Drone Group: US Policy

Seeing as though almost all drone activity is monopolized by one country, I’ll be coving the policy of the United States of America for the lethal use of drones. I will look at the legal justifications for targeted killings of foreign nationals by drones, and then establish a working policy for when America uses drones lethally.

There are a few main arguments that America can use to justify the use of drones for targeted killings. First, there is the distinction between unlawful and lawful combatants and how Article 3 of the Geneva Conventions applies to each group. Second, there is the argument centered on Article 51 of the United Nations Charter. Finally, there is the leaked Department of Justice White Paper that outlines the conditions to preform a targeted killing of a United States citizen. Using the guidelines in this paper, it is possible to establish what the strictest use of drones for targeted killing may be.

Under the administration of President George W Bush, a legal argument was made to detain suspected members of al-Qaeda and the Taliban indefinitely without trial, and potentially subject them to “enhanced interrogation techniques.” The argument centered on distinguishing a lawful enemy combatant from an unlawful enemy combatant. A lawful enemy combatant is someone who is fighting the United States and follows a chain of command, openly carries arms, does not blend in with or target the civilian population, wears an insignia or uniform to distinguish themselves from civilians, and follows the rules of war. An unlawful enemy combatant is someone who is fighting the United States and fails to follow the rules of war and violates one or more of the above outlines for a lawful enemy combatant. Distinguishing a lawful enemy combatant from an unlawful one is important because lawful enemy combatants are protected under Common Article 3 of the Geneva Conventions against “(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; …[and]… (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”[1], while unlawful enemy combatants are not. This means that unlawful enemy combatants are not protected against execution and torture, and also do not have the right to not only habeas corpus, but also a trial in general[2].

The process for determining whether a suspected terrorist is an unlawful enemy combatant or a legal one is called a Combat Status Review Tribunal (CSRT). During a CSRT, a suspected terrorist does not have to be present at the whole hearing (due to classified evidence), hearsay evidence is allowed, information collected from “enhanced interrogation techniques” is allowed, there is no appeals process, and the status of the suspect is determined by a panel of three military officers. If a person is declared an unlawful enemy combatant as a result of a CSRT hearing, he/she can theoretically be targeted for killing by a drone strike. I say theoretically because not only are CSRTs are mostly classified, but so are most targets of drone strikes and the administration’s actual justifications.

After this justification, the first important point is that unlawful enemy combatants do not have international protections against being killed after their status is confirmed at a tribunal hearing that they may not be at.

The second argument to be claimed from the legality of lethal drone strikes is based off of the United Nations Charter. Chapter Seven, Article 51 allows for any UN member to respond to an attack out of self-defense[3]. The use of drones by the United States has been justified by the idea that war was declared against it in the form of the 9/11 attacks and that self-defense is authorized. The problem is though, that other than the Taliban government in Afghanistan, there was no single country to target a war against, the enemy resided in places such as Yemen, Somalia, and Pakistan. This prompted the idea that there is a global war against terrorism that blurs the traditional idea of war. According to Former Deputy General Counsel of the Department of Defense for International Affairs at the time, Charles Allen, “war depends on the person targeted, not the existence of armed hostilities”[4].

After this justification, the second important point is that using the UN idea of international self-defense, the United States can carry out a drone attack anywhere, anytime, without warning.

The final main argument for the legality of done killings is taken from how the United States views citizens versus non-citizens and a Department of Justice White Paper that NBC News obtained in early February.

Generally speaking, the United States and every other country views its own citizens as a priority over non-citizens (a government that held the opposite opinion probably wouldn’t remain in power very long). From a legal standpoint, the idea that citizens have more legal protections than non-citizens has been confirmed by Supreme Court rulings most recently and relevantly as the 2006 Hamdi decision. Another example is that when a United States citizen was captured and suspected of being a member of the Taliban, he was taken from Guantanamo Prison and put in civilian court instead of a CSRT.

The Department of Justice White Paper, rumored to be a part of the classified 2010 Office of Legal Council memo justifying the whole United States’ drone program, outlines under what conditions a United States citizen can be targeted and killed by a drone strike. The conditions are that:

“(1) An informed, high-level official of the United States government has determined that the targeted individual poses an imminent threat of violent attack against the United States of America; (2) capture, is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation is conducted in a manner consistent with the four fundamental principles [military necessity, distinction, proportionality, humanity[5]] of the laws of war governing the use of force.”[6]

This justification addresses three concerns: nature of the threat, potential to capture, and due process under the law.

Because of the idea that there is preferential treatment for US citizens versus non-citizens, it can be assumed that the criteria for using drones in a lethal manner is at most stringent equal to that needed to kill a US citizen (although most likely looser). This also shoots down the argument that drones could be used over the United States (also, see Eric Holder’s letter to Rand Paul: http://www.newyorker.com/online/blogs/closeread/2013/03/rand-paul-gets-a-letter-from-eric-holder.html) or, as Charles Allen suggested, a place such as Hamburg, Germany because capture is completely feasible. However, in places such as Waziristan or rural Yemen, capture is not nearly as feasible.

The third important point after this justification is that the criteria for killing US citizens involves an imminent threat, infeasibility of capture, and due process.

Taking these three important points, the overall policy of lethal drone use by the United States comes into focus. Its policy can be said to be that if a person is determined to be an unlawful enemy combatant as a result of a form of due process, their protections under Article 3 of the Geneva Conventions are forfeited. Coupled with international self-defense under Article 9 of the UN Charter the USA has launched, and will continue to launch, lethal drone strikes when there is no feasible option to capture the unlawful enemy combatant.

As a side note, it is interesting to note that these legal arguments by the government are all pertaining to justifying “enhanced interrogation techniques,” or torture, and indefinite detainment. It is against the government’s interest to use lethal drone strikes to kill senior member of al-Qaeda and the Taliban because they are no use to US intelligence agencies dead. It is my opinion that lethal drone strikes are one of the last lines of national self-defense, especially when indefinite detainment and all interrogation tactics are on the table for American intelligence agencies.

James Manning

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[1] http://www.icrc.org/ihl.nsf/WebART/375-590006

[2] http://www.cfr.org/international-law/enemy-combatants/p5312

[3] http://www.un.org/en/documents/charter/chapter7.shtml

[4] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1912635 (Pages 11-13)

[5] http://www.loc.gov/rr/frd/Military_Law/pdf/LOW-Deskbook-2011.pdf (Page 139, II, A)

[6]http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf (Page 16, Section V)