Lethal Use of Drones: When the Executive Is the Judge, Jury, and Executioner.

Author:Sterio, Milena
Position::Essay
 
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The United States began using drones to conduct targeted killings in the wake of the terrorist attacks on September 11, 2001. President George W. Bush authorized dozens of drone strikes against terrorism suspects, and President Barack Obama continued this practice and actually expanded the scope of the American use of drones (Rohde 2012). According to media accounts, President Donald Trump has also favored using drones to conduct targeted killings, and his administration has proposed loosening some of the policy restrictions on their use that were put in place under the Obama administration (Savage and Schmitt 2017). Drones have been used under all three presidents not only in traditional arenas of war, such as Afghanistan, Iraq, and Libya, but also against terrorism suspects found in countries such as Pakistan, Somalia, and Yemen without any declaration of armed conflict. In fact, in the latter set of countries, drones have been used in counterterrorism operations and operated through a covert program run by the Central Intelligence Agency (CIA) (A. Boyle 2012). Because of the covert nature of CIA-led drone operations, unanswered questions remain regarding the U.S. targeting policy, the reliability of intelligence information underlying targeting decisions, as well as any meaningful oversight by other governmental or judicial bodies. In addition, the CIA use of drones to conduct targeted killings raises important domestic and international law issues.

This article begins by discussing the development of the U.S. use of drones to conduct targeted killings. Next it discusses relevant domestic law issues and then international law issues related to the lethal use of drones, before considering the applicability of human rights law to the use of drones. I conclude that the U.S. use of drones to conduct targeted killings has raised problematic issues under domestic, international, and human rights law, but that, in light of limited information available regarding such drone strikes, it is difficult to fully assess the program's compatibility with all applicable laws. In addition, I argue that the covert nature of the CIA drone program and the lack of meaningful oversight regarding specific targeting operations have been detrimental to the human rights values of a democratic society such as the United States.

Use of Drones for Targeted Killings

Drones, or unmanned aerial vehicles, are remotely piloted vehicles, which the United States has used to conduct both surveillance and lethal strikes through targeted killings (Sterio 2015a, 2015b). Although the use of drones for surveillance purposes can raise difficult legal questions, this article focuses on the use of drones to conduct targeted killings, which poses complex issues under domestic, international, and human rights law. In addition, it should be noted that the United States has operated two separate drone programs: a publicly acknowledged one, directed by the Pentagon and Joint Special Operations Command in declared theaters of war, such as Afghanistan, Iraq, and Libya, and a covert one commanded by the CIA and utilized in counterterrorism operations in countries such as Pakistan, Somalia, and Yemen (A. Boyle 2012). The latter program has raised a multitude of questions regarding its scope and its compatibility both with domestic and international law as well as with human rights law. Thus, this article focuses primarily on the CIA drone program to conduct targeted killings.

Although the use of drones to conduct targeted killings originated in the wake of terrorist attacks in September 2001 during the presidency of George W. Bush, this practice was embraced and expanded during the Obama administration (Mayer 2009). As one commentator noted, "Under Obama, drone strikes have become too frequent, too unilateral, and too much associated with the heavy-handed use of American power" (Rohde 2012). Because of the CIA drone program's covert nature, little information has been made publicly available regarding the program's specific contours. In addition, the program has had practically no oversight, despite increasing calls for greater transparency and accountability (Sterio 2015a, 2015b). In 2014, a United Nations Human Rights Council expert panel on the use of armed drones and international law expressed clear consensus around the need for greater transparency and accountability for any government that chooses to use drones (Rogers 2014). At the domestic level as well, concerns have been raised regarding the covert nature of the CIA drone program. In June 2014, a bipartisan panel of experts condemned the "long-term killing program based on secret rationales" and recommended that most drone operations be shifted from the CIA to the Pentagon (Mazzetti 2014). Human rights groups, such as the American Civil Liberties Union (ACLU), have engaged in complex litigation with the U.S. government and the CIA through which the ACLU has requested drone-related information under the Freedom of Information Act of 1967 (Vladeck 2013).

