At the end of the 20th century, who would have predicted that within a decade, both the US military and the civilian CIA would be using pilotless aircraft to carry out what they call “targeted killings” in and beyond so-called “war zones”? Who could have conceived of there being more than 260 CIA-orchestrated strikes under the Obama Administration in a country in which we are not at war – Pakistan – resulting in more than 2,300 people being killed, including more than 500 civilians? (These are the figures from the London-based Bureau of Investigative Journalism).
Who could have imagined that American citizens who have never been charged with any crime or tried in any court would be at the receiving end of US drone attacks in another country in which we are not at war – Yemen – including a 16 year old boy born in Colorado? Who would have thought that such attacks would enjoy not just bipartisan Congressional support but broad public approval? Over 83% of Americans approve of the drone strikes according to the February 8 Washington Post - despite the secrecy surrounding them, and the failure of the government to do more than hint at the legal rationale used to justify the killings.
I have been asked to focus on the legal issues surrounding the use of drones – I doubt if any of you will be surprised to hear that, as far as lawyers are concerned, there is no single right answer to the question: ”Are drones legal?” The ACLU’s position is that lethal force may only be used outside of armed-conflict zones when there is an IMMINENT threat of a deadly attack and when nonlethal means are not available. We do not see that these criteria are met by the drone strikes in Pakistan, Yemen, Somalia and Libya. We do not believe that the entire world is a battlefield and we hold that the so-called targeted killing of individuals far from a war zone is unlawful and – and in the case of the targeted killing of Americans like Anwar al Awlaki – unconstitutional.
The Obama Administration’s use of drones has been justified by Harold Koh, formerly a prominent champion of human rights and now the State Department’s leading legal advisor. According to John Brennan, the President’s senior advisor homeland security and counterterrorism, the Obama Administration’s covert actions “remain consistent with our laws and values.”
I would argue that if the drone strikes don’t entirely fall into the same kind of “legal black hole” to which the British high court back in 2002 consigned Guantanamo, they stretch to the breaking point the constraints of both international humanitarian law governing armed conflict and human rights law. The Obama Administration is, in effect, declaring that international law means what it says it means, and that opposing interpretations of that law are – as Bush’s attorney general Alberto Gonzales said of the Geneva Conventions – both “quaint and anachronistic.”
I want to do three things tonight: first, outline some of the key legal arguments supporting and opposing the Administration’s current drone warfare stance; then briefly touch on the legal issues raised by the next phase of fully automated drones which will operate without being attached to any human; and finally say something about the brave new world we are poised to enter as up 30,000 drones (according to a Federal Aviation Administration estimate) are introduced into our domestic airspace.
Let’s start with the confusing legal landscape concerning the use of drones and targeted killings. The first thing to note is that there is a one set of laws governing the drone strikes in the war zones of Afghanistan and Iraq carried out by military special forces – they are bound by the laws of war also known as international humanitarian law (the Geneva Conventions of 1949 and its two Additional Protocols – and the Hague Regulations of 1907) regulating the conduct of hostilities, including the targeting of combatants. Under the laws of war the deliberate lethal strikes now called targeted killings (as opposed to assassinations or executions) can only be carried out against enemy fighters – not civilians - and must have a specific military objective. Such attacks are only lawful if they are not indiscriminate, and do not lead to a disproportionate loss of civilian life.
There is a different set of laws relating to drone strikes carried out by the civilian CIA (sometimes in conjunction with special forces) outside these internationally recognized war zones - they come under international human rights law. The treaties, UN protocols and international standards that make up human rights law stipulate that outside of armed conflict, lethal force is a law enforcement matter that may only be used in self-defense or when strictly necessary to prevent imminent harm to life and when an arrest cannot be undertaken. The UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions require a prompt investigation of “all suspected cases of extra-legal, arbitrary and summary executions.”
However, today, there is no longer any agreement on where the battlefield is, who are appropriate military targets and which kind of law should apply. In his March 25, 2010 speech before the American Society of International Law – which is the only time anyone in the Administration has to date ventured a legal theory for the use of drones – Harold Koh referred to a third set of justifications - what he called “The Law of 9/11.” You may think the “Law of 9/11” which lays out new rules for “detention operations, targeting, and prosecution of terrorist suspects” and for the use of force is a reach beyond international law and own Constitution. Koh denies this and even has some positive things to say about the new and improved Guantanamo. He lays out the Administration’s position as follows:
First, the US is still fighting “a war of self-defense against an enemy that attacked us on September 11, 2001.”
Second, we “work as partners with a consenting host government” in Afghanistan (no other countries are mentioned).
Third, our domestic statute, the 2001 Authorization for the Use of Military Force (AUMF), informed by the principles of the laws of war, is the basis for our detention authority and the use of force, including our lethal targeting of individuals. A brief aside – not only has Congress shown no interest in reining in the executive and invoking the War Powers Resolution, it has expanded the scope of the AUMF in the National Defense Authorization Act of 2012 by broadening the definition of the enemy beyond those responsible for 9/11 – now the vaguely defined “associates” of Al Qaeda who had nothing to do with 9/11 can also be targeted for indefinite detention and death.
