Targeting American Terrorists with Drones: Efficient, But Legal?

Targeting American Terrorists with Drones: Efficient, But Legal?

Jan Schwarzenberg

Introduction

In 2002, President Bush authorized a drone attack in Yemen targeting the mastermind of the USS COLE bombing. Also riding in the vehicle was an American citizen.

Though the American was not the target of the missile strike, his death set the stage for the debate of using drones to attack targets outside of designated combat areas such as Iraq and Afghanistan. The argument has two stages. First, whether or not to target terrorists outside of combat areas. Are they still considered combatants if not in an active combat zone engaging U.S. forces on the ground? Secondly, should terrorists be accorded additional consideration before being targeted if they are U.S. citizens?

Immediately following the attacks of 9/11, Congress passed the Authorization for the Use of Military Force (AUMF) allowing the president to attack the terrorists responsible for 9/11. This was coupled with Article 51 of the UN Charter through the clause allowing a nation self-defense in the face of extraordinary threats to the national security.  The U.S. Supreme Court further ruled that the U.S. could indeed label U.S. citizens fighting in Afghanistan as enemy combatants insofar as the AUMF authorized military force in Afghanistan.

Exercising the right to self-defense in targeting and killing terrorists attempting to attack the United States is a relatively easy decision to make. These are foreign combatants who have been identified as terrorists, and where it has been proven there are no better or safer means to capture them then targeted killing can be justified.  The issue escalates to another plane, however, when such an enemy combatant is a U.S. citizen.

Where the precedent has been codified to apply legal jurisdiction to U.S. citizens anywhere in the world based upon their citizenship also implies equal application of constitutional guarantees. Yet the very nature of a targeted killing obviates the process of constitutional protection. The executive branch has retained to itself the role of judicial adjudication in determining a citizen’s guilt in supporting terrorism, with no recourse for the accused to challenge the charges or facts, nor seek appellate review of their case.

On the one hand, the 5th Amendment of the U.S. Constitution guarantees due process of law, a guarantee that extends to U.S. citizens no matter where in the world they may be. A drone attack robs an individual of any due process opportunity to protest the accusation of terrorism and demonstrate his or her innocence. There is certainly no opportunity to face an accuser when a missile drops out of the sky killing them.

On the other hand, Article III of the Constitution clearly delineates what constitutes treason. This is further codified in Title 18 of the U.S. Code. Specifically, article 2381 makes it a crime to provide “aid and comfort” to the enemy. In conjunction with this, paragraph 2339 extends jurisdiction over the criminal acts no matter where in the world the perpetrators are located. It is their U.S. citizenship that opens them to prosecution, not the locus of their acts.

Using drones to attack terrorists posing an imminent threat, for whom there are no good alternatives for capture and extradition, has been justified and authorized. The fact that the terrorists creating a danger for Americans are themselves American citizens becomes moot in the face of impending danger. It should be stressed that every effort is made to capture and extradite terrorists holding U.S. citizenship. However, just as a police officer domestically will make every effort to capture and arrest a violent criminal, the officer is authorized to use deadly force if that criminal poses an immediate lethal threat. When other means of safe arrest have been exhausted and threat of death is imminent, the officer is justified in using deadly force in self-defense. The same concept holds true internationally. After it has been determined that a drone attack is the only means by which to halt an impending terrorist plan, it cannot suddenly be halted or aborted because one of the perpetrators is an American, especially where a multitude of innocent American lives are at stake.

Assassination or Targeted Killing?

