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Drone Strikes Test Legal Grounds for War on Terror

The Obama administration has justified its counterterror strategy on a law Congress passed just days after 9/11. But more than a decade later, does it fit the facts on the ground?

A U.S. Air Force MQ-1 Predator unmanned aerial vehicle from the 163rd Reconnaissance Wing can be seen at dusk during a post-flight inspection in Victorville, Calif., in January 2012. (U.S. Air Force photo by Master Sgt. Stanley Thompson/Released)

In his second inaugural address, President Barack Obama declared that “a decade of war is now ending.” White House press secretary Jay Carney later said there was “no question” that the U.S. conflict with al-Qaida was “entering a new phase.”

That day in Yemen, a U.S. drone strike reportedly killed three suspected al-Qaida militants. It was one of several strikes there that week and followed a spate of them in Pakistan. Outgoing Secretary of Defense Leon Panetta said this weekend that drone strikes “ought to continue to be a tool we ought to use where necessary.”

Like the war in Afghanistan, these and hundreds of other drone strikes have occurred under the authority of a concise law passed one week after 9/11. It reads:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

That law – known as the 2001 Authorization for Use of Military Force, or AUMF – is now more than 11 years old. Will it cover this “new phase” of war?

Obama, like President George W. Bush before him, has claimed that the 2001 authorization is the domestic legal basis of the authority to kill and detain not onlymembers of al-Qaida and the Taliban in Afghanistan but also their “associated forces.” Courts have largely agreed with that interpretation, and in 2011 Congress codified it in authorizing military detention.

A Justice Department memopublished Monday by NBC News – repeatedly cites Congress’ authorization in laying out the case for targeting a U.S. citizen “who is a senior operational leader of al-Qaida or an associated force.”

Officials note the AUMF does not have a geographic boundary. Individuals far from the “hot” battlefield in Afghanistan, officials have argued, can still be said to be engaged in an armed conflict with the U.S.

But legal scholars say the AUMF’s authority to detain and kill militants may be undermined if there is no “core” al-Qaida group to speak of, or when active conflict in Afghanistan ends.  It may also falter when it isn’t clear exactly how a group or individual is tied to al-Qaida – such as in the web of militant and extremist groups operating in Africa and elsewhere that may claim an affiliation or be ideologically aligned.

“There’s room for shoe-horning them into the AUMF,” says Robert Chesney, a professor at University of Texas School of Law. “But any honest assessment has to concede it’s not obvious that all the more loosely affiliated groups are encompassed.”

The AUMF doesn’t include an expiration date. But the law does have its limits, says Chesney. “It’s not claiming an armed conflict with all terrorism, but with al-Qaida and its associated forces. In theory, there can come an end.”

Last November, shortly before he stepped down as the Pentagon’s general counsel, Jeh Johnson gave a speech on that end. He spoke of a “tipping point,” when the U.S. counterterrorism efforts “should no longer be considered an ‘armed conflict’ against al-Qaida and its associated forces.” Counterterror efforts would then be aimed against individuals and could be handled primarily by law enforcement.

Johnson conceded it was hard to imagine that tipping point. There would be no “peace treaty” to mark it, he said, and he could “offer no prediction about when this conflict will end.”

A preview of the dilemma came in 2011, when the U.S. indicted a Somali man named Ahmed Abdulkadir Warsame in federal court in New York. Warsame was a member of Al-Shabaab, a group in Somalia, and had ties to al-Qaida in the Arabian Peninsula, but he was not connected to any plot against the U.S. He had initially been held by the military, but according to Newsweek reporter Daniel Klaidman, the Obama administration was unsure where he fit under the law.

Jack Goldsmith, a professor at Harvard Law School and former head of the Office of Legal Counsel for President Bush in 2003 and 2004, says “the AUMF is losing its efficacy. We’re in a place when we’re engaged in types of warfare that the nation hasn’t openly debated.”

The “shoehorn” approach may eventually run into legal gray area. Chesney points out that court decisions upholding military detention have generally been linked in some way to the conflict in Afghanistan. (So far, U.S. courts have not taken up lawsuits challenging targeted killing.)

“When the war in Afghanistan ends, and if core al-Qaida is decimated, how do we define who we are at war with?” says Hina Shamsi, director of the National Security Project at the American Civil Liberties Union.

