Predators in the Sky: America’s Illegal Drone War
The drone has become the trademark of US counterinsurgency in the 21st century, the silhouette of a General Atomics MQ-1B Predator its icon. The weapons are more advanced, but rules have remained the same, and the US is breaking them.
Foreign Affairs
Alasdair Fraser
How the gnat became the Predator
The unmanned aerial vehicle (UAV) or drone is a type of remotely piloted light aircraft. In use since World War II, early prototypes were unsophisticated and used as distractions. However, it was not until the Yom Kippur War when Iraqi-born Israeli engineer Abraham Karem became the “drone father,” pioneering UAV technology for the Israeli Air Force.
Karem eventually immigrated to the United States in the 1970 and in the soon began developing the GNAT in his California garage, with a little help from DARPA. Scooped up by nuclear energy firm General Atomics, Karem’s GNAT 750 was further developed and saw action as a surveillance platform in the Balkans. However, vexed CIA leadership soon demanded more of the system, giving birth to the Predator, a GNAT with a satellite uplink and sophisticated surveillance payload, housed in its now iconic bulged nose.
An armed variant soon followed: a bright spark realised a drone mounted Hellfire is more efficient than a cruise missile when you are hunting terrorists. However, haunted by past controversy, the CIA was reluctant to pull the trigger, and the weapon remained unused.
All that changed with 9/11 — the CIA shed its shamed abstinence from assassination, adopting the term du jour ‘targeted killing’ and heartily took to the plucky flying drone. President Ford’s decades-standing assassination ban be damned; they had terrorists to kill.
Today, most of the world’s largest militaries have or are developing drones. However, the United States, Israel and the United Kingdom maintain primacy, with the former providing the latter with its coveted MQ-9 Reaper at the bargain price of 10 for £500 million in 2007. From Creech Air Force Base in Nevada, the RAF’s 39 Squadron and the US Air Force operate Reapers launched from forward-bases across the world.
Overworked operators sit in metal huts in the desert, peering down at the world, observing the daily lives of Pashtun tribesmen in Waziristan and Somalis in Mogadishu. Collaborators on the ground feed them information, while the drones sniff out targets of one of the many kill lists maintained by US agencies. For 12 hours, the pilots watch — and then it’s over. They go home, maybe have dinner with the kids. The drive back to Vegas could follow half a day staring at the sand, or a nerve shattering kinetic strike. Maybe they supported ground troops in Afghanistan, or maybe they obliterated a child who happened to walk into the reticule just as they released their payload.
Is this all legal?
For a war to be Just, it must satisfy the laws and traditions of war, divided between Jus ad bellum (the recourse to war) and Jus in bello (conduct in war). Scholars tend to assert that for an armed conflict to be justified, it must satisfy the provisos of the UN Charter, specifically Article 2(4), which states that members should refrain from the use or threat of force against “the territorial integrity or political independence” of another state. Exceptions exist in Article 51, which addresses self-defence, and 42, which concerns authorisation by the UN Security Council. For a conflict to remain just and legal, it must also satisfy Jus in bello, complying with International Humanitarian Law (IHL) and a range of treaties that dictate conduct in war. However, outside of armed conflict recognised by Jus ad bellum, only International Human Rights Law (IHRL) applies, protecting civilians from death and mistreatment.
Within this context, are drones legal? In simple terms, yes, drones can be used legally. They do not necessarily breach any understanding in international law as a weapon. However, that is in principle; in practice, militaries use them in ways that attempt to circumvent the just war tradition, justifying strikes by referencing a complex web of secret laws and misinterpreting the intentions of international treaties.
Professor Mary Ellen O’Connell of the University of Notre Dame Law School does not buy the US legal arguments. She argues that US drone strikes do not meet standards under international law, and worries about the flippant disregard for IHL shown by senior White House attorneys — who have in the past referred to the Geneva Conventions as “quaint.” She excoriates the involvement of civilians like the CIA and private military contractors (PMCs) like Blackwater, which she believes is a blatant attempt to shirk responsibilities under the Uniform Code of Military Justice (UCMJ). O’Connell also criticises what she feels is inadequate legal training for operational commanders and their legal counsel.