Finally, Harold Koh says, targeting individuals for death by drone even if they are far from a battlefield is legal under international law because we carefully consider “the imminence of the threat” as well as the “sovereignty of the other states involved,” and because we limit our attacks to military objectives in our war of self-defense and prohibit attacks that are expected to cause incidental loss of civilian life. “US targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war procedures….our practices for identifying lawful targets are extremely robust…precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination’” – which would be unlawful under our domestic law.
To drive the point home that the US is a force for good in its exercise of “self-defense,” Koh quotes these words from our recent Nobel Peace-Prize winner, the President: “The world must remember that it was not simply international institutions – not just treaties and declarations – that brought stability to a post-World War II world. The instruments of war do have a role to play in preserving the peace.”
So that’s the official government position, out of the mouth of someone who was once a leading defender of human rights. How was it received by the human rights and international law community? There has been a broad consensus that the US government’s “just trust us” position and lack of any kind of transparency has made it impossible to access the degree to which the program adheres to international humanitarian and human rights law.
According to Philip Alston, then the UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions, “a lack of disclosure gives states a virtual and impermissible license to kill.” Alston submitted a report to the General Assembly in May 2010 in which he called Koh’s statement only a “starting point” that doesn’t address the “scope of the armed conflict in which the US asserts it is engaged, the criteria for individuals who may be targeted and killed, the existence of any substantive or procedural safeguards…the existence of accountability mechanisms.” Referring to Article 51 of the UN charter which defines the concept of a war in self-defense, he writes that he is troubled by the US notion of “pre-emptive” self defense, where a threat is not imminent – this, he says, is an “innovative interpretation” of international law.
And where exactly is the battlefield? Maintaining that international armed conflict cannot be said to exist between a state and a non state, and that Al Qaeda and its associates are more like an armed gang than state actors, Alston concludes that drone killings outside of Iraq and Afghanistan cannot be viewed in the context of the laws of war. Under human rights law, targeted killing is rarely likely to be legal. In the words of Human Rights Watch, “the notion…that the entire world is a battlefield in which the laws of war are applicable undermines the protections of international law.”
So many questions remain unanswered. How wide is the global battlefield? How long is the list of targets? And how is it compiled? Why is there more than one “it” – the December 27, 2011 Washington Post reveals that there are two different kill lists that don’t match – one for the CIA and the other for Joint Special Operations Command, making it difficult for Congressional intelligence oversight committees to know exactly what is going on.
Thanks to the February 13, 2011 issue ofNewsweek, we do have a hazy notion of how the CIA targeting process works. In an article called “Inside the Killing Machine,” John Rizzo, the former general counsel of the CIA, revealed information that has made him the target of a leak investigation. He said targets for the list included Al Qaeda fighters and other people who worked in terrorist camps.
Here’s how the process works: lawyers at the CIA’s Counterterrorist Center write a cable asserting that a certain individual poses a grave risk to the US and attaching a short dossier explaining why the person is “ready for prime time.” There is a space for the CIA general counsel – at the time Rizzo – to sign his name and add the word “concurred.” That’s due process under the Law of 9/11.
But what about the February 2012 report by the UK-based Bureau of Investigative Journalism that at least 50 civilians in Pakistan had been deliberately targeted in follow-up strikes when they rushed to help those hit by a drone-fired missile? And the deliberate targeting of at least 20 more in drone strikes on funerals?
It was shortly after this report was released (and largely ignored by the mainstream media) that President Obama spoke for the first time about the drone program – he told a YouTube forum: “:I want to make sure that people understand: actually, drones have not caused a huge number of civilian casualties. For the most part they have been very precise precision strikes against Al Qaeda and their affiliates.”
It is not just international law and American credibility that have been weakened by the Bush-Obama “war on terror” policies. The drone strikes also wreak havoc on US constitutional law. The ACLU has strongly criticized the targeting for death by drone of US citizens. The father of one of them, Anwar al Awlaki. was our client in a case challenging the authority of the executive branch to create a program giving the President a secret, unchecked authority to act as judge, jury and executioner and designate certain citizens for death.
Our position was that the government must disclose why it is putting Americans on the death list. We maintained it should not go forward with such an assassination unless it could demonstrate that the individual represents an imminent threat and there is no other way to stop that threat.
Our case was thrown out of court for lack of standing, and Awlaki was killed by a CIA drone strike in Yemen on September 30, 2012. Another American – Samir Khan - perished in the strike. Awlaki’s 16 year old son Abdulrahman and a young cousin were killed in another drone strike two weeks later.
So how does the Obama Administration justify setting aside the Bill of Rights, an executive order opposing assassinations and a federal law against murder? According to the New York Times for October 9, 2011, there is a secret 50-page legal memo written by two lawyers in the Office of Legal Council (David Barron and Martin Lederman) which states that Awlaki could be legally killed because he posed a significant threat to Americans, was operationally involved with al Qaeda and it was not possible to try to capture him. The fact that he was in Yemen, far from the war zone in Afghanistan, was considered immaterial.