Shamsi argues that the Obama administration is already relying on an overbroad interpretation of the AUMF to justify strikes against alleged militants in Yemen or Somalia without demonstrating precisely how they are associated with al-Qaida or engaged in anti-U.S. hostilities.

Militant groups have emerged as a threat in North Africa – some claiming an affiliation with al-Qaida. The degree to which those groups are plotting against the U.S. or interested in regional control is still being debated. The U.S. is expanding its presence in the region, butat least initially, the government says it is bolstering surveillance and training and assistance for local governments, not taking military action.

A Pentagon spokesman said last week he was “unaware of any specific or credible information at this time that points to an [al-Qaida in the Islamic Maghreb] threat against the homeland, but, again, I’m not ruling it out.”

The U.S. has provided refueling and cargo planes to assist the French intervention in Mali. That is lawful because France is acting “in response to a request for assistance from the Malian government,” Tommy Vietor, a spokesman for the National Security Council, told ProPublica.

Administration officials say strikes against al-Qaida and associated forces are permitted under international law on the basis of self-defense, in addition to the authority the AUMF provides under domestic law. The U.N. has been investigating targeted killings and civilian casualties from drone strikes.

In a case where the 2001 AUMF did not apply, the administration could seek a new authorization from Congress or rely on presidential powers to use force against an imminent threat.

Gen. Carter Ham, the head of U.S. Africa Command, said in an interview with The Wall Street Journal in December that an authorization to address new threats in North Africa was a “worthy discussion.” But what form that would take is unclear. The Pentagon and White House did not comment to ProPublica on the possibility of a new AUMF.

Presidents have used force without Congressional authorization by invoking presidential powers under Article II of the Constitution.

Obama ordered airstrikes over Libya in the spring of 2011 citing international cooperation and “national interest” as justification. (Several lawmakers subsequently sued the administration for bypassing them, but the case was dismissed.) He has also claimed authority to launch pre-emptive cyberattacks, the New York Times reported this weekend. President Bill Clinton cited the nation’s right to self-defense when he bombed Afghanistan and Sudan in 1998 in retaliation for the bombing of U.S. embassies in East Africa.

Obama officials regularly cite self-defense alongside the AUMF in justifying targeted killing. White House counterterror adviser John Brennan has said that the U.S. uses “a flexible understanding of ‘imminence’ ” in determining what constitutes a threat. The Justice Department memo on targeting U.S. citizens also references a “broader concept of imminence,” which it holds “does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Shamsi and other critics of the drone war have noted that some strikes in Yemen in particular appear to target insurgents acting against local government. The U.S. almost never acknowledges particular strikes or details the specific threat posed by an individual.

Johnson, the former Pentagon counsel, told The Wall Street Journal that “the president always has the constitutional authority to protect the nation and important national interests by responding to individual terrorist threats, militarily or otherwise.”

Johnson noted that, for a “sustained armed conflict, the preference should be Congressional authorization.” 

What about causes of Arab Peninsula fanaticism that is the origin of these terror groups?  Should there be a re-examination of the wisdom of using a religion (Islam) for political means by the West? There is little discussion about how they used Muslim groups in the 70’s and 80’s to fight the Soviet block by proxy. This was advocated by Alexander de Marenches, chief of French secret services, Dr Zbigniew Brzezinski. The support of the Mujahideen in Afghanistan followed, etc…
What about poorly managed crisis in the Arabian Peninsula? Little attention is being paid to the role of the siege of Mecca in 1979 (in which France had a critical role) and how this lead to the current concordat between the Royals and clerics.
What about official, oil revenue sponsored Fatwas issue in Saudi Arabia over the last 30 years? These are issued by clerics paid and approved by the Royals. Why the US administration is no condemning these? Is it because these Fatwa serve a purpose? They allow the Saudi Royals to maintain control of oil supplies, and that is in western interests? Is that is why the US administration does not criticizing these Fatawas?
What about the civilian casualties from Drone attacks? Why is there no official tracking of the number of civilian deaths? How effective are deaths of civilians (including children) in recruiting further terrorists? Or is the drone campaign a convenient propaganda tool to show to the US public “that something is being done”. Is it used because addressing root causes, like confronting oil revenue sponsored Fatwa makers goes against the pocket books of people with influence?
If the law calls for the President to “use all necessary and appropriate force against those nations, organizations, or persons”, should the above causes also be examined and dealt with “necessary and appropriate force”?  When innocent civilains and children are killed, the drone program is a cowardly hypocrisy. Where are the tears for the extra judicial killing of children? Where is this allowed in the US constitution?