Although the U.S. government, including the CIA, has publicly acknowledged the existence of a drone program and its use to conduct targeted killings and has provided some information on the drone program through a policy paper, many questions remain unanswered, and little oversight of the drone program exists. As I have noted elsewhere, the government has argued that we should trust the president on this important national security issue. However, "in this case, trusting the President implies that he forms the judge, jury, and executioner regarding terrorism suspects who may be targeted via drone strikes" (Sterio 2015b, 471). This type of unlimited power vested in the executive branch and potentially resulting in the loss of life is contrary to the foundations of any democratic society. As this article argues, the CIA drone program should be subject to more robust oversight procedures by an independent court or panel, to which the government would need to present meaningful intelligence information in order to justify each proposed lethal strike. In addition, the CIA drone program raises a multitude of complex legal issues under domestic, international, and human rights law. The discussion in subsequent sections highlights some of these issues; however, because of the covert nature of the CIA-operated drone program, it remains difficult to assess the program's compliance with domestic and international law norms.

Domestic Law Issues

In order to remain lawful under domestic law, the CIA-operated drone program would have to comport with both the U.S. Constitution and relevant federal statutes. Jamie Kleidman (2010) has argued that the U.S. Constitution authorizes covert action, such as the CIA drone strikes. Kleidman reaches this conclusion based in part on the argument that drone attacks are conducted as part of the nation's inherent right of self-defense and as such "fall under the types of activities that the framers thought would be necessary to protect the U.S." (362). In addition, Kleidman has argued that both the legislative branch and the executive branch have concurrent authority to authorize covert actions, such as drone strikes. Moreover, because the Constitution provides that the president serve as commander in chief of the armed forces, so long as covert drone operations are congressionally authorized via statute and used as part of the so-called war on terror, the president has the authority to order such drone strikes (367-68). Kleidman claims that, absent congressional authorization, the president may have independent constitutional authority to order drone strikes (368). However, even if one embraces Kleidman's view that the Constitution allows the president or the president pursuant to congressional authorization to order lethal drone strikes, such constitutional delegation of authority does not insulate the executive branch from oversight and accountability. Unlimited delegation of lethal authority to the executive branch, even if such delegation is constitutionally permissible, is detrimental to the fundamental values of a democratic society, such as the protection of individual freedom and the protection of life.

In addition to being permissible under the Constitution, drone strikes must comply with federal law. The U.S. government, under both the Bush and the Obama administrations, has argued that drone strikes are congressionally authorized under the Authorization for Use of Military Force (AUMF) of 2001, a statute passed in the wake of the attacks on September 11 (U.S. Congress 2001; Vogel 2011, 107-8). The Trump administration has thus far indicated that it agrees with this approach (Savage and Schmitt 2017). In order to prevent any future acts of international terrorism against the United States, the AUMF permits the use of force against "those nations, organizations, or persons" that aided the attacks (U.S. Congress 2001). The Bush and Obama administrations argued that organizations such as al-Qaeda and the Taliban constitute an ongoing threat to the safety of the United States and that eliminating such threats via drone strikes, authorized by the AUMF, is a means to prevent future acts of international terrorism (Vogel 2011). The Trump administration has embraced this broad view of the AUMF (Savage and Schmitt 2017).

Many have criticized this expansive interpretation of the AUMF. Scholars have pointed out that this type of broad interpretation would place almost no limitations on the president's authority to wage the so-called war on terror (O'Connell 2012). Moreover, scholars have asked questions regarding the link between current terrorism suspects targeted via drone strikes and al-Qaeda and Taliban leaders responsible for the attacks of September 11: "Accepting the AUMF as authorization for the use of lethal force by the United States against those responsible for the attacks of September 11 does not amount...

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