Drone Warfare

by Medea Benjamin

  The Palestinian Center for Human Rights reported that missiles fired by the drones have led to 825 deaths, with a large percentage of those killed being civilians who perished because they were mistakenly targeted or because of the shower of shrapnel from the strikes themselves. With the American public lulled by the rhetoric that calls killing terrorists a necessity for national security and ignores the cries of victims rendered silent by the chokehold of local complicity and imperial might, the drone war represents one of the greatest travesties of justice in our age. Not only does it execute American citizens and innocent civilians with impunity, it renders hundreds of thousands of others maimed psychologically, left homeless and without a livelihood.

  For Americans, these unaccounted-for acts of aggression represent an erosion of democracy. Declarations of war are no longer determined by elected officials acting on behalf of the American people, but by unknown, anonymous contractors and government assassins who kill with regularity but face no requirement of responding to those Americans, you and I, in whose name they so easily, effortlessly, press the “shoot” button.

  Murder by Drone: Is It Legal?

  “If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries…. International law progresses through violations. We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal moulds. Eight years later it is in the center of the bounds of legitimacy.”

  —Colonel Daniel Reisner, former head of the Israeli

  Defense Force Legal Department219

  “We’re not in kindergarten on this anymore: we’ve been doing this [targeted killings] since 2001, and there’s a well-established protocol.”

  —Bruce Riedel, former CIA officer220

  It used to be that if the US government wanted someone in a foreign land dead, it would simply deploy elite assassins who would use everything from exploding cigars to good old-fashioned bullets to eliminate their target. But knocking someone off in-person carried with it significant risks, both for the would-be assassin, who could be killed or captured, as well as those ordering the hit, who could at the very least be shamed—and perhaps even indicted.

  But times have changed. Now when it comes to carrying out state-sponsored assassinations, the US government prefers the ease and comfort of an unmanned drone strike under the legal auspices of its global war on terror. Beginning under the administration of President George W. Bush, the reliance on drones for extrajudicial killings has since soared under his successor, with President Barack Obama employing them not just in Iraq and Afghanistan, but also far from any battlefield where the US is officially at war.

  In Pakistan, a nominal US ally, Obama authorized four times as many drone strikes in just his first two years in office as his predecessor approved in two full terms. Regardless of who has been in the White House, though, the excuse has always been the same: the strikes are exercises in self-defense.

  Indeed, under both Republican and Democratic administrations, US officials have insisted that the government has the right to assassinate anyone, anywhere, who they believe poses a threat to America. The US government need not be formally at war with any country in which it carries out those killings, nor need it present any evidence—in a civilian trial, a military tribunal or the court of public opinion—that the target has committed a crime. In fact, in the vast majority of cases, according to the Los Angeles Times, the US government does not even know the identities of those whom it is slaughtering.

  This was not the case before 9/11. In fact, just two months before the 9/11 attacks, the US Ambassador to Israel, Martin Indyk, denounced Israel’s targeted killing of Palestinians. “The United States government is very clearly on record as against targeted assassinations,” he said. “They are extrajudicial killings, and we do not support that.”221 The practices the US government chastised Israel for were soon embraced as part of the American war on terror. And nobody in the government called it assassination anymore.

  The presumption of innocence, jury trials and formal declarations of war became bothersome legal anachronisms. American presidents now assert the right to be judge, juror and executioner, a de facto license to kill free from the irksome interference of checks and balances. The only law that really matters is “the Law of 9/11.”

  As far as domestic law, the legal underpinning for drone attacks is the 2001 Authorization for the Use of Military Force (AUMF), which the US Congress passed just days after 9/11. It empowers the president to “use all necessary and appropriate force” to pursue those responsible for the terrorist attacks. The National Defense Authorization Act of 2012 reaffirmed the president’s authority under the 2001 authorization.

  At a March 2010 address at the American Society of International Law, the Obama administration’s top legal adviser, Harold Koh, attempted to counter increasingly loud criticism that extrajudicial killing by drones violates international norms.222 “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,” Koh said, “and may use force consistent with its inherent right to self-defense under international law,” including “lethal operations conducted with the use of unmanned aerial vehicles.” But many legal experts take issue with Koh’s sweeping statement, and the policies it justifies.

  WHAT IS THIS “RIGHT TO SELF-DEFENSE”?

  Under international law, all nations possess the right to defend themselves against an imminent attack. For instance, if an army is amassing troops along one’s border in clear preparation for an invasion, that nation is legally entitled to act in “anticipatory” self-defense. But, as the US government itself maintained during a landmark case in the 19th century that helped establish the international precedent, such an act is only justified if “the necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.”223

  In other words, a country’s political leaders can’t legally employ lethal force simply because, maybe, at some indeterminate point in the future, they believe an individual or nation could decide to do them harm. That’s why the 2003 invasion of Iraq, which the Bush administration claimed was an act of “preemptive” self-defense, was a clear violation of international law, as even the Pentagon’s own Richard Perle conceded.224 Saddam Hussein may have been a repressive dictator, but there was never any evidence he had either the intention or capability of striking the US homeland.