Examples of recent Fatwas
Fatwa calling for the destruction of all churches in the Arab Peninsula
http://www.reuters.com/article/2012/03/26/uk-saudi-christians-fatwa-idUSLNE82P01220120326
Anti protest Fatwa, claiming that Saudi Arabia is only one group of people under the Royals and clerics
http://www.guardian.co.uk/commentisfree/belief/2011/apr/01/saudi-arabia-anti-protest-fatwa
Fatwa against Pokemon
http://abcnews.go.com/International/story?id=81345&page=1
Leading to unregulated Fatwa such as Fatwa for baby girls to wear burkas
http://english.alarabiya.net/articles/2013/02/03/264031.html
Call for better regulation of Fatwas
http://www.kashmirreader.com/kreadernew/01152013-ND-media-attention-drives-preachers’-fatwa-frenzy-saudi-arabia-10092.aspx
Fatwa against suicide boning issued in Canada, not Saudi
http://www.cbc.ca/news/canada/toronto/story/2010/03/30/tor-ul-qadri-gta.html

To extend what Tom is saying (and that I largely agree with), a sizable fraction of the Arab population sees our involvement in their own oppression.  On one hand, we fund their governments by buying enormous amounts of oil at any price and sell them weapons and surveillance equipment.  On the other, we back Israel unconditionally, and while I don’t have a problem with the existence of Israel, shoehorning an “enemy” into the middle of their turf and saying we’ll support anything they do is a wonderful excuse for every nearby government to turn into a military dictatorship…just in case.

Iran is even a more extreme case.  The Shah wanted big families so that the youth could grow up to displace the freer old guard and be good little drones.  They got the baby boom, but it also came with fairy tales like “The Little Black Fish” and the ability to watch the west want its MTV.  So they’ve spent their entire lives waiting for an excuse to bring down the likes of Kholmeni and Ahmadinijad, and they look at us threatening to bomb their imaginary nuclear weapons (but not care about the real weapons in, say, Pakistan, which funds terrorists as a matter of course).

There’s also a matter of language.  Jihad, Mujahideen, and Fatwa didn’t refer to warfare until bin Laden (with his western influences) gained influence.

And we’ve also changed warfare.  Once upon a time, when we invaded a country, we rebuilt it both with engineers and our soldiers getting involved in the civilian communities.  And frankly, in the first couple of years in Iraq, I was being told by soldiers that Bush was right, our guys were welcomed with open arms, because nobody liked Saddam and we had a good reputation.

But then we spent years wiping out villages and infrastructure, displacing hundreds of thousands of people, and doing nothing to fix it.  And we wonder why we couldn’t even secure the Green Zone.

On top of that, when it suits our purposes, we find the actual terrorists and give them money and weapons.  I’m sure it’s a total shock that, after the regime change, they turn against us.  I mean, we’re totally trustworthy in funding criminals to overthrow a foreign government, right…?

Byron Winchell

Feb. 6, 2013, 3:18 p.m.

Tom and John:

Can we develop energy, green and otherwise, in the Western Hemisphere so we can withdraw (no incentive to declare access to Mid-East “in the national interest”)?  Israel might have to go it alone, but the Arab obsession with the Jews is mainly fostered by their governments as a target for their populations’ frustration with a crappy life.

How long before radical Islam gets the message and leaves us alone?  Isn’t this what they wanted?

I thought the article was about Obama’s drone/assassination policy.  When Bush did about 1/10th of Obama’s activity, he was called a war criminal.  While I care little about people outside the U.S., I fear Obama’s government security justification and his circular reasoning regarding “imminent threats”.  Even now, he applies this to domestic politics re gun control.

(Apologies—since I’m feeling this out as I go, it’s long and rambly, but it’s an entirely valid issue, I think.)

Last item first, Byron, I agree that Obama is Bush’s third (and now fourth) term.  My biggest problem with drones is that we spent a lot of propaganda time convincing ourselves that we were the good guys, because they took kids off the street to brainwash them into soulless monsters able to walk into a crowd to blow themselves up.  So what did we do?  We built the same system, except the kid gets a salary and blows up the soulless monster from a few thousand miles away in an Aeron chair.  Oh, yes, my moral objection was obviously that the suicide bomber didn’t have a desk…

Otherwise, I’m not completely sure on energy, but quick demonstrations I’ve seen at MIT (friends have labs there) and papers I’ve seen (also a hopeless nerd) says the technology is developed.  The problem seems to be getting it from the lab into everybody’s hands.

