JURIST Contributing Editor Gabor Rona, International Legal Director of Human Rights First, says that the Obama administration must place an enhanced focus on disclosing its drone policy…

Our government executes death sentences against people who have not been charged, tried or sentenced in a judicial process — or met on an actual battlefield. Officials from the administration of US President Barack Obama have been drip-feeding defenses of the practice but have not provided nearly enough detail to truly justify it. Meanwhile, the judicial branch has consistently rejected efforts to force the administration to say anything more about the practice than it wants to. That is a shame because, in a democracy governed by the rule of law, we, the people, are surely entitled to know who our government is extrajudicially killing in our name, and why.

On January 2, 2013, Judge Colleen McMahon of the US District Court for the Southern District of New York offered a bittersweet recognition of all this in a Freedom of Information Act (FOIA) case brought by the American Civil Liberties Union (ACLU) and the New York Times, which sued for disclosure of the legal memoranda produced by the Obama administration to justify its drone war. The plaintiffs’ argument was that the government had effectively waived its defense that the classified materials were subject to FOIA exemptions by having publicly disclosed the existence and some details of the classified drone program. McMahon disagreed, noting how paltry those public disclosures have been in comparison to what a studied analysis and debate would require: “a far cry from a legal research memorandum,” “cryptic and imprecise,” wrote McMahon. Essentially, the government is not required to “show more leg” because it has not voluntarily shown enough of it.

While making explicit reference to a “catch-22” and the “Alice-in-Wonderland” nature of her ruling, she said that she was constrained by law from preventing the government “to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.”

That did not, however, prevent McMahon from volunteering an observation:

More fulsome disclosure of the legal reasoning on which the administration relies to justify the targeted killing of individuals, including US citizens, far from any recognizable “hot” field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated.

Meanwhile, a recent New York Times article highlights that after four years of dealing death by drone, the Obama administration was suddenly motivated to establish more detailed rules and procedures out of pre-election fears that a Romney administration could not be trusted to use this power judiciously. Actually, what the lack of detailed rules and procedures shows is simply that — a lack of detailed rules and procedures, reflecting the administration’s “just trust us” attitude.

Into this mess comes the account of a drone attack that challenges the administration’s mantra of “legal, effective and necessary.” Adam Baron, writing for McClatchly Newspapers, reported on a November 7, 2012, a Central Intelligence Agency (CIA) drone killing in Yemen of an alleged al Qaida adherent, Adnan al Qadhi. Baron’s account contains no denial of al Qadhi’s al Qaida sympathies. Instead, it asks why this man, who has previously been arrested and was well-known in his community — a community that, by the way, is nine miles from the capital and is home to the former president and much of the military’s leadership — was extrajudicially executed instead of arrested. By contrast, the Washington Post recently reported the arrest in Yemen of another al Qaida suspect, Suleiman Hassan Mohammed Murshed Awad, who Yemen’s Interior Ministry called “one of the most dangerous criminal elements in al Qaida who is involved in killing security men and joining others in terrorist attacks on foreign targets in Sanaa.”

It is true that under the law of armed conflict, members of opposing armed forces and even civilians who are directly participating in hostilities may be targeted. However, putting aside the fundamental question of whether the US is even at war in Yemen, or whether Adnan al Qadhi meets targeting criteria as an enemy in a conventional conflict, consider what then-Pentagon General Counsel Jeh Johnson recently said at Oxford University:

[W]e refuse to allow this enemy, with its contemptible tactics, to define the way in which we wage war. Our efforts remain grounded in the rule of law. In this unconventional conflict, therefore, we apply conventional legal principles — conventional legal principles found in treaties and customary international law … We employ lethal force, but in a manner consistent with the law of war principles of proportionality, necessity and distinction.

The key here is the principle of military necessity, meaning that the use of force must be necessary to the accomplishment of a legitimate military objective. In a conventional conflict, military necessity is pretty much assured where combatant confronts combatant on the battlefield. The American and German soldiers who met on the beaches of Normandy were not required to ask their opposite numbers if they wished to surrender before opening fire on them.

