Predators

by Williams, Brian Glyn

  As the use of drones increases in both the United States, where they have been used for surveillance on the Mexican border and in an arrest in North Dakota, and the UK, news of the expanded use of drones overseas in Pakistan, Afghanistan, Iraq, Yemen, Libya, and Somalia has been mainstreamed by the UK and U.S. media. As a result, public awareness of the drones has increased, and this has led to mounting opposition to the world’s first “robotic” assassination campaign. (The drones are not actually autonomous robots, of course; humans still control them.) Antidrone activists, for example, appeared among the Occupy Wall Street protestors in the fall of 2011. One of them said, “The army considers human losses as collateral damage. Drone attacks are not just killing particular people but they are bombing entire villages and killing innocent civilians. It’s absolutely horrible that we even have that technology.”57

  The issue that many protestors find galling is, ironically enough, the very aspect of the drones that leads to their unique precision, i.e., the fact that they are flown remotely by pilots who use cameras to closely monitor their targets. Opponents fear that the drones represent a slippery slope down the path to the “roboticization” of warfare and the rise of a sanitized video-game mentality of assassination by “kill TV.” The very remoteness of the pilots from danger, they fear, will lead to an increased reliance on drones to kill real or suspected terrorists throughout the world. Soon other countries will be turning their suspected terrorists into “bugsplats” with drones. These activists fear a future when modern states use the drones to kill their enemies across the globe without trials. One antidrone activist summed up this sentiment when he wrote, “These silent surreptitious killings seem antiseptic, somewhat like playing a video game. We do not hear about the horror and grief these executions create. It will be all too easy for the citizens of this country to sanction these kinds of extra-legal activities when they know nothing about their devastating consequences. The absence of U.S. lives lost may make it easier for us to enter wars in the future.”58

  Thus the world’s first remote-control assassination/bombing campaign has led to the rise of the world’s first antidrone campaign, which shows no sign of weakening. As the U.S. military and intelligence agencies increasingly rely on drones in the war against al Qaeda in Pakistan, Somalia, and Yemen, the opposition is bound to increase exponentially.

  THE BATTLE OF THE DRONE LAWYERS

  One of the most fascinating issues of the CIA’s drone campaign, which began as a targeted assassination campaign and then expanded into an all-out war, is its legality. Does the CIA have the right under both international and domestic law to kill thousands of people in a country that the United States is not officially at war with, or has it gone down a dangerous path toward legitimizing a cross-border campaign of mass extrajudicial killings?

  These important questions were raised in 2009 and 2010 by Philip Alston, a professor of law at New York University who also served as the UN’s special rapporteur on extrajudicial killing and arbitrary executions. In an extensive official report to the UN, Alston wrote that America’s “strongly asserted, but ill-defined license to kill without accountability is not an entitlement which the United States or other states can have without doing grave damage to the rules designed to protect the right to life and prevent extra-judicial executions.” The report further said, “This expansive and open-ended interpretation of the right to self-defense goes a long way towards destroying the prohibition on the use of armed force contained in the U.N. Charter. If invoked by other states, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos.” The report ended by saying, “Because operators are based thousands of miles away from the battlefield, and undertake operations entirely through computer screens and remote audio-feed, there is a risk of developing a ‘PlayStation’ mentality to killing.”59

  In an earlier report to the UN, Alston wrote that it was difficult to make any real assessments on the legality of the CIA’s unprecedented drone campaign because it was veiled in secrecy. He called on the U.S. government to provide more information on how targets were selected and civilian casualties avoided. He also called on the United States to explain the legal basis for its unprecedented drone campaign and to outline how it complied with humanitarian law. If the United States did not do so, Alston warned, it would “increasingly be perceived as carrying out indiscriminate killings in violation of international law.” He also said, “The onus is really on the government of the United States to reveal more about the ways in which it makes sure that arbitrary executions, extrajudicial executions are not, in fact, being carried out through the use of these weapons.”60 Alston added, “Otherwise you have the really problematic bottom line, which is that the Central Intelligence Agency is running a program that is killing significant numbers of people and there is absolutely no accountability in terms of the relevant international laws.”61

  The Obama administration was clearly taken aback by Alston’s broadside and felt that some response was necessary to demonstrate that the drone campaign was a legal, responsible, and appropriate response to the terrorist threat that the United States was facing. Harold Koh, legal adviser to the U.S. State Department, was chosen to make that response. In March 2010 Koh gave a speech in Washington, D.C., to the Annual Meeting of the American Society of International Law that for the first time laid out the Obama administration’s rationale for relying on drones:

  With respect to the subject of targeting, which has been much commented upon in the media and international legal circles, there are obviously limits to what I can say publicly. What I can say is that it is the considered view of this Administration—and it has certainly been my experience during my time as Legal Adviser—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.