Given that a good (high-efficiency, flexible, lightweight) solar panel and good (cheap, high capacity) battery would wipe out almost the entire petroleum industry and electricity monopolies as quick as they could manufacture, I could be easily convinced that the problem is more things like funding and insurance trouble than invention.  A lot of rich people do stand to lose if we get this right.

I should be clear that I don’t want to make any accusation, because I don’t have any evidence (not even a paranoid CEO ranting about conspiracies against him), but my feeling is that the energy issue is more Tucker Corporation than cold fusion, if you get my drift.  As someone who also sits ten feet from a recent corporate push for solar energy, I can definitely tell you that there’s an enormous gulf between what labs are producing and what’s for sale.

If we ignore that hypothesis, though, it looks like natural gas (environmental problems aside, or replaced by setting bacteria loose on oil spills and coal mines) could fill the fuel needs.  Certainly, the Nazis and South Africans (everybody’s favorite people, I know, but…) ran most of their existing cars on methane during oil embargoes, for example.  The Chinese, last I checked, were manufacturing oil from coal (which we have a lot of) for something like forty bucks a barrel.

As to the result?  I don’t really know.  We accepted the Russian Federation pretty quickly after a much longer opposition, and it’s noteworthy that most of the Arab world happily does business with former Soviet states despite their being mired in many of the same places we are today (remember how funny it was that the Russians were wasting money and lives on Afghanistan…?).  So it might be pretty easy.

Mind you, I’m thinking in terms of the people, not the governments.  Their governments are mostly a lost cause, extremists who got into power by playing to everybody’s fears.  The big question is whether we’ve armed the governments so well against their own people that the people can’t rise up when the outside threat (us) walks away.

The Arab Spring was a good sign, though, even though most of the revolts gave way to the same sorts of creeps they dethroned.  It shows that the people are certainly willing to try.  Without the West available as a “common enemy” to point at, I’d bet on the people.  As you point out, they certainly don’t want to live like Muhammad just got back from Medina this morning.

I see the drone strikes as a surgical means of attacking enemies who are actively engaged in an undeclared war with the US. Much better than carpet bombing with who amounts of property destruction and loss of life from innocent bystanders.

Byron and gunste, I not saying that people should not go after bad guys. What I am saying is that each time we pay for gas, the money goes into the pocket to rulers that are supposedly friendly, but in fact pay clerics to make statements that fuel crazy ideologies. These ideologies drive these bad guys. Then these rulers come back to us and say: “see, its either us or them”.
Nobody wants to point out this double standard and conflict of interest, despite the fact that is what the law says needs to be done.
There are big interests behind this silence: oil industry, military arms industries, drone sales, and resulting kickbacks in the form of campaign contributions etc..
Instead, it is easier to shoot a missile and wipe out half a remote hamlet that harbors one or two people indoctrinated by oil money funded fanaticism.
The fact that the innocent civilians, including children are killed is disgusting. This pisses people off and is used to recruit does not seem to be of concern.
The hope is that some one will come out represent innocent victims of drone attacks in US or international courts.

Arab Peninsula extreme Sunnism is fairly recent. It serves political objectives of despots or wannabe despots, like Morsi, in the in the region. They, in turn, keep western flow of oil and arms sales going. This explains why Morsi and his Arab Peninsula influenced arm of the Muslim Brotherhood and Salafis, high jacked the constitution. They are just following the game plan. Arab Peninsula extreme Sunnism influenced Al Quaida style groups also play a convenient role. They create a circle of chaos around the Kingdoms, This diversion allows the royals to scare the western public, by saying: “if you don’t leave us alone, they will take over”. So the US administration designs the ”drone R US” program to say that “something is done”. That over 100 children are killed, who cares, the US administration only sheds fake tears for those killed in the US. That these drones only inflame the situation further, that is fine, this drives the system, people will make money out of all this. There is a huge hidden economy behind arms sales. Prices are jacked up. This markup is used to payoff people with influences on both sides of the sale (using untraceable financial transactions etc..). This also helps pay the silence of this corrupt double standard.
Why on Earth Egypt, a country that exists for 1000s of years, needs now F16s? Who profits from this? Follow the money….Unfortunately, there is little serious investigative journalism left in the US (however, good job Propublica)..
http://uk.reuters.com/article/2013/02/03/uk-egypt-usa-military-idUKBRE9120BZ20130203