However, in conflict against non-state actors that looks much more like a hybrid between war and law enforcement (and occurs outside of a traditional battlefield), it is not so simple. In fact, it is — and should be — difficult to make the case that the “conventional legal principle (of military necessity) found in treaties and customary international law” is satisfied in targeting someone who is eminently detainable outside of a traditional battlefield. Indeed, Baron’s account notes that “American counterterrorism officials have painted drone strikes as a tool of last resort, utilized only when targets represent an imminent threat and are nearly impossible to take out by other means.” That would be a proper rule of engagement under these unconventional circumstances.

Because that is a correct rule of engagement under international law, the targeted killing of al Qadhi tells us much more than could any mere dispute about whether someone was correctly or incorrectly labeled a bad guy. It tells us that the Obama administration has a long way to go before it can assure the American people, the international community and itself that its targeted killing practices are legal.

Legality, however, is not the only issue. Baron notes that the strike has sown resentment, indeed, “local outrage” in Beit al Ahmar. He says that al Qadhi’s brother openly speaks of revenge. “Any action has a reaction. Any violence will breed violence,” another local is reported to have said. Even if the strike was legal, it is quite something else to say that the killing of Adnan al Qadhi is a net advance in the fight against terrorism.

The dictates of law and sound national security policy lead to several questions about US targeted killing, questions that should be put to Chuck Hagel and John Brennan in their confirmation proceedings for secretary of defense and director of the CIA.

First, should an inherently non-transparent agency such as the CIA, whose traditional legitimate role is intelligence gathering, and whose forays into killing have always ended in tears for human rights as well as for legitimate US policy interests, be involved in killing at all?

Second, does the US targeted killing program risk creating a dangerous precedent in other countries that have this technology, such as Iran, Russia and China, or others that will soon have it? Is the US prepared to reap what it sows, or will it add one more basis for others to accuse it of hypocrisy when it criticizes other countries’ targeted killing practices (as it used to in the case of Israel before 9/11)?

Third, with whom is the US at war? With everyone who would do us harm, or against all terrorists, including those who have no intention of targeting Americans? On what basis are we conducting targeting operations in Somalia and other countries where other assorted bad guys are found? What is the asserted legal basis for concluding that we are “at war” with disparate groups (such as Al Shaabab) simply because they have some association with al Qaeda? In international armed conflict, concepts of co-belligerency apply to states, but to simply transplant that concept into wars against non-state actors is presumptuous, to say the least.

Fourth, even where the US is at war, will targeting continue to be justified by assertions that the target was a “terrorist,” “insurgent” or “militant,” even though those terms have no significance under international law? What of the requirement that the target be either a member of the enemy’s armed forces or a civilian directly participating in hostilities?

Fifth, what was the basis upon which you (Brennan) once declared that civilian casualties are few to none? Is it because of a sleight-of-legalistic-hand determination that any dead, military-aged male in a strike zone is presumed to have been targetable?

Finally, what about the alternatives to targeting? Are prosecution, sanctions and addressing the causes conducive to terrorism not the preferable strategies? Is killing not more harmful than helpful, especially where it results in the death of innocents? Is it not true that very few countries support US targeted killing policy and that the resulting diminished American moral authority on human rights elsewhere has serious national security consequences at home?

More broadly, democracy cannot survive where judges are constrained by “Alice-in-Wonderland catch-22s” from requiring the government to explain why it can kill people without charges or trials. The Obama administration needs to step up with increased transparency and much greater detail on drone policy. Only then will we know whether US targeted killings are legal and whether they make us safer or place us at greater risk.

Gabor Rona is the International Legal Director for Human Rights First. Prior to joining Human Rights First, he was Legal Advisor in the Legal Division of the International Committee of the Red Cross (ICRC). Rona has extensive experience in international criminal law and international humanitarian and human rights law in the context of counter-terrorism policies and practices. He is a frequent JURIST contributor.

Suggested citation: Gabor Rona, Drip-Feeding the Drone News, JURIST – Hotline, Jan. 16, 2012, http://jurist.org/hotline/2013/01/gabor-rona-drone-news.php