  The United States agrees that it must conform its actions to all applicable law. As I have explained, 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 the Use of Military Force (AUMF). These domestic and international legal authorities continue to this day.

  As recent events have shown, al-Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this on-going armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks. As you know, this is a conflict with an organized terrorist enemy that does not have conventional forces, but that plans and executes its attacks against us and our allies while hiding among civilian populations. That behavior simultaneously makes the application of international law more difficult and more critical for the protection of innocent civilians.62

  Alston subsequently issued a rebuttal to Koh’s statement: “I don’t think we can ask for full transparency. I don’t think the United States is ever going to provide access to all of the information relating to these killings. But until it starts to provide at least some access, we will not be able to conclude that the United States is in fact complying with the law, as Harold Koh insisted.”63

  Koh did not respond to Alston’s continued requests for the release of further details. But the Washington Post published an article in support of Koh’s statement, which said, “[Koh] rightly rejected the absurd notion that enemy targets must be provided ‘adequate process’ before the strike occurs. … Mr. Koh’s reaffirmation of the right to self-defense—even outside the confines of an existing armed conflict—is particularly important. … The right of self-defense is inherent and
may be exercised against current and future enemies that pose an imminent threat, including those operating outside of traditional combat zones.”64

  Regardless of the criticisms from Alston, the Obama administration has continued to refer to the 2001 AUMF signed by President George Bush, which gave the president the authority “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.”

  There have been several other interesting legal cases involving drones as well. One of them concerns a forty-year-old Yemeni American named Anwar al Awlaki. Awlaki grew up in Las Cruces, New Mexico, but became devoted to jihad against the United States after 9/11. He moved to Yemen, linked up with al Qaeda in the Arabian Peninsula (AQAP), and became an outspoken supporter of jihad against his former American homeland. His emails and online sermons in Arabic, in which he called Americans “devils,” proved to be inspiration for Nidal Hasan, another American Muslim who went on a shooting spree at the U.S. army base at Fort Hood, Texas, that left thirteen dead. After Hasan’s attack Awlaki said, “Nidal Hasan is a hero.”65

  Awlaki’s fiery preaching was also said to have inspired Faisal Shahzad, the failed Times Square bomber.66 In the online jihad magazine Inspire, Awlaki called for the killing of American civilians: “The ideal location [for a bombing] is a place where there are a maximum number of pedestrians and the least number of vehicles. In fact if you can get through to ‘pedestrian only’ locations that exist in some downtown [city center] areas, that would be fabulous.”

  Awlaki’s fluent American English and knowledge of the culture and idioms of the West made him an ideal recruiter for disaffected Muslims, like Nidal Hasan, who were living in America. He was called the “bin Laden of the Internet.” But Awlaki proved to be more than just an inspiration. President Obama called him the “leader of external operations for Al Qaeda in the Arabian Peninsula.”67 On another occasion he said that Awlaki “took the lead in planning and directing efforts to murder innocent Americans.”68 Specifically, he was actively involved in the December 25, 2009, “underwear bomber” plot to blow up an airliner flying from Amsterdam to Detroit.69 He was also accused of involvement in an attempt to blow up a United Parcel Service (UPS) plane flying from Yemen using bombs triggered by a cell phone. If this were not enough, he was found to have been plotting with a British Muslim of Bangladeshi decent to blow up a British airliner.70

  In response to his increasingly dangerous operational role, the CIA announced that it had added Awlaki to a terrorist hit list; he was the first American to earn this distinction. At the time a secret memo that stated that it would be lawful to kill Awlaki only if he could not be taken alive was written. This memorandum was written after meetings in the White House Situation Room involving lawyers from the State Department, Pentagon, National Security Council, and various intelligence agencies. The secret document provided the justification for killing Awlaki, despite an executive order banning assassinations and a federal law against murder. The Justice Department decided that the killing of Awlaki, who was a member of a “cobelligerent” group (AQAP), was covered by the AUMF. The New York Times called the memo, which legitimized the killing U.S. citizen without a trial, “one of the most significant decisions made by President Obama.”71

  In February 2013 a Justice Department memo to the Senate Intelligence and Judiciary Committees that outlined the legal argument for the strikes against U.S. citizens, such as Awlaki, was leaked to NBC. The sixteen-page memo provided guidelines for killing Americans abroad if they were senior members of a terrorist organization and involved in operations against the United States. The memo stated that it is “lawful for the US to target al-Qaeda-linked US citizens if they pose an ‘imminent’ threat of violent attack against other US citizens, and that delaying action against such people would create an unacceptably high risk.”72 The memo required that the capture of American citizens involved in terrorism had to be deemed unfeasible before lethal operations could be carried out against them. Awlaki, who was involved in ongoing terrorist operations against U.S. citizens and guarded by pro–al Qaeda tribesmen in a remote corner of Yemen, certainly fit the criteria covered in the memo.