Similarly, Professor Ryan Vogel of Utah Valley University contemplates the legal issues of drones, especially on matters such as collateral damage and state sovereignty. Vogel argues that the assumption of legality comes from the bi-partisan belief that the US is in ‘armed conflict’ with Afghanistan and that the law of armed conflict (LOAC) allows for different forms of war. He asserts that war between states is covered by The Hague and Geneva conventions and customary law, while Common Article 3 of the Geneva conventions and domestic laws govern non-international armed conflicts between states and non-state actors. Consequently, Vogel argues that the US cannot, by definition, be in international conflict with al Qaeda, because it is not a state entity in the same way the Taliban were.
Journalists and activists have yet other opinions. Medea Benjamin, co-founder of Code Pink and author of Drone Warfare: Killing by Remote Control, believes almost every drone strike is illegal. Similar to Jeremy Scahill, co-founder of the Intercept and author of Dirty Wars and The Assassination Complex, and a swath of other experts, Benjamin believes President Gerald Ford’s Executive Order banning assassinations by US personnel still holds. She endorses damning judgements by the last two UN Special Rapporteurs on extrajudicial, summary or arbitrary executions, who condemn tactics such as the “double tap” strike as war crimes.
Jeanne Mirer, a New York City attorney and Professor Marjorie Cohn of the Thomas Jefferson School of Law, also agree on the illegality of US drone strikes. Cohn’s compendium Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues, contains many such arguments, featuring the work of Mirer, Benjamin, and others. Mirer puts things quite plainly, arguing that if there is no standing death sentence in the state where a targeted killing occurs, it is by its nature extrajudicial. She mainly focuses on the cases of Pakistan, Yemen and Somalia, where she echoes the common argument that, because the US is not at war with these states, they are governed by humanitarian law, and they are breaking it.
However, as mentioned earlier on, drones can, in principle, be legal. Professor Hugh Gusterson of George Washington University coined the terms pure and mixed drone warfare to describe this difference. In the pure variety, governments use drones as standalone weapons platforms outside of war zones, similar to any assassin’s tool. However, drones, he argues, can also be used legally in mixed warfare, supporting troops by providing air support and reconnaissance. Similarly, Benjamin differentiates between the use of drones by military personnel such as Joint Special Operations Command (JSOC) and the US Air Force, which can be legal, and CIA operations aided by PMCs, which cannot. She argues that civilians and mercenaries are “unlawful combatants” who cannot be adequately held to account (mirroring Vogel and O’Connell’s positions.)
James Cavallaro, Stephan Sonnenberg, and Sarah Knuckey, who published Living Under Drones, an in-depth study into US drone strike in Pakistan, offer additional insights. Specifically, they question the legitimacy of using the Authorisation of Use of Military Force (AUMF), the bipartisan agreement in Congress authorising the President to pursue Al Qaeda after 9/11, to justify hostilities in the Middle East over a decade-and-a-half later. They quote UN Special Rapporteur Christof Heyns, who said: “killings carried out in 2012 can be justified as in response to [events] in 2001”. The also question the extent to which the Pakistani government consented to US strikes in Waziristan, discussing the threat to Pakistani sovereignty and whether the US had a self-defence right to pursue al Qaeda in Pakistan.
Meanwhile, Professors John Kaag of the University of Massachusetts, Lowell, and Sarah Kreps of Cornell University, co-authors of Drone Warfare, agree with Cavallaro et al.’s assessment of the AUMF. They argue it “offers no temporal or spatial limits” to the President’s power, setting a dangerous precedent. Additionally, they claim the Obama Administration’s justifications “[go] beyond reasonable interpretation of international law governing the use of force”. Furthermore, they contend that the open-ended goal of “eradicating evil” fosters a doctrine which makes little provision for the Jus in bello principles of distinction and proportionality. A key concern for Kaag and Kreps, as well as other experts, is the lack of consideration of proportionality and distinction between combatants and civilians.