Executive Order 12333 prohibits assassinations, which are more narrowly defined as the killing of an opposing leader for political reasons.[i]  The targeting of terrorists, and more specifically terrorist group leaders, has no political agenda attached to it. Rather, attacking terrorists has the sole purpose of preventing their attacks upon others. President Bush relied upon a 1989 Memorandum of Law distinguishing assassination from lawful targeting of enemy combatants threatening U.S. national security or American citizens, in war or peacetime. In that memorandum, the State Department legal adviser (Abraham Sofaer) argued the right to strike terrorists in any territory from which they launch attacks when the state in which they are located has failed to halt those attacks when requested to do so.[ii]  The argument draws support from the U.N. Charter, article 51, permitting countries the inherent right to self-defense when attacked.[iii]  The U.S. has justified its actions under the concept of self- defense, when other nations harbor terrorists, regardless whether they do so knowingly or innocently, who threaten U.S. citizens, and the host country is unable or unwilling to accord protection as is expected by international standards.  The target’s status is determined by their combatant nature threatening the U.S. and not their physical location within a combat zone.

Arguing against this principle is Mary Ellen O’Connell, law professor at Notre Dame. She argues that CIA employees operating drones are not lawful combatants and thus the missiles they launch are unlawful and tantamount to murder. She further argues that attacks in non-combat areas such as Pakistan can only be legitimate if Pakistan itself is responsible for attacks upon the U.S.[iv]  Ms. O’Connell is joined by Jane Mayer of the ACLU who claims CIA attacks in Pakistan violate international law because the U.S. is not at war with Pakistan. In other words, both Ms. O’Connell and Ms. Mayer claim a terrorist can only be a legitimate target when in a combat zone.  Otherwise, they are inviolate in a neutral country.

These arguments fail due to their faulty foundation. The terrorists who have threatened the U.S. and are therefore labelled as enemy combatants, making them legitimate targets, are pursuing and supporting the goals of a non-state entity. They have allegiance to a transnational network but not any country from which they are operating at any given time. They are non-state actors and it is their support of a violent organization dedicated to destroying America that makes them enemy combatants. They are not representing or acting on behalf of the nation from whence they launch their attacks.

In contrast, CIA operators controlling drones, who are often military personnel, are acting on behalf of the U.S. government. Committing acts of war at the behest of a recognized state defending itself most definitely identifies them as combatants. Being in uniform or a civilian is immaterial, both are covered by a Status Of Forces Agreement when operating on foreign soil. As such, they are clearly more legitimately combatants than stateless terrorists.

To Ms. O’Connell and Ms. Mayer’s argument that attacking terrorists in Pakistan is to attack Pakistan itself, they argue that the world is not a combat zone and battlefield tactics cannot be employed anywhere a terrorist is found.[v]  Again, the argument misses the basic foundation that where a country is incapable of controlling actions within its own territory, such as is the case with Pakistan trying to deal with the Federally Administered Tribal Areas bordering Afghanistan, the U.S. retains the right to defend itself against attacks launched from such an ungoverned area. It would be beneficial for the host country to interrupt these attacks and arrest the perpetrators, holding them for extradition. Failing that, cooperation and approval for superior technology such as drones to achieve the same end is solicited. Pakistan has only occasionally protested drone attacks in its territory, instead quietly approving the program in general as it also targets individuals attacking the Pakistani government. Furthermore, the ACLU’s argument that war-time tactics can only be used in a declared war zone misses the point that the enemy terrorists have not confined themselves to any war zone. The conflict is wherever they are conducting terrorism aimed at the United States.

Author John Yoo sums up the argument that targeted killings can be the best policy in this new type of war initiated with the 9/11 attacks. The enemy is a network, not a nation or a state. He posits the best strategy is to attack the individuals of the network, as there are no armed forces to confront.[vi] President Bush argued that the on-going violence perpetrated by Al Qaeda against the United States encompassed not just by the 9/11 attacks but also including the 1993 attack on the World Trade Center, the 1998 attack on two U.S. embassies in Africa, the 2000 attack on the USS COLE, and then the Al Qaeda attacks in London, Madrid, and Bali all constitute an on-going armed conflict, not individual incidents.[vii]  Therefore, targeted killings as a response fall squarely under the self-defense concept of Article 51 of the U.N. Charter in response to that on-going conflict.