  The United States subsequently pressured the Yemenis to arrest this major al Qaeda recruiter and planner. On one occasion Yemeni troops surrounded a village where Awlaki was hiding out with tanks, but he managed to escape. The JSOC subsequently made several well-publicized attempts to kill him with drones in Yemen.73

  These developments caused considerable controversy in the United States. The idea that the U.S. government could execute a U.S. citizen with no judicial process based on secret intelligence made many uneasy.74 One counterterrorism official, however, responded to criticism by saying, “American citizenship doesn’t give you carte blanche to wage war against your own country. If you cast your lot with its enemies, you may well share their fate.”75 The Wall Street Journal similarly opined, “Perhaps al-Awlaki’s U.S. citizenship gave U.S. officials pause, but after he joined the jihad he became an enemy and his passport irrelevant.”76

  In response to these extraordinary developments, Awlaki’s father, Naseer Awlaki, sued CIA director Leon Panetta and Defense Secretary Robert Gates with the support of the ACLU. The senior Awlaki described his son somewhat implausibly as an “all-American boy.” The ACLU lawsuit claimed that the Obama administration had given itself “sweeping authority to impose death sentences on American citizens.”77 In December 2010, however, a federal judge threw out the lawsuit claiming that Gates and Panetta were immune from lawsuits and that Awlaki’s father did not have the standing to file the suit.78 In essence the judge ruled that the court did not have the right to overrule President Obama (the executive branch) in wartime on matters involving war.

  In March 2010 the ACLU filed a Freedom of Information of Act lawsuit that demanded that the CIA release information on the drone strikes. According to the ACLU website,

  The public has a right to know whether the targeted killings being carried out in its name are consistent with international law and with the country’s interests and values. The Obama administration should disclose basic information about the program, including its legal basis and limits, and the civilian casualty toll thus far. …

  Recent reports, including public statements from the director of national intelligence, indicate that U.S. citizens have been placed on the list of targets who can be hunted and killed with drones.79

  This suit was also thrown out in September 2011 by a federal judge who stated that the ACLU did not have the right to access information on the CIA’s secret programs.

  Then, on September 30, 2011, news came from Yemen that made headlines around the world. Awlaki and five companions had been tracked down and killed by a CIA Predator missile while they traveled across the north Yemeni desert in a truck. An eyewitness gave the following account of their assassination: “The witness said Awlaki was travelling in a pick-up with six other people on their way to neighboring Marib province. They stopped for breakfast in the desert and were sitting on the ground to eat when they spotted drones, so they rushed to their truck. A Hellfire missile fired from a drone struck the truck, leaving it a charred husk and killing all of those inside.”80

  Because his vehicle had been carbonized in the attack, Yemeni sources were “100% sure” Awlaki was dead. Killed alongside him was another American who had thrown in his lot with al Qaeda, the Pakistani-born Samir Khan. Khan was naturalized in his youth as a U.S. citizen and grew up in New York. He was the editor of Inspire and had once proclaimed, “I am proud to be a traitor to America.”81 Among other articles he published in the magazine was “How to Make a Bomb in the Kitchen of Your Mom.”

  Awlaki’s assassination revived the controversy surrounding the drone strikes, and Jameel Jaffer, the ACLU’s deputy legal director, said the killing violated U.S. and international
law. He said, “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.”82 Samir Khan’s family released a statement that asked, “Was this style of execution the only solution? Why couldn’t there have been a capture and trial?”83

  Libertarians and Muslim advocates further claimed that Awlaki and Khan had been denied their Fifth Amendment rights to protection from governmental legal abuse, including their right to due process. Republican presidential contender Congressman Ron Paul, a libertarian, said, “He was never tried or charged with any crime. … If the American people accept this blindly and casually that we now have an accepted practice of the president assassinating people who he thinks are bad guys, I think it’s sad.”84

  His son, Senator Rand Paul, also a libertarian, would go even further by launching a thirteen-hour filibuster in March 2013 in an attempt to delay the hearing on Obama’s nominee for CIA director, John Brennan. Paul said, “I will speak as long as it takes until the alarm is sounded from coast to coast that our Constitution is important. … That your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty.”85 Paul summed up his aims saying, “I’m here to filibuster John Brennan’s nomination to be director of CIA. … I will speak for as long as it takes. I will speak today until the president says, ‘no’ he will not kill you at a café.”86 In a statement critics called fear mongering, but that was applauded by the Code Pink antidrone movement, Paul said, “That Americans could be killed in a café in San Francisco or in a restaurant in Houston or at their home in Bowling Green, Kentucky, is an abomination.”87