The al-Awlaki Family
In September 2011, Anwar al-Awlaki was killed in a target drone strike while he was in hiding in Al Jawf, Yemen. Born in New Mexico to Nasser al-Awlaki, a Yemeni academic, Anwar grew up to become a prominent American Imam. In January 2010, al-Awlaki was elevated to JSOC’s High-Value Target (HVT) “capture or kill” category. His father, then living in Yemen, wrote to President Obama, pleading with him to reconsider his son’s placement on the ‘kill list.’ Around this time, Jameel Jaffer, an attorney and former Deputy Legal Director of the American Civil Liberties Union (ACLU), famous for litigating Freedom of Information Act cases concerning US intelligence, flew to meet Dr al-Awlaki. Together, they filed a lawsuit on Anwar’s behalf. It was a “bizarre death-penalty case” Jaffer wrote, “in which there was no indictment, the accused was hiding overseas, and the prosecutors, who had already pronounced the sentence, were apoplectic at the suggestion that there should be anything resembling a trial.” Nevertheless, a federal judge threw the “unique and extraordinary” case out on “procedural and jurisdictional grounds.” Nine months later, Anwar al-Awlaki and Samir Khan, a fellow American working for Inspire, al Qaeda in the Arabian Peninsula (AQAP)’s magazine, were killed by a Hellfire missile. A week later his 16 year-old-son, Abdulrahman was killed in another drone strike ‘by accident’. However, Dr al-Awlaki’s suffering did not end there. In a raid on a suspected AQAP base in Yemen ordered by President Trump’s earlier this year, involving Seal Team 6, Helicopter support and a Reaper system, 30 civilians were killed, including Nawar al-Awlaki, Anwar’s eight-year-old daughter.
While there is a dispute over whether or not Anwar al-Awlaki was anything more than an AQAP propagandist, it is evident he had ties to terrorists and worked closely with them once he immigrated to Yemen. Intelligence intercepts show Major Nidal Malik Hasan, the 2009 Fort Hood and a member of al-Awlaki’s congregation, had been in contact with him before the attack. Additionally, Anwar was in touch with three of the 9/11 hijackers, who visited him at his mosque in California. However, despite this information being widely available to the public, and grounds for his arrest, the US government refused to produce any evidence of his links to terrorism, or any crime for that matter. Instead, they chose to keep their justification for his assassination a state secret.
According to Glenn Greenwald, had the US been at war, it would be perfectly legal to kill an American citizen. However, the Bush and Obama administrations had twisted this understanding, defining the entire world as “the battlefield.” Ironically, this is the only sticking point for a statistically significant portion of the US population; not the extrajudicial killing of thousands, but the death of a handful of Americans. While people in nearly every other country in the world condemn the use of drone strikes, Pew Research polls show that 60% of America supports their use in targeting suspected terrorists, despite what Gusterson describes as “a plurality” of Americans being almost entirely ignorant of where drone strikes occur.
The problem with criticising the US government’s use of drone strikes, until last year, was that much of our information on the internal process and legal justifications came from leaks that were hard to confirm. However, in 2016, Jameel Jaffer published The Drone Memos, which contained a compendium of White Papers, guidance documents, and a copy of Obama’s ‘playbook.’
By analysing the material in Jaffer’s book, it becomes apparent just how much the Obama Administration had to stretch the law to justify the killing of one of its citizens. Two of the documents, which together make up the basis of a heavily redacted White Paper obtained by the ACLU as the fruits of FOIA litigation, can be used to glean an understanding of the Obama administration’s process. The White Paper, from May 2011, was prepared by the Office of Legal Counsel, under the direction of Attorney General Eric Holder, in response to a Senate Intelligence Committee request for the Obama Administration to explain its legal basis for targeting an American citizen.
