Eye in the sky: U.S. citizen casualties in the shadow war.

Author:Sylla, Joshua
 
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"Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization?" (1)

  1. Introduction

    In the wake of the September 11, 2001 terrorist attacks, the protection of U.S. national security became the impetus for far-reaching legal action. (2) In response to recent u.S. national security measures, legal scholarship has continuously examined the use of military force, and the legal justifications and constraints surrounding such action. (3) One particular area of this debate focuses on the controversial use of unmanned aerial vehicles (UAVs), or drones, and the legality of carrying out UAV-targeted strikes against alleged members of Al Qaeda throughout the Middle East and Asia-Pacific regions. (4)

    Following the 9/11 attacks, the United States directed hostilities into Afghanistan, engaging the Taliban government and Al Qaeda. (5) Thereafter, the United States extended its use of force beyond Afghanistan, developing a covert program to carry out strikes against terrorist threats in Pakistan and Yemen, and eventually in Somalia under the Obama Administration. (6) Two strikes in Yemen conducted under the obama Administration claimed the lives of three U.S. citizens, raising issues of whether the United States may target U.S. citizens with alleged terrorist connections, or carry out operations resulting in the collateral deaths of U.S. citizens. (7)

    On September 30, 2011, the Central Intelligence Agency (CIA) carried out a drone attack on a convoy traveling in Yemen, killing Anwar al-Awlaki (also spelled Anwar al-Aulaqi) and Samir Khan. (8) The target of the attack was al-Awlaki, a dual U.S.-Yemeni citizen whom U.S. officials had long suspected of encouraging terrorism. (9) The Obama Administration authorized the targeted killing of al-Awlaki in April 2010 after he allegedly became more active in terrorist plots against the United States. (10) Khan, a U.S. citizen living in Yemen who also had terrorist connections, was traveling with al-Awlaki when the CIA engaged his convoy. (11) Less than a month later, a U.S. military strike killed al-Awlaki's son, Abdulrahman al-Awlaki (Abdulrahman), bringing the total of dead U.S. citizens on Yemeni soil to three during the Obama Administration. (12)

    This Note explores whether the United States acted lawfully in carrying out the strikes that killed al-Awlaki, Khan, and Abdulrahman by first examining the evolution of international law and the laws of war. (13) Part II.B traces the development of domestic law in relation to the war on terrorism and what constitutional protections, if any, apply to U.S. citizens abroad. (14) Next, Part II.C brings to light the Obama Administration's justifications for engaging terrorists--including U.S. citizens--through drone strikes. (15) Part II.D examines the context of the United States' use of force against al-Awlaki, Khan, and Abdulrahman. (16) Finally, this Note assesses whether this use of force was proper under international and domestic constitutional law. (17)

  2. History

    1. International Law and Laws of War

      1. Historical Laws of War

        The laws of war consider when one state is legally justified in using force against another. (18) Historically, the laws of war break down into two concepts: jus ad bellum and jus in bello. (19) Jus ad bellum, which modern scholars refer to as "just war theory," examines whether there are proper justifications behind waging war. (20) Traditional principles of jus ad bellum only permit a country to wage war if certain requirements are met: there is a just cause, there is right intention, the state has proper authority and publicly declares war to its own citizens and the foreign state, the war is waged only as a last resort, there is a probability of success, and there is macro-proportionality. (21)

        In contrast, jus in bello, Latin for "justice in war," focuses on actors once war is under way, analyzing whether those involved are fighting justly. (22) For a state to comply with the concept of jus in bello it must satisfy two criteria: micro-proportionality and discrimination. (23) Micro-proportionality limits a state to acting only when the benefits of force outweigh the costs, making them proportional to the military objective. (24) Discrimination requires a state to distinguish between combatants and noncombatants, engaging only the former. (25) Although jus in bello requires consideration of both combatants and civilians, the protection of civilians assumed greater significance as modern warfare placed them at greater risk. (26)

