Keeping up with the Drones’

by Deborah Pearlstein

Internal debate inside the Administration must be heating up, because someone in D.C. is in a leaky mood. McClatchy yesterday released a story on U.S. targeting operations billed as the “first independent evaluation of internal U.S. intelligence accounting” of such operations. The report is based substantially on classified reports covering most (not all) of the drone strikes carried out by the intelligence community (as opposed to the Defense Department) in 2006-2008 and 2010-2011. Among the findings:

At least 265 of up to 482 people who the U.S. intelligence reports estimated the CIA killed during a 12-month period ending in September 2011 were not senior al Qaida leaders but instead were ‘assessed’ as Afghan, Pakistani and unknown extremists. Drones killed only six top al Qaida leaders in those months, according to news media accounts. Forty-three of 95 drone strikes reviewed for that period hit groups other than al Qaida, including the Haqqani Network, several Pakistani Taliban factions and the unidentified individuals described only as ‘foreign fighters’ or ‘other militants.’

The McClatchy piece contends that such statistics are necessarily at odds with Administration statements that its targeting operations were limited to senior leaders of Al Qaeda and allied groups. This seems wrong; I haven’t understood the Administration’s position to be that it would only target senior leadership. Indeed, that was part of the problem with the White Paper. It argued that targeting senior leaders was within the President’s authority, but it didn’t foreclose the possibility that others could also be targeted. The Paper spent a great deal of time gesturing at, if not quite committing to, legal theories that would support much broader targeting authority. In this respect, the leaked news, if accurate, confirms what should by now be the unsurprising conclusion that the White Paper did not describe the full scope of asserted U.S. targeting authority.

That said, the official details here are new and therefore important to untangle. We might fairly assume some of these strikes are the deeply problematic signature strikes we’ve known about – against ‘militants’ who may or may not pose a threat to the United States. But what about the named groups? Does the United States have the authority to target the groups it targeted in the Pakistan/Afghan border region – including the Haqqanis, the Pakistani Taliban, and Lashkar i Jhangvi? Start with domestic law. The Authorization for Use of Military Force (AUMF), giving the President the power to use force against those groups responsible for the attacks of 9/11, is an authorization for the use of military force. It’s not clear the AUMF empowers the CIA to do anything. In any case, as the article points out, there’s no suggestion that the groups named above were in fact responsible for the attacks of 9/11. So odds are slim that the AUMF is the relevant source of domestic authority. That leaves CIA’s authority under Title 50 of the U.S. Code to conduct covert operations, operations for which a presidential finding is required and which the U.S. wishes to be able publicly to deny. So perhaps there is a presidential finding (of course classified) that authorizes the use of force against a far broader range of groups than is covered by the AUMF. That would be news. One may well not think this a good idea (itself worth several separate posts), but provided the Administration is complying with the modest requirements of covert action (the finding, congressional notification, etc.), it would address the problem of domestic law.

That still leaves international law. Set aside for the moment my ongoing concerns (see, e.g., here, here) that CIA doesn’t especially think itself legally bound by these obligations. What is the international law justification for the U.S. to use force against these groups? At least as to Haqqani and Lashkar i Jhangvi, McClatchy’s report suggests those groups are responsible for attacks against U.S. forces in Afghanistan. If that’s true, the United States might well be justified in using force against those groups in self-defense, and compliant with domestic law as well, provided these groups were covered under the scope of whatever classified presidential finding exists. Put differently, and to be clear, at least some of these strikes against these groups might be legal.

That still leaves several puzzles. For one, how broad is the President’s covert action finding? Hard to imagine it’s one that gives the CIA has some general power to use force in self-defense on behalf of the United States. That would seem quite a bit beyond the scope of ordinary Title 50 authority, which forecloses the intelligence community from using covert action authority to conduct traditional military activities (as, one might imagine, would include the military’s power to defend itself against foreign attack). So more likely the finding named groups. Were the groups targeted actually on it? Then there’s the U.S. targeting of Pakistani Taliban, which McClatchy doesn’t indicate is behind attacks on U.S. forces. That may just be oversight, or lack of information on McClatchy’s part. Maybe the same self-defense rationale exists there, too. But the Pakistani Taliban wasn’t a publicly designated (at least) terrorist group until 2010, and as I understand it is mostly focused on overthrowing the Pakistani government itself. So if it’s not self-defense, what is the international law justification for targeting them?

The unattractive (and speculative) explanation is this. The President issued a broad finding authorizing the CIA to use lethal force against a set of terrorist groups larger than just those groups responsible for the attacks of 9/11 – including a bunch of Pakistan’s internal enemies. The CIA isn’t especially worried about whether its exercise of this authority globally complies with international law restrictions on the use of force. Or, more specifically, the CIA thinks as long as it has the foreign state’s consent, it can use force in that foreign state whether or not it has an independent basis – UN Security Council authorization or a self-defense justification notwithstanding. In other words, the CIA thinks as long it’s not violating Pakistani sovereignty (which consent addresses), there’s no other international legal bar preventing its actions.

Exactly because it would be far too easy for one state to have another state do its internal dirty work for it, that’s never been my understanding of the UN Charter Article 2/Article 51 universe in which we live. I suspect the CIA disagrees with me. As for international human rights law, like the International Covenant on Civil & Political Rights (the treaty the United States ratified that says, among other things, states can’t kill people arbitrarily), the U.S. has long taken the view that our treaty obligations under the ICCPR don’t restrict our actions outside the United States. And while the Obama Administration had made gestures in some settings that it was reconsidering that longstanding position, if this is really what we’re doing in Pakistan, I can see why it hasn’t actually taken the plunge. In the meantime, worst case from the above and all apart from the loopy signature strikes themselves, we’re killing people in Pakistan with whom we are not at war and who pose no threat (imminent or otherwise) to the United States.

http://opiniojuris.org/2013/04/11/keeping-up-with-the-drones/

2 Responses

  1. Great post, Deborah.  If you’ll permit a bit of self-promotion, I briefly engaged the issues you raise here.

  2. Most targetings will fit under the self-defense paradigm, some under the laws of war.  The President does not need congressional legislation to support targetings under either set of customary and treaty-based international laws, since the President has the duty, and necessary competence, to faithfully execute international law. US Const, aRt. II, sec. 3  Internally, the President can delegate tasks to military personnel or CIA personnel unless there is a later in time restriciton under relevant congressional legislation (which must be interpreted a la Charming Betsy consitently with international law) and in such legislation Congress has expressed a clear and unequivocal intent to override international law.  See, e.g., my article on the consitutionality of U.S. action in Libya (26 Emory Int’l L. Rev.).
    With respect to human rights under the ICCPR, the Bush Administration was manifestly in error when claiming that the ICCPR (and the CAT) only applied within the U.S. — as had already been noted by the H.R. Comm. and the CAT Comm., etc.  Moreover, the UN Charter applies globally and the ICCPR recognizes that human rights obligations are “universal,” etc.
    But who has a relevant human right to freedom from “arbitrary” killing?  It is well known that only those who are in the actual power or effective control of a state if it is operating outside its territory or territory that it occupies.

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