It’s legal — an open range for U.S. killer drones
The Central Intelligence Agency now has legal permission to kill Anwar al-Aulaqi, a United States citizen. An article from today’s Washington Post explains:
Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations.
(I’m confused by the phrase “special approval from the White House.” Being a building and an inanimate object, I did not know that the White House was capable of giving out approvals. I will assume this means that President Obama gave this approval — why couldn’t the author say this?)
In a recent “This Week at War” column, I asked the following questions about America’s use of killer drones:
Specifically, if it is legal for the CIA to employ Predator drones in Pakistan, Yemen, and Somalia, what about remote reaches of Asia, Africa, Latin America, or the high seas? Can the United States shoot at any sorts of criminal suspects and not just al Qaeda suspects or their allies? What if the target is a U.S. citizen? Why is it legal for drones with missiles to do what an overseas FBI agent with a pistol cannot? Does any suspect deemed “too difficult to apprehend” become legally eligible for a Hellfire missile instead?
Speaking for the U.S. government, Harold Koh, recently a law school dean and now legal adviser to the U.S. State Department, explained why states, including the United States, have very broad authorities to kill people they conclude are threats. Summarizing his conclusions on this issue (see the “Use of Force” section of his speech), Koh says the U.S. government’s legal authority to shoot missiles at people comes from 1) the Authorization to Use Military Force (AUMF) against al Qaeda personnel and their supporters that Congress passed in late September 2001, and 2) a state’s inherent right of self-defense, which authorizes lethal force against all other belligerents anywhere at any time.
What makes someone a belligerent? According to Koh, it is someone who is part of a group that is in armed conflict with a state. Any limitations on the state’s employment of firepower? According to Koh, the state’s use of force must aim at military objectives and the incidental damage of the attack must not be excessive in relation to the military objective.
Applying Koh’s reasoning, it seems as if it the U.S. government could legally answer “yes” to all of the questions I posed above, as long as the government could show the person was part of a group that was in some way hostile to the U.S. Koh sums it up this way:
Some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.
Still, some nagging questions remain:
1) Does this authority only apply outside U.S. territory or could it apply inside the U.S.?
2) Any limitation on “the White House’s” discretion to define what constitutes a hostile group and who is associated with such a group?
3) What happens when (not if) other states, NGOs, and international bodies disagree with the U.S. government’s legal reasoning? Will future former Obama administration officials risk arrest for war crimes when they travel outside the U.S., a risk that presumably hangs over the heads of some former Bush administration officials?