So without data let’s guess what is behind this F16 delivery to Egypt.
In the current climate, does any one think the US would deliver 4 fully operational lethal jets, to an unstable regime? Not likely. These jests probably are loaded with gadgets that allow them to be traced at a distance, out of the control of the operators, and if need be, positions given to other powers to shoot them down. The French did this when they sold frigates to Taiwan and gave tracing codes to China. So these planes are useless. Egyptians are not stupid. They probably know this. But that was part of the condition to get the $billion + US “aid” package. Part of the purchase price of these F16 includes a commission fee. This commission is split between US and Egypt deal makers. The US side is used to payoff lobbying, etc… The Egyptian part will, amongst others, serve to bolster Muslim Brotherhood coffers. Some of that will be use by their fanatics. The preaching of these fanatics, in turn, will eventually make a few young people join ultra extremists groups. No problem. These will be killed by US made drones, from the same manufactures that made F16s. In the end, US tax payers are the losers in this scam.

gunste, that’s what’s in the press release, but it seems like we blow away entire villages anyway, just in case.  Plus everybody we kill happened to be a “militant” (no real definition, but not people associated with militias or terrorist cells) and what Obama calls an “imminent threat.”

That seems highly improbable, and suspiciously like what the militant Muslim leaders tell their disciples to convince them to strap explosives to their chests before running into a supermarket.

(And when you add that the government claims this gives them the right, as well, to murder even American citizens on suspicion of involvement with terrorism, with no silly things like due process or a trial of peers, everything related to the policy should be at least a little open to scrutiny.)

And again, I agree with Tom.  They don’t hate us “for our freedoms,” though they’re largely envious as any of us would be.  They hate us because we fund the crappy governments that oppress them.  It’s not even all oil—we encourage sale of arms and surveillance to their governments while enforcing embargoes of communications and encryption to the citizens, too.

Consider, for example, where a country like Syria could possibly have gotten their hands on the technology that traced Marie Colvin’s phone to target her hotel room with a missile.  There’s only a few companies that can make something like that, and I’m fairly sure they all speak English at the switchboard.

worldwatchman

Feb. 7, 2013, 12:46 p.m.

If you are a U.S. citizen who is taking up arms against American soldiers or civilians in a war zone then I don’t have a problem with this BUT, say the scenario is U.S. citizens rising up against the President when he has overstepped his power and want to create a new U.S. Constitutional government; does this mean he can turn the military against We The People and use drones or other military hardware against them?  There’s trouble between the lines with this.
There’s got to be more debate on this.  It’s too open for un-Constitutional government abuse as it’s written.

I think the commentary here misses the point entirely:  is it legally sufficient for the President of the United States and the Executive Branch to unilaterally order an assassination without the overview or agreement of either of the other two co-equal branches of government, i.e. Congress or the Judiciary?  No matter what the current legal framework provides for, the answer should be a resounding “No.”

We treat terrorism by Islamic extremists like it a new form of violence or terror, and this is born of a willful ignorance of history.  What we should be asking is, should the President of the United States been able to unilaterally send a drone to blow up Timothy McVey after the OK City FBI bombing?  The notion that the people we do this against think that they are in a state of war against the United States is not unique to the Middle East, it turns out.  In fact, McVey and his cohorts felt exactly the same thing.

But, the state of affairs, and the memo from the DOJ, apparently seem to condone exactly this idea.  Yes, they talk about a citizen that is abroad, but the national boundary is a mere artifice really.  And, moreover, the distinction of citizenry is artificial as well.  Do we, in a modern, globally interconnected world really have the right to assassinate citizens of other countries with impunity simply because our President says those people need to die?  If there is a French citizen who is blown up by a drone strike, don’t we think that the French would care about it? 

In fact, the only reason we get away with this is because the states we deal with have no power: Yemen, Pakistan, Afghanistan, Iraq.  These are all failed states with limited resources, and certainly no governments that can do anything to the US about the assassination of its citizens. 

Finally, no one has considered what this method of addressing this problem ultimately does to our national security and intelligence agencies: it makes them incredibly lazy.  The drone strike is finality without any consequence, and they can spin whatever story they like, because there is no one on the other side to tell their version of the story.  If we want to stop terrorism, we must employ actual investigative tactics, not merely cast suspicion upon