America's drone wars.

• Author: Sadat, Leila Nadya
• Position: Symposium: Presidential Power and Foreign Affairs

CONTENTS I. INTRODUCTION II. THE OBAMA ADMINISTRATION "LAWYERS UP" III. SOME PRELIMINARY LEGAL QUESTIONS RAISED BY THE USE OF DRONES BY THE UNITED STATES A. What Legal Regime Justifies the Use of Lethal Force Against Terrorists or Taliban Armed Forces B. Questions as to the Permissible Targets C. Questions Regarding the Processes Used to Create the "Kill List" D. Questions as to Whether Drone Strikes Are Lawful Methods of Warfare E. Questions Regarding the Intended Purposes of the Strikes IV. ETHICAL AND MORAL QUESTIONS RAISED BY U.S. TARGETED KILLING OPERATIONS The U.S. practice of targeted killing by remotely-piloted unmanned vehicles (1) in Afghanistan, Pakistan, Yemen, Libya, Iraq and Somalia--popularly referred to as "America's drone wars" (2) --raises the question of the application of humanitarian law principles to the conduct of America's longest-running war. Yet, it not only presents complex issues of international law but difficult moral and ethical questions. Administration officials and some academics and commentators have praised targeted killing as effective and lawful. Others have criticized it as immoral, illegal, and unproductive. This article concludes that conducting targeted killing operations outside areas of active hostilities violates international law. In addition, even in areas in which targeted killings may be lawful, particular uses of drones may violate international humanitarian law if insufficient attention is paid to principles of proportionality and distinction in their use, particularly as regards decisions of whom, how, and when to target an individual for death. Moreover, to the extent that drones become a means to terrorize a civilian population, their use may be prohibited by international humanitarian law. Finally, decision-makers in the United States must engage not only with the question whether their use of targeted killing is legal, but is a policy that resonates with America's deepest values and promotes U.S. long term interests, including its interest in international peace and justice. (3)

1. INTRODUCTION

   In November 2008, the Taliban captured New York Times journalist David Rhode, along with two Afghan colleagues, and held them for seven months in North and South Waziristan, the focus of the American drone campaign at the time. Rhode was lucky enough to escape from his captors and penned a series of gripping articles about his captivity that appeared on the front pages of the New York Times in 2009. (4) His articles recount an astonishing tale of his capture, the death threats he endured, and the hardships he faced; but what is perhaps even more extraordinary are his insights into the minds of his Taliban captors. In particular, because he was being held in an area being patrolled by drones and in which drone strikes were taking place with regularity, he wrote about the experience of being on the ground while U.S. drones circled overhead. He recently summarized this experience in Reuters, observing:

   Throughout our captivity, American drones were a frequent presence in the skies above North and South Waziristan. Unmanned, propeller driven aircraft, they sounded like a small plane--a Piper Cub or Cessna--circling overhead. Dark specks in a blue sky, they could be spotted and tracked with the naked eye. Our guards studied their flight patterns for indications of when they might strike.... The drones were terrifying. From the ground, it is impossible to determine who or what they are tracking as they circle overhead. The buzz of a distant propeller is a constant reminder of imminent death. Drones fire missiles that travel faster than the speed of sound. A drone's victim never hears the missile that kills him. (5) Rhode was almost beheaded by his captors after a drone strike took place near his prison, inflaming his captors. (6) In his writings, he admits that the drone strikes clearly disrupted Taliban operations and seemed to be tactically effective. At the same time, he observes, as have others, that the strategic value of U.S. drone strikes may be problematic, as they have also resulted in tremendous hatred of and anger with the United States and increased support for the militants.