The first of the two documents, which together form the foundation for the White Paper, directly concerns al-Awlaki. The Department of Justice (DoJ) Memorandum for the Attorney General, titled “Re: Lethal Operations Against Shaykh Anwar Aulaqi [redacted]” is dated February 19, 2010. Inside, Acting Assistant Attorney General David Barron outlines the legal case for a lethal strike against al-Awlaki, an American citizen. The heavily redacted memo explores Executive Order 12333, which bans assassination, it contemplates Supreme Court case law for precedent and offers an assessment on whether al-Awlaki had ‘taken up hostilities’ against the US overseas and whether he presented an imminent threat. The document claims to provide sufficient evidence for a legal strike against al-Awlaki, arguing it was consistent with the Constitution. Furthermore, it only alludes to the al-Awlaki’s Fifth Amendment right to due process. Although, unfortunately, due to how heavily the document was redacted, we cannot review the government’s argument for circumventing President Reagan’s assassination ban. Nonetheless, it is immediately clear that the Justice Department’s assessment of the imminence of al-Awlaki’s threat to the US was far too weak to authorise his killing.
According to Benjamin McKelvey, an attorney writing for the Vanderbilt Journal of Transnational Law, Al-Aulaqi v. Obama tested al-Awlaki’s right to due process. McKelvey argues the courts dismissed the case because the DoJ claimed: “the decision to target Aulaqi for extrajudicial killing was purely within executive branch authority and that to litigate this matter would require judicial infringement on executive power.” Jaffer and McKelvey both warned about the grave constitutional consequences of the ruling. Jaffer said: “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.” Adding, “It would be difficult to conceive of a proposition more inconsistent with the Constitution or more dangerous to American liberty.”
Jaffer gained the second of the two documents review here, through a court-mandated disclosure. This second memo had far less black ink, and it explained in detail the legal justifications for both the Department of Defense and CIA operations against al-Awlaki. The memo begins with an extensive examination of “unlawful killing,” which it defines as the intentional killing of a person absent justification or cause. It takes this understanding, and warps it, arguing that “public authority” could justify al-Awlaki’s murder and that the statutes on murder were not designed to limit executive power. As such, the memo finds, killing al-Awlaki would not be ‘murder,’ in the public sense. Additionally, the memo argues that the law does not protect US citizens overseas from the “lawful conduct of war.”
Next, the memorandum invokes the AUMF, claiming that: “[w]hen the President acts pursuant to an express or implied authorization of Congress” he assumes both his maximum authority and any that Congress can delegate, allowing for the targeting of “organisations” described in the authorization. Furthermore, the document argues that “high-level government officials” concluded that Awlaki a member of the AQAP leadership and that he posed an ongoing, imminent threat, and was actively planning an attack. From this, it concludes that the strike was consistent with AUMF and IHL, as a targeted killing in a “non-international armed conflict.”
However, AUMF does not satisfy Jus ad bellum, nor does the International Committee of the Red Cross (ICRC) definition of a combatant match up with the spirit of humanitarian law. Additionally, the memo follows this up with the questionable assertion that the CIA, a civilian agency, could use the same “public authority” justification as the armed forces. Furthermore, the whole document is predicated on the assumption that al-Awlaki was an operation leader of AQAP; something for which the memo provides no evidence.
As such, the arguments presented in the documents provide a less than persuasive case for assassinating al-Awlaki. Furthermore, journalist Jeremy Scahill asserts that in October 2009, the CIA concluded it had insufficient evidence to escalate al-Awlaki to HVT status, with only proof of his explicit praise for AQAP and not of his leadership. Professor Michael Ramsden of the Chinese University of Hong Kong’s Law Faculty agrees, arguing that the burden of proof remain with the US government. The onus is on them to disclose classified intelligence in their possession to prove that al-Awlaki was anything more than “a mere ideologue with no operational involvement in AQAP.”
Is the Jury out on drones?
The way combat drones are used, primarily flying over civilian areas and not the battlefield, is severely questionable legally. While you can, with some great warping of intent, shoehorn laws to legitimise hunting al Qaeda from the sky across Africa and Asia, there are swaths of other issues that make the legality of drones questionable. As is discussed above, outside of interstate war, domestic and humanitarian law apply, and they are less forgiving on the definition of when it is legal to kill. Additionally, it goes against all reason that the 2001 AUMF is still used to legitimise killing in Syria and Libya. Those warzones opened a decade after the AUMF received approval in Congress, and the US, to this day, has only the faintest of consent for their actions in many of the other nations in which its predators hunt.