      2. Modern Codifications of International Law

        At the turn of the twentieth century, world powers gathered to codify the laws of war in order to define them more precisely. (27) The most significant codification of jus in bello--commonly referred today as international humanitarian law (IHL)--arises from the 1949 Geneva Conventions. (28) All four of the Geneva Convention treaties protect those who are not actively engaged in combat, with Geneva Convention IV specifically providing for the protection of civilians during wartime. (29) On August 2, 1955, the United States ratified all four Geneva Conventions. (30)

        The Charter of the United Nations (U.N.)--generally considered a codification of the principles of jus ad bellum--sets forth the purposes of the U.N. organization. (31) The U.N. seeks to "maintain international peace and security," and "develop friendly relations among nations." (32) Because of its commitment to international peace, Article 2(4) of the U.N. Charter provides an important restriction on the resort to force, stating: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state...." (33) Thus, Article 2(4) prohibits all use of force except at de minimis levels, such as firing a single bullet across a boundary. (34) The U.N. Charter does, however, provide an exception to this rule in Article 51, which states: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations...." (35) Thus, a U.N. member may only use force against another state if the other state is responsible for an attack against it. (36)

      3. Engaging in Hostilities Under IHL

        1. Civilians and Combatants

          IHL provides protections to all civilians during times of war because civilians are considered absolutely innocent of causing war. (37) With this immunity, however, comes prohibition, as civilians may not participate in the hostility; if they do, they lose immunity for the duration of their participation in the conflict. (38) Lawful combatants are "armed forces of a Party to a conflict" and have a privileged status in that they cannot be prosecuted for engaging the enemy, but can be targeted by the enemy. (39) In contrast, unlawful combatants commit hostile acts during war without having any privilege to participate in combat. (40) Terrorists may only be labeled combatants--lawful or unlawful--if they are located in a zone of armed hostilities. (41)

        2. Type of Armed Conflict

          To invoke IHL, a dispute must rise to the level of an armed conflict--that is, involve more than sporadic violence--otherwise domestic, international criminal, and international human rights law (IHRL) applies. (42) If deemed an armed conflict, the conflict can either be international or noninternational. (43) An international armed conflict is a conflict between states in which traditional IHL applies, namely the "1907 Hague Conventions, the four Geneva Conventions of 1949, custom, and, to those that are party, the [Additional Geneva Protocol I]." (44) A noninternational armed conflict is one between a state and nonstate actor in which, "Common Article 3 of the Geneva Conventions, custom, domestic law, and, to those that are party, the [Additional Geneva Protocol II]" apply. (45) Some scholars consider a third category--internationalized Non-international armed conflicts--for conflicts between states and nonstate actors located in another state, in which a hybrid of international and domestic law applies. (46) The United States has signed, but not ratified, Additional Geneva Protocols I and II; however, the United States regards much of Additional Geneva Protocol I and nearly all of Additional Geneva Protocol II as customary international law, and attempts to comply with both protocols whenever feasible. (47)

    2. Domestic Law and Use of Force

      1. Authorization for Use of Military Force

        One week following the 9/11 attacks, Congress passed a joint resolution entitled Authorization for Use of Military Force (AUMF), permitting the President to attack those responsible for the terrorist acts. (48) Invoking its Article 51 right of self-defense under the U.N. Charter, the Joint Resolution stated that the United States needed to defend itself because "such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States...." (49) The U.N. Security Council responded to the attack nearly a week earlier by passing a resolution reaffirming the same principles of self-defense. (50) The AUMF also contained a provision ensuring its consistency with domestic law by stating the provision "intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution." (51)

      2. Constitutional Protections

        Targeting U.S. citizens abroad implicates the Fourth and Fifth Amendments. (52) These fundamental protections apply to U.S. citizens whether they are located in the United States or abroad. (53) However, an exception to this premise occurs when application of the Bill of Rights outside of the United States is infeasible--that is "impractical and anomalous." (54) Infeasibility depends on a...

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