irrelevant to the international context, and irrelevant to whether or not the U.S. violates Pakistani sovereignty.
The 2001 ‘Authorization to Use Military Force’ AUMF permits the President to use ‘all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons’. Strikes against those not involved in 9/11, such as the Haqqani Network and TTP would appear outside of this authorization.
Analysis. The CIA is able to take action against those it deems in an immanent threat without first obtaining Congressional approval. While all US presidents have embraced Gerald Ford’s 1976 executive prohibition against assassination, at least two presidents have reportedly relied on classified legal memoranda to conclude that ‘executive orders banning assassination do not prevent the president from lawfully singling out a terrorist for death by covert action’.
Although the CIA operates under a different section of the U.S. code (Title 50) than the armed forces (Title 10) it must still adhere to the Constitution ‘OR ANY STATUTE OF THE UNITED STATES’ (50 USC. §. This means that covert action must adhere to the same kinds of domestic law as other armed forces, including the ban on assassinations. 413b(a)(5) (2006)
4. Accountability and Transparency
Background. International law requires states to ensure basic transparency and accountability, and must investigate war crime allegations, and prosecute where appropriate. This requirement is intensified where civilians are concerned, or where there is an alleged violation of the norms banning extrajudicial executions.
Analysis. The U.S. has failed to adequately account for the CIA’s drone program. Even though it frequently invokes the ‘inherent right to self defence’ under Article 51 of the UN Charter, the U.S. has also failed to report to the Security Council – a legal requirement.
As former U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions Professor Philip Alston concluded
“Assertions by Obama administration officials, as well as by scholars, that these
operations comply with international standards are undermined by the total absence of any forms of credible transparency or verifiable accountability. The CIA’s internal control mechanisms, including the Inspector-General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a ‘free pass’ to the CIA; judicial review has been effectively precluded; and external oversight has been reduced to media coverage which is all too often dependent on information leaked by the CIA itself”
Given this brief review, it appears that the U.S. drone program is in violation of several basic tenets of international humanitarian law and international human rights law and is in clear of Pakistan’s sovereignty. In particular, the U.S. executive continues to define its use of force as an act of ‘self defense’ without inviting any kind of national or international public scrutiny. This jus ad bellum violation is matched by a series of jus in bello violations, centered of the targeting of ‘first responders’ and civilians in the tribal areas.