Supporting this concept, the U.N. Security Council adopted measures under its own Chapter VII powers to bar states from financing terrorist organizations, require all member states to prosecute terrorists, deny safe haven to those who do finance or harbor terrorists, and to “afford one another the greatest measure of assistance in connection with criminal organizations.”[viii]

Drones are Easy and Attractive

There are counter-arguments to the expanded use of targeted drone killings. A backlash, referred to as the Hydra affect, asserts that leaders who are killed are quickly replaced by even more followers joining the cause who are more resolute in their beliefs due to the targeting killings of their previous leaders.[ix]  Evidence has also demonstrated that targeting leaders has rarely produced the changes sought or desired.[x]

Those that are not killed sometimes flee to other conflict zones to carry on their fight there. Hundreds of Al Qaeda fighters have reportedly fled Pakistan for Yemen (Al Qaeda in the Arabian Peninsula), Syria and Iraq. Many more have joined insurgent groups in Africa, specifically in Mali and Somalia.[xi]  So, rather than weakening or diminishing terrorist forces, the targeted drone attacks have contributed to a wider dispersal of terrorist influence around the world.

The failed bombing attack in New York Times Square in 2010 is recognized as the first example on U.S. soil of retaliation for President Obama’s increased use of drones overseas. Though the Obama administration refused to acknowledge any connection, the perpetrator stated his motive was revenge for a 2009 drone attack that killed a Pakistani Taliban leader.[xii]  Another author argues that drone attacks have replaced the Guantanamo Bay prison as the top recruiting tool for Al Qaeda today.[xiii]  Though continued use of drone attacks can be linked to increased recruiting for terrorist groups, the alternative is even less acceptable. Halting drone attacks and allowing terrorist attacks to continue is unacceptable. 

But is Targeting Terrorists Legal?

Transnational terrorists today pose a threat similar to that of pirates in previous centuries, being stateless and attacking citizens of multiple nations equally. Just as the first address by the international legal community regarding the use of force by all nations to combat piracy was laid out in the early 17th century, it is time now for international legal rules to recognize the tactic of targeted killing, by whatever means, as a distinct tool for combatting terrorism with internationally recognized limits on its application and repercussions for its abuse.   This necessarily recognizes the nature of the threat of modern transnational terrorism seeking global religious domination as opposed to the political terrorism of the 1970s-1980s that sought ‘only’ to install socialist/communist governments in existing nation states.  The goal of today’s religious extremist terrorism is to dissolve existing nation-states and borders into one global caliphate of extreme beliefs. Consequently, it is a challenge of international dimension and not simply a domestic issue of individual states.

As the technology of targeted killings via the use of drones advances, and their use becomes increasingly accepted as a norm, an international level of common understanding will likely emerge. The international bodies will need to draft international guidelines that adapt the previously accepted standards defining assassination and the prohibitions against it. This serves to remind the international community making use of drones, numbered now in excess of fifty countries, that the drone is merely a tool. Effective as it is, and therefore perhaps tempting to increase its use, the norms separating assassination, extra-judicial and targeted killings still apply.[xiv]

Conclusion

The United States is not at war with any other nation-state. The U.S. is combatting transnational violent extremist organizations whose goals include the destruction of the United States. These terrorists plan and launch their attacks from poorly governed areas where the host nation has little control over their activities. The U.S. is justified therefore under international law to defend itself since host nations are not able to prevent attacks upon the U.S. from their territory.

The U.S. will always prefer to see a terrorist captured and extradited to stand trial for their punishment. There are instances, though, where capture is not possible, or the risk to friendly forces would be too great. Utilizing drone strikes has the triple advantage of low risk to U.S. forces, low cost, and increasing accuracy preventing collateral damage.

Targeting U.S. citizens for drone attacks contravenes constitutional guarantees. The alternative, however, is to risk untold numbers of innocent lives if American terrorists are not interrupted.

End Notes