After months of controversy, the Obama administration has finally begun laying out the legal justifications for its expanded use of unmanned aerial vehicles ("UAVs" or "drones") in targeting terrorists.
Since 2002, the United States has used drones to conduct targeted killings of terrorist operatives overseas. The programs, conducted by both the Department of Defense and the Central Intelligence Agency, have been carried out in Iraq, Afghanistan, Somalia, and Yemen. Despite the effectiveness of UAVs, their use has not been without criticism.
Critics have argued that from a policy-standpoint, the use of drones is counterproductive because more than one third of those killed by drones are civilians. One academic has gone so far as to suggest that CIA drone pilots could be categorized as war criminals under the Geneva Convention. But perhaps most controversial has been the refusal of both the Bush and Obama administrations to lay out the legal justification for the program.
Among the concerns of attorneys for civil liberties groups is the potential that the drone program may be used to target American citizens abroad. Testifying before a Congressional Intelligence committee, Director of National Intelligence Dennis C. Blair acknowledged that government agencies may kill U.S. citizens abroad who are involved in terrorist activities if they are "taking action that threatens Americans."
In response to the public criticism and legal challenges, the administration has been promising to explain the legal justifications for its use of drones. And finally, in a keynote speech at the American Society of International Law's annual conference, that promise was fulfilled.
Harold Koh, a vocal critic of Bush administration's counter-terrorism policies, now serving as legal adviser to the Obama administration, offered the first public legal justification for its drone attacks in Afghanistan, Pakistan, Yemen, and Somalia. As Koh explained:
"the U.S. is in armed conflict with al-Qaida as well as the Taliban and associated forces in response to the horrific acts of 9/11…and may use force consistent with its right to self-defense under international law….Whether a person becomes a threat depends on various considerations, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses."
While no specific targets have been named, there a few likely candidates for what has been pejoratively termed "extrajudicial killings." Adam Gadahn, an American convert to Islam is currently serving as a spokesperson for al Qaida, who has for several years called for attacks on U.S. military and civilian targets. Omar Hammami, an American from Daphne, Alabama, has joined up with al Shabaab in Somalia and is currently assisting as a top recruiter for the terrorist group both at home and abroad. Anwar al-Awlaki, a radical imam from New Mexico is now in hiding in Yemen, after having been connected to the September 11th attacks, the Fort Hood shooting, and most recently, Jihad Jane.
Questioning the legal justification for the drone attacks, and highlighting the potential for use on American citizens, groups such as the American Civil Liberties Union have come out swinging. Back in January 13, 2009, the ACLU filed a request under the Freedom of Information Act seeking:
"information about the legal basis in domestic, foreign, and international law for the use of drones to conduct targeted killings. We request information regarding the rules and standards that the Armed Forces and the CIA use to determine when and where these weapons may be used, the targets they may be used again, and the process in place to decide whether their use is legally permissible in particular circumstances, especially in the face of anticipated civilian casualties. We also seek information about how these rules and standards are implemented and enforced."
After having received no response from administration officials, the ACLU filed suit on Tuesday, demanding that a court order the government to comply with the FOIA request.
While Koh's speech is unlikely to satisfy critics of the program, it is the first step in what will likely be a lengthy public debate on the legality and efficacy of unmanned drones in the war on terror.