We are suing to get this legal memo. Essentially, the CIA, Department of Defense and Department of Justice have told us that the targeted killing program is so secret that they can’t even acknowledge that it exists, much less hand over any legal justification for it.
We have so far been talking about drone strikes in which there is a human being somewhere in the mix – calling down strikes in the field, pushing a button thousands of miles away. To the extent that these human beings are members of the military involved in an active war zone, they are subjected to and protected by the laws of war.
It’s different for the CIA. Because they are not considered lawful combatants under the laws of war, civilian CIA officials, unlike uniformed soldiers, do not have immunity from potential prosecution for injuries, deaths and the destruction of property. In some instances, they could be charged with war crimes by countries in which the strikes occur.
What if there are no human beings in the mix? I now want to turn to unknown territory - the legal terrain surrounding the soon-to-be –deployed totally automatic drones.
The January 26, 2012 Los Angeles Times featured an article about the Navy’s new X-47B drone which can be flown autonomously by onboard computers. Designed to land on an aircraft carrier, it marks a “paradigm shift in warfare…it could usher in an era when death and destruction can be dealt by machines operating semi-independently.” The plan is to deploy it in action by 2013. A week later, the LA Times reported on a new fully robotic submarine also being developed by the navy which would be operated entirely by the algorithms programmed into its computers.
Drones that are in what the military refers to as the OODA loop (observe, orient, decide and act) may be programmed to make lethal combat decisions without human input thanks to advances in Artificial Intelligence. Here, in legal terms, we are flying totally blind. Check out the US Air Force’s Unmanned Aircraft Systems Flight Plan, 2009 – 2047, which describes how autonomy will be implemented over the decades, from nano plans using swarm technology to detect threats and targets through artificial intelligence, image processing and sensory information to tanker sized planes. Some of the document is redacted, but most of it has been unclassified. It states: “Ethical discussions and policy decisions must take place in the near term in order to guide the development of future UAS capabilities, rather than allow the development to take its own path apart from this critical guidance.”
According to a specialist in the law of war, Professor Ken Anderson, there is little sign that this is being done as the technology runs swiftly ahead of any attempt to grasp its legal implications. He gave a lecture last month at Harvard Law School in which he wondered how the two basic principles of the law of war - discriminating between lawful targets and everyone else and minimizing collateral damage - could be integrated into algorithms, and who would be held responsible for war crimes if decisions were made not by the military but by a code that drives weapon – the programmer? The soldier who pushed a button to send it on its fully automated way?
If the US convinces itself that it is acting ethically in taking human beings out of the loop and its codes are legal under international law, what about the systems of other countries – some 50 of which now have drone technology? We have already opened Pandora’s box with our targeted killings – what happens if - or is it when - other countries follow our example and start targeting people who are somehow deemed to be enemies across any border they like without any transparency or accountability?
If this isn’t enough to worry about, we here in the US now face the prospect of being constantly watched by drones that can hover 20,000 feet above us, tracking people and vehicles and eavesdropping on our electronic communications. Just a few days after President Obama for the first time publicly acknowledged the existence of the military drone program, Congress with bipartisan support spearheaded by the drone lobby, passed legislation that will fill American airspace with as many as 30,000 drones by the end of the decade, according to the Federal Aviation Administration. Both Massachusetts Senators were in the 75-20 majority supporting the legislation while all the Massachusetts House Members – and trade unions - opposed it, in a vote of 248-169.
The $63.4 billion FAA Reauthorization and Reform Act of 2012 integrates a “public unmanned aircraft system” into the national airspace system. Currently, domestic drones operated by the military, border patrols and some 300 public agencies, including law enforcement, are restricted to flying in military airspace, over borders or at low altitude. They have been used, we are told, to spot illegal border crossers, detect drugs and fight terrorism. Soon, after being tried out on test ranges operated by NASA and the Pentagon, they will have the freedom of the skies – and another of our freedoms will be history.
In the years ahead, drones are going to be big business and a big threat to privacy. There will be privately owned drone, and drones managed by police departments, some of which will be military drones, coming home from the wars. According to the LA Times for February 13, the Pentagon is working with the FAA to ensure that US airspace is opened up to combat drones.
Assuming some kind of restrictions are put in place, how will it be possible to enforce any kind of oversight over what drones are doing or even know who is controlling them? Are we destined to live in a country in which both public and private drones will monitor us and capture and interpret large amounts of data about our movements? Do we want law enforcement to be in a position to create detailed dossiers on where we go and what we do, including our presence at political rallies? The problem is not only that technology is outstripping privacy protections. The problem is that existing law permits police to monitor whatever is in “plain sight” without a warrant – even if it is from 20,000 feet away
The Association for Unmanned Vehicle Systems International – which partnered with dozens of Congressmen to push for the FAA legislation – recently produced a powerpoint showing that as far as its bottom line is concerned, the sky is the limit. But there was one potential roadblock. Under a section called “Challenges facing UAS” (that’s Unmanned Aircraft Systems) the lobbyists listed “civil liberties.” How to ensure that civil liberties are not obliterated by the stampede for profits is the challenge facing us.