   Though only recently acknowledged by U.S. government officials, attacks by unmanned aerial vehicles (commonly called "drones") have become a major part of U.S. military strategy and counterterrorism operations. The drones include the MQ-1 Predator and the MQ-9 Reaper. (7) The Predator is more commonly used and is an "armed, multi-mission, medium-altitude, long endurance remotely piloted aircraft," with a "unique capability to autonomously execute the kill chain (find, fix, track, target, engage, and assess) against high value, fleeting, and time sensitive targets," according to U.S. Air Force reports. (8) Predator drones are fitted with two video cameras, an infrared sensor, a laser system, and two laser-guided Hellfire missiles, which the Air Force describes as having "highly accurate, low collateral damage, and anti-armor and anti-personnel engagement capability." (9) Besides a small on-site crew that handles the Predator's takeoff and landing, the Predator is controlled remotely by a crew based in the United States. (10)

2. THE OBAMA ADMINISTRATION "LAWYERS UP"

   In 2009, Jane Mayer reported in The New Yorker on a drone strike that had taken place in Pakistan and discussed both the CIA's highly classified program of drone strikes in Pakistan and other countries around the world, as well as the open use of drones by U.S. military forces operating in theatres of war in Afghanistan and Iraq. (11) The story generated a great deal of criticism of U.S. policy and, just as lawyers were asked to justify Bush Administration Policies on detention after the 9/11 attacks, Obama Administration lawyers were asked to do the same for the drone program.

   In March of 2010, the Legal Advisor to the U.S. Department of State, Harold Hongju Koh, gave a much-anticipated speech at the Annual Meeting of the American Society of International Law in which he defended the Obama Administration's increasing use of drones against individuals alleged to be members of al Qaeda, the Taliban, or "associated forces." (12) The speech emphasized the desire of the United States to comply with international humanitarian law, and specifically, the principles of distinction and proportionality. Koh argued that, as a matter of law, the right of the United States to kill suspected terrorists and militants was predicated upon the existence of an armed conflict between it and various individuals and organizations that allowed the United States to use "self-defense" against these individuals and organizations. (13) The speech was controversial. Although Obama had promised to pursue terrorists and "finish" the war in Afghanistan during the presidential campaign, many human rights activists did not expect his administration to cleave to the same legal arguments about the "war on terror" that his predecessor had, and were surprised that he had done so. Dean Koh's speech responded to very few of the difficult legal and moral questions raised by targeted killing, and although he never used the Bush Administration term of "unlawful enemy combatant" to describe those targeted, the speech seemed more in line with past administration policies than a departure from them.

   Subsequently, the drone campaign intensified, and additional strikes took place in more countries and, occasionally, against not only foreigners but United States citizens. Because the program has largely been operated by the CIA and classified as secret, accurate quantitative assessments of the number of strikes, the locations of the strikes, the number of persons killed, and the identities of those killed or injured is very difficult to come by. Nonetheless, based upon information available in the public domain, it has been estimated that during his eight years in office, President George W. Bush authorized forty-four strikes in Pakistan. (14) Conversely, in less than four years, it has been reported that President Obama authorized 294 strikes in Pakistan, Yemen, and Somalia as of May 28, 2012, in addition to strikes in Afghanistan, Libya and Iraq. (15) In Pakistan alone, it has been reported that these strikes resulted in between 2,524-3,247 casualties, including 482-852 civilians, and an additional 1,204-1,330 injured. (16) Other sources suggest that the number of civilian casualties may be considerably lower, (17) and the Pakistani government suggests that the civilian casualties have been much higher. (18) Regardless of the precise number of casualties, there seems little doubt that thousands of human beings have been killed by drone strikes, and thousands more injured, most outside the theatre of active hostilities.

   In 2011, a fifty-page memorandum drafted by David Barron and Martin Lederman, attorneys in the Department of Justice's Office of Legal Counsel, and signed by Barron authorized the targeting killing of U.S. citizen Anwar al-Awlaki in Yemen. This memo has not been made public; however, its contents were described by anonymous sources to journalist Charlie Savage and published in the New York Times. (19)

   According to Savage's sources, the memo authorized the killing of al-Awlaki only if it was not feasible to capture him. (20) Such a killing was justified because al-Awlaki "was taking part in the war between the United States and A1 Qaeda and posed a significant threat to Americans." (21) The memorandum argued that killing al-Awlaki was not an assassination, as he was a lawful target in an armed conflict, and wasn't murder since he was a lawful target in an armed conflict. Further, it concluded that the drone's pilot, as a CIA official, would not be committing a war crime even though he or she was not a uniformed soldier. (22) Finally, relying on precedent allowing American citizens to be prosecuted in a military court if they had joined an...