Drone Policy, International Law, and the Next Administration

Photo Credit: CNN.com

By: Jake Howry, Columnist

As the United States prepares for the transition to the next administration, we should grapple with the fact that the next President of the United States will inherit multiple wars, both overt and covert. Perhaps the defining aspect of President Obama’s counterterrorism legacy is the dramatic expansion of the covert drone war over the past eight years. By the administration’s own statistics, more than 400 strikes outside of active military operations have killed at least 2,372 enemy combatants and as many as 116 civilians.[i] In July, President Obama signed Executive Order 13732 “taking additional steps to institutionalize and enhance best practices” regarding the use of drone strikes in counterterrorism operations.[ii] This is only the most recent in a series of Presidential initiatives aimed at providing greater transparency for ongoing covert action. But while these efforts seem progressive, the dangers of institutionalizing the United States’ vague legal rationale for drone strikes outside of the theater of regular military operations remain unclear. As armed drone technology proliferates, it is fair to ask if the US legal rationale has made it easier for others to engage in targeted killings outside of traditional combat zones?

In order to answer this question, one must first understand how the United States justifies strikes and how that justification influences other states’ behavior. Since the US government has not provided the domestic and international legal framework underlying these actions, scholars have relied on a combination of common sense and public statements by current and former administration officials to determine what legal authorities and interpretations provide the basis for drone strikes. [iii]

The United States claims that it is “in an armed conflict with al-Qaida, the Taliban, and associated forces.” Numerous officials have cited the right to self-defense within UN Article 51 to justify U.S. operations in Afghanistan and the accompanying 2001 Authorization for the Use of Military Force (AUMF). The AUMF, a mere 60 words long, authorized “all necessary and appropriate force” against anyone linked to the 9/11 attacks or anyone aiding and harboring someone linked to the attacks.[iv] The AUMF is bound by neither time nor geography and provides much of the legal basis for the ongoing war on terror.

Technically, the United States is explicitly prohibited from participating directly or indirectly in assassinations by Executive Order 12333 sect. 2.11-12. However, in the wake of the 1998 embassy bombings in Kenya and Tanzania, then-President Clinton relaxed this constraint on the use of lethal force in regards to terrorist organizations such as al-Qaida by issuing a presidential finding.[v]. As early as October 28, 2001, The Washington Post reported that the Central Intelligence Agency, who operates the covert side of the drone war, had drawn upon this finding to justify targeted killings of terrorists.[vi]

More recently, CIA Director John Brennan publicly stated that the United States conducts “targeted strikes because they are necessary to mitigate an actual ongoing threat — to stop plots, prevent future attacks, and save American lives.”[vii] However, a leaked 2011 Justice Department White Paper explains that because the United States cannot know the details of all terrorist plots, it “cannot be confident that none is about to occur”.[viii] The logic justifies lethal action against any person associated with a terrorist organization on the presumption they will engage in an act of terror if they were able to do so. This not only radically redefines “imminence” as understood in international law but arguably conflates an imminent threat with an individual’s status, something specifically prohibited under the international law of self-defense.

In failing to delineate its reasoning under international law, the United States’ position of strategic ambiguity has an inherently destabilizing effect. Ambiguity is anathema to a consensus-based system like international law. In the long term, ambiguity of interpretation can be far more damaging than clearly illegal behavior. When there is no consensus on the acceptability of the ambiguous practices, ambiguity erodes the fixed meanings that had previously constrained state action.[ix]

Ambiguity encourages other states to reach a consensus and unify disparate interpretations of international law; counterintuitively, this may normalize the practice of drone strikes in the international legal system. States are unlikely to completely reject US interpretation given the United States’ remains the only global military superpower, preventing a credible enforcement mechanism. The most likely course of action is the adoption of a framework consistent with the United States’ behavior. The current policy of strategic ambiguity would leave it up to the international community to reconcile America’s behavior with international law. The United States has essentially opted out of a re-interpretive process with wide-reaching effects far beyond drone strikes. It is no longer clear, for instance, how the United States interprets relationships between concepts such as sovereignty, self-defense, and imminence. Nor how it precisely defines terms unrecognized by international law, such as “targeted killings” and “active hostilities”.[x]

By formalizing the practices of drone strikes, the Obama administration has lowered the cost for the next president to continue that policy. However, by refusing full transparency into its rationale, it may also have created a space where norms surrounding drone strikes are defined by other nations. The United States will be in a tough position to protest these emerging norms when they run counter to US interests because they have been created, in part, to accommodate past US behavior.

[i] Office of the Director of National Intelligence, “Summary of Information Regarding US Counterterrorism Strikes Outside Areas of Active Hostilities,” July 1, 2016, https://www.dni.gov/index.php/newsroom/reports-and-publications/214-reports-publications-2016/1392-summary-of-information-regarding-u-s-counterterrorism-strikes-outside-areas-of-active-hostilities.

[ii] White House Office of the Press Secretary, “FACT SHEET: Executive Order on the U.S. Policy on Pre & Post-Strike Measures to Address Civilian Casualties in the U.S. Operations Involving the Use of Force & the DNI Release of Aggregate Data on Strike Outside Area of Active Hostilities,” July 1, 2016, https://www.whitehouse.gov/the-press-office/2016/07/01/fact-sheet-executive-order-us-policy-pre-post-strike-measures-address.

[iii] Stimson Center. “Obama Administration Receives Poor Grades On Reforming US Drone Policy,” February 23, 2016, http://www.stimson.org/content/obama-administration-receives-poor-grades-reforming-us-drone-policy.

[iv] Authorization for Use of Military Force, PL 107-40, S. J. RES. 23

[v] Presidential findings are a type of executive decree, separate from an executive order, that are generally understood to be limited in authority to the covert actions of the Central Intelligence Agency which the President deems “important to the national security of the United States”. For more in depth explanation see Pam Benson, “What’s allowed by a ‘presidential finding’?” CNN, March 31, 2011. http://www.cnn.com/2011/POLITICS/03/31/libya.presidential.finding/.

[vi] Barton Gellman, “CIA Weighs ‘Targeted Killing’ Missions: Administration Believes Restraints Do Not Bar Singling Out Individual Terrorists”, The Washington Post. October 28, 2001, http://www.webcitation.org/query?url=http%3A%2F%2Fwww.washingtonpost.com%2Fac2%2Fwp-dyn%2FA63203-2001Oct27%3Flanguage%3Dprinter&date=2008-12-30.

[vii] John Brennan speech at the Woodrow Wilson Center, May 1, 2012, http://www.npr.org/2012/05/01/151778804/john-brennan-delivers-speech-on-drone-ethics.

[viii] US Department of Justice, “Lawful Use of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of Al-Qa’ida or an Associated Force”, White Paper, 2011. Released February 4, 2013 by NBC News, https://www.law.upenn.edu/live/files/1903-doj-white-paper.

[ix] Rosa Brooks, “Drones and the International Rule of Law”, Ethics & International Affairs, 28 no. 1 (2014), 84.

[x] Lynn E. Davis, Michael McNerney, and Michael D. Greenberg, “Clarifying the Rules for Targeted Killing: An Analytic Framework for Policies Involving Long Range Armed Drones”, RAND, 2016, http://www.rand.org/content/dam/rand/pubs/research_reports/RR1600/RR1610/RAND_RR1610.pdf.