Mary Ellen O’Connell
In the wake of 9/11 the United States adopted a new approach to countering terrorism, an approach made possible by two developments: adding missiles and bombs to unmanned drones and asserting the legal right to use these weapons outside combat zones.
Prior to 9/11, the United States had used unmanned aerial vehicles only for reconnaissance. Hellfire missiles were then attached to drones and deployed to kill people in Afghanistan and beyond. In 2002, the CIA used a drone to kill six men in a vehicle in Yemen, a country not connected with 9/11. One was a 23-year old American. The intended target was Abu Ali Al Harithi, wanted for the attack on the USS Cole in 2000. Until his killing, the FBI had been in charge of his case. FBI agents, in cooperation Yemeni authorities, were having success at solving the case. The United States did not explain why the decision was made to kill the suspect or why the CIA was allowed to carry out killings even though it had been banned from that role following Vietnam and the dirty wars of the 1980s.
WHAT WE DON’T KNOW
We know what works in counterterrorism and what international law requires: law enforcement, not targeted assassination. In 2001, U.S. Ambassador to Israel Martin Indyk stated on Israeli television in connection with Israeli targeted killing of suspected terrorists: “The United States government is very clearly on the record as against targeted assassinations. They are extrajudicial killings, and we do not support that.”
Why the change in U.S. policy? There is much we do not know. A Justice Department memo purporting to justify the policy of targeted killing remains classified. Prior to the recent election, the Obama administration reportedly made an attempt to write rules restraining a potential President Romney. Critical questions remain unanswered: On what legal basis was the decision made to conduct targeted killings? Why has this turned into a relentless, far-flung policy that has cost thousands of lives in the past decade?
WHAT WE KNOW
What we do know is that the U.S. chose drones for Yemen because drones can conduct prolonged surveillance before attacking. In 2002, the CIA apparently did not want to kill any women and waited until Al Harithi was in a vehicle with only men.
In 2004, similar killings began in Pakistan but the concern over killing women and children no longer applied. CIA-operated drones were chosen again because of their surveillance capability and because Pakistan does not permit foreign militaries to operate on its territory.
Although drones clearly launch military ordnance, their use has been cast as something other than a military operation. The U.S. made this argument with respect to the use of drones in the 2011 Libya War. State Department Legal Adviser Harold Koh argued that President Obama needed no Congressional authorization for American participation in the war because the U.S. was mostly deploying drones.
Under international law there is no such thing as worldwide war. And targeted killing can’t be justified as self-defense.
At other times, however, Koh has argued that the legal basis for killing members of al Qaeda and “associated forces” is the existence of a worldwide war against terror. Under international law there is no such worldwide war, as I have argued in What is War? An Investigation in the Wake of 9/11. Koh has also argued, contradictorily, that targeted killing is justified as self-defense. It is not.
AN EXPANDING ZONE OF WAR
In this era of human rights, people everywhere should have expected to see the zone of peacetime rights expand. Instead we have seen an expanding zone of war where the fundamental right to life is constrained.
Drone attacks are justified in a recognized war zone such as Afghanistan, but not beyond. Instead of respecting this distinction, the U.S. has asserted that a war zone exists and military force may be used wherever suspects are located or whenever an “imminent” attack is to be prevented, without regard for legal justification or supporting evidence.
The arguments for drones continue to mutate as the technology advances to ever more powerful killing machines: Predators, Reapers, and now the Avenger. Secretary of Defense Leon Panetta announced on November 20, 2012, that the Pentagon plans to expand the use of drone attacks in Libya, Mali, and Nigeria. He said that al Qaeda has “metastasized to other parts of the global body.’’ Now the policy of targeted killing with drones is spreading to other parts of the globe.
Mary Ellen O’Connell is the Robert and Marion Short Professor of Law at Notre Dame Law School and Research Professor of International Dispute Resolution at Notre Dame’s Kroc Institute for International Peace Studies.