  The drone wars are, perhaps even more brazenly, in defiance of the law. There are two types of drone strikes. “Personality strikes” are where a specific person is being targeted because they have been placed on a “kill list” for being deemed a threat to the United States. The second type, called “signature strikes,” are based not on the presence of a known terrorist suspect sworn to the destruction of America, but on whether the targeted person’s or persons’ “pattern of life” fits that of a militant in the eyes of a drone operator thousands of miles away. To make matters worse, the government has refused to say how it defines “militant.” Despite the murkiness, most drone strikes fall into this second category.

  Even when the US government was killing armed combatants, it’s not clear these attacks are actually eliminating threats to America. Most of the Taliban based in Afghanistan and Pakistan, for instance, have sought to drive foreign occupation forces out of their homeland, not launch international terror attacks.

  The same goes for militants in Somalia. In 2011, the Obama Administration began using Predator drones there to strike at suspected members of the Al Shabab militia, a group that aims to create an Islamic state and is currently warring against the Western-backed—and unelected—government of the country.225 While no one would confuse its members with non-violent peace activists, the group is not a threat to the US homeland.
The Obama Administration even admitted that. As the Washington Post reported in December 2011, the US military’s Joint Special Operations Command (JSOC) had for some time been chomping at the bit to increase the number of drone strikes in Somalia, including against Al Shabab camps where US citizens are known to have gone for training.226 “But the administration has allowed only a handful of strikes,” the paper reported, “out of concern that a broader campaign could turn al-Shabab from a regional menace into an adversary determined to carry out attacks on US soil.”

  In other words, the Obama Administration conceded that Al Shabab did not pose a threat to the United States—and that only a broad and sustained drone strike campaign could change that. So much for drones only being deployed for self-defense. As it turns out, even the US government acknowledges that their use threatens to increase the risk of attacks on America.

  WHO ARE LEGITIMATE TARGETS?

  Even if someone is whipping up anti-American sentiment or advocating jihad against the West, can you legally kill them for that? No. There are rules about whom you can target.227 If you are in an armed conflict, targeted killing is legal if and only if the target is a “combatant,” a “fighter” or, in the case of a civilian, someone who “directly participates in hostilities.” The phrase “direct participation” means someone who directly supports combat—that is, has a gun or a bomb in his hands—or who is actively planning or directing future military operations. It is not someone who only planned operations in the past, or someone who provides financial support, advocacy or other non-combat aid.

  When you are not in an armed conflict, the rules are even stricter. The killing must be necessary to protect life and there must be no other means, such as capture or nonlethal incapacitation, to prevent that threat to life.

  Deciding what is a legitimate target is particularly difficult when the US is engaged in a part of the world where its understanding is limited and intelligence is so often faulty. Time and again, drones have targeted the wrong house or the wrong group—from wedding parties to meetings of tribal elders.

  We know the government makes mistakes, lots of them, in giving people a “terrorist” label. During the Bush Administration, former Defense Secretary Donald Rumsfeld assured the public that the prisoners locked up in Guantánamo were all “the worst of the worst,” only to find out that hundreds were innocent people who had been sold to the US military by bounty hunters. Why should the public believe what the Obama administration says about the people being assassinated by drones?

  CAN A GOVERNMENT KILL ITS OWN CITIZENS WITHOUT TRIAL?

  On September 30, 2011, a US Predator drone flying over Yemen fired a Hellfire missile at a car carrying two American citizens, Samir Khan and Anwar al-Awlaki. Both were propagandists for a terrorist group that took its inspiration from Al Qaeda. Samir Khan was the editor of Insight, an English-language propaganda magazine for Al Qaeda in the Arabian Peninsula, and was not on the “hit list.” He was merely collateral damage in the US attack on al-Awlaki, a radical Muslim cleric who had been placed on a secret assassination list more than a year earlier.

  The Obama Administration never deigned to present any evidence against al-Awlaki. The reasons he was placed on a presidential kill list are classified. No evidence implicating al-Awlaki in acts of terrorism—as opposed to giving unpopular speeches—was ever released to the public and he was never so much as charged with a crime. The Obama Justice Department even fought attempts by his father aimed at compelling the government to do just that. But the court sided with the Administration, calling the president’s decision to order the assassination of an American citizen, with no due process or explanation, “judicially unreviewable.”

  The judge’s decision left serious questions unanswered. Outside of the context of armed conflict, shouldn’t the government only be allowed to carry out the “targeted killing” of an American citizen as a last resort to address an imminent threat to life or physical safety? Why didn’t the court order the government to disclose the legal standard it uses to place US citizens on government kill lists? Why is judicial approval required when the United States decides to target a US citizen overseas for electronic surveillance, but not required when the government decides to target a US citizen overseas for death?

  “If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation,” said Jameel Jaffer, Deputy Legal Director of the ACLU. “It would be difficult to conceive of a proposition more inconsistent with the Constitution or more dangerous to American liberty. It’s worth remembering that the power that the court invests in the president today will be available not just in this case but in future cases, and not just to the current president but to every future president. It is a profound mistake to allow this unparalleled power to be exercised free from the checks and balances that apply in every other context.”228

  Immediately following al-Awlaki’s death, constitutional lawyer Barack Obama announced that the assassination was “a major blow” against Al Qaeda. Rep. Peter King, chairman of the House Homeland Security Committee, insisted the lethal strike was lawful. “It was entirely legal,” he said. “If a citizen takes up arms against his own country, he becomes an enemy of the country.”

  But like any other American citizen, al-Awlaki was entitled under US law to a presumption of innocence and jury trial, even if it had to be in absentia. Al-Awlaki may have been a traitor who had defected to the enemy, but the Constitution requires that he be convicted on the “testimony of two witnesses” or a “confession in open court,” not the say-so of the executive branch.

  Since al-Awlaki—like many other never-charged terrorist suspects taken out in targeted killings—was not in an active war zone, under international law the US government ought to have exhausted all attempts to capture and detain him before resorting to lethal force. The Obama Administration refused to do that, indicating that lethal force is the government’s first resort, not its last.

  After the killing of al-Awlaki, lawmakers, policy experts and former government officials spanning the political spectrum argued for more transparency around the US drone program.229

  Instead of transparency, the CIA responded two weeks later with another drone strike in southeastern Yemen that killed nine people, including al-Awlaki’s sixteen-year-old American son. US officials say those who gave the order to kill did not know the American teenager was in the group. But even if they had known, it’s not clear they would have stopped the attack, and no disciplinary measures were taken against those who authorized the strike that killed a young American who posed no threat to the United States.

  WHY NOT CAPTURE TERROR SUSPECTS?

  Under the Bush administration, hundreds of people labeled “enemy combatants” were rounded up far from the battlefield and imprisoned—for indefinite terms without charge or trial—at Guantánamo Bay and in prisons in Iraq and Afghanistan. The CIA captured and detained hundreds more at black sites around the world. This proved to be problematic. Legal experts denounced indefinite detention as an affront to international norms, and many of those detained were indisputably innocent. This left the US government with a long-term public relations nightmare, exacerbated by the inhumane, torturous conditions described by those it wrongfully imprisoned.

  Barack Obama was determined not to make the same mistake. His counter-terrorism policy was markedly different from that of his predecessor, but not exactly the way human rights activists would have wished. Some called it the kill-don’t-capture doctrine.

  Noah Feldman, a constitutional and international law professor at Harvard University, put it this way: “Obama’s team observed that holding terror suspects exposed the Bush administration to harsh criticism (including their own).”230 By contrast, “Dead terrorists tell no tales—and they also have no lawyers shouting about their human rights.”

  The kill-don’t-capture Obama doctrine was bluntly explained by
Attorney General Eric Holder during a March 2010 congressional hearing.231 Asked about the possibility of affording Osama bin Laden a trial, he responded that the questioner was “talking about a hypothetical that will never occur. We will be reading Miranda rights to the corpse of Obama bin Laden.”232

  In a mission aided by surveillance drones, an unarmed bin Laden was killed by a team of Navy SEALs, which the National Journal noted “wasn’t an accident.”233

  “A high-ranking military officer briefed on the assault said the SEALs knew their mission was not to take him alive,” the Journal reported.

  The lesson of Guantánamo Bay and the Bush years appears to be this: extrajudicially killing alleged terrorists—while just as legally dubious—is superior to detaining them. It precludes the possibility of long-term international embarrassment and public campaigns by uppity human rights activists. And no one, not even members of a military tribunal, need assess the evidentiary basis for the killing.

  CAN THE US CARRY OUT DRONE ATTACKS ANYWHERE IT WANTS?

  No. In a May 2010 report, Philip Alston, an expert on international law at New York University who was then the United Nations’ special rapporteur on extrajudicial, summary or arbitrary executions, was clear. “Outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal.”234

  The United States, the most prolific user of drones to carry out targeted killings, asserts its attacks are legally justified as it is engaged in a global war against Al Qaeda and associated terrorist groups. By this rationale, the CIA would be justified in dropping a Hellfire missile on a suspected terrorist in an apartment in Hamburg, a restaurant in London or a mosque in upstate New York. Why stop at merely dropping bombs in poor countries dominated by people of color?