Is it legal to use Uninhabited Aircraft Systems (UAS) technology to target and kill people suspected of terrorist activities? The short answer: it depends. The ever-expanding technology used in combat, married with the transnational arena in which wars are now waged has compelled lawmakers to reconsider traditional customs and laws that govern war. The interplay between international human rights law, military law, and the laws applicable to the use of inter-state force have been a topic of heated debate in recent years, especially in the context of the United States’ national security practices.[1] According to the U.N. Charter, a state is not allowed to use force against another state unless it is authorized by the Security Council or is in the context of self-defense.[2] The Authorization for the Use of Military Force (AUMF), a statute passed by Congress days after the September 11 attacks, provides the President an exclusive right to “to use all necessary and appropriate force” in pursuit of those responsible for the terrorist attacks.”[3] Do these legalities work in conjunction, or is the nature of transnational warfare redefining traditional standards and legal customs? The controversy surrounding targeted drone attacks against U.S. citizens abroad engaged in terrorist activities has been at the forefront of this debate.
Anwar al-Awlaki was the first United States citizen targeted and killed in a United States-led drone strike, which occurred in Yemen in 2011. According to government officials, Anwar al-Awlaki was a “key figure in al-Qaeda in the Arabian Peninsula (AQAP), [and] he had played a “significant role” in plots to blow up US airliners and had sought use poison to kill US citizens.”[4] Anwar al-Awlaki also became the first United States citizen added to a list of suspected terrorists whom the CIA had executive authorization to kill.[5] Paul Gimiliano, a CIA spokesman interviewed about the matter stated that the “agency conducts its counterterrorism operations in strict accord with the law.”[6] An additional CIA spokesperson added that:
[Anwar al Awlaki’s] working actively to kill Americans, so it’s both lawful and sensible to try to stop him.” The official stressed that there are “careful procedures our government follows in these kinds of cases, but U.S. citizenship hardly gives you blanket protection overseas to plot the murder of your fellow citizens.”[7]
Since the drone strike on Anwar al-Awlaki, the United States government continues its “drone war” against suspected Al-Qaeda radicals, and these operations have sparked an ongoing conversation among lawyers, academics, policy makers and activists as to what constitutes a “legal” drone strike and what the repercussions of these missions are having on both the domestic and international legal community. Lawyers for the Obama Administration argued that AUMF is a congressional act that allows the president to “kill an American citizen without trial in Yemen” in accordance with a global war against al-Qaida.[8] Not everyone contends to this notion, and many have harshly criticized AUMF’s ambiguity especially when drone attacks have led to the deaths of innocent civilians.
In April 2015, New York Times journalist Peter Baker wrote about the press conference President Obama held at which he apologized on behalf of the United States government for a CIA drone strike that occurred in January 2015, which resulted in the death of Warren Weinstein, “an American held hostage by Al Qaeda since 2011” and Giovanni Lo Porto “an aid worker [who] was kidnapped in Pakistan in January 2012.”[9] President Obama apologized to the nation and to the families of the victims stating that “As president and as commander in chief, I take full responsibility for all our counterterrorism operations.”[10] Baker contends that this tragic accident has led the government to conduct reviews of the operation to determine the mistakes which could lead to a “broader rethinking of Mr. Obama’s approach to fighting Al Qaeda.”
In the aftermath of this incident, some members of Congress criticized the Obama Administration, arguing for more transparency regarding CIA drone strikes and intelligence gathering.[11]Additionally, human rights organizations such as Amnesty International have criticized the entirety of United States drone operations. Amnesty International’s Naureen Shah, responded to President Obama’s apology by stating: “Today’s demonstration of transparency is a welcome step, but apology and redress should be available for all civilians killed in U.S. drone strikes, not just Americans and Europeans.”[12] Radical transnational actors permeate and predominate modern wars, making the discussion concerning the legality of drone warfare of vital importance.
It is crucial that policy makers, lawyers, academics, and activists continue the debate over the “legality” of drone operations. Traditional standards and customs that define “the laws of war” such as the UN Charter and AUMF should be consistently analyzed in accordance with the dynamic and evolving technology that has come to define modern day warfare.
[1] Coleen Rowley, Legality of Drone Warfare or Illegality of Drone Assassination? Let a Real Debate Begin!, The Blog (May 5, 2015 10:59 AM), http://www.huffingtonpost.com/coleen-rowley/-legality-of-drone-warfar_b_7210116.html?1430826956
[2] Jonathan Masters, Targeted Killings, Council on Foreign Relations (May 23, 2013), http://www.cfr.org/counterterrorism/targeted-killings/p9627
[3] Id.
[4] Frank Gardner, Islamist cleric Anwar al-Awlaki killed in Yemen, BBC News: Middle East (September 30, 2011), http://www.bbc.com/news/world-middle-east-15121879
[5] Greg Miller, Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill, The Washington Post: World, (April 7, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/04/06/AR2010040604121.html
[6] Id.
[7] Id.
[8] Spencer Ackerman, US cited controversial law in decision to kill American citizen by drone, The Guardian (June 23, 2014) http://www.theguardian.com/world/2014/jun/23/us-justification-drone-killing-american-citizen-awlaki
[9] Peter Baker, Obama Apologizes After Drone Kills American and Italian Held by Al Qaeda, NY Times: Asia Pacific (April, 23, 2015) http://www.nytimes.com/2015/04/24/world/asia/2-qaeda-hostages-were-accidentally-killed-in-us-raid-white-house-says.html?action=click&contentCollection=Asia%20Pacific&module=RelatedCoverage®ion=Marginalia&pgtype=article
[10] Id.
[11] Id.
[12] Elias Groll, Yochi Dreazen, Botched U.S. Strike Highlights Risks of Obama’s Drone War, Foreign Policy Report (April 21, 2015) http://foreignpolicy.com/2015/04/23/botched_us_drone_strike-_kills_two_western-_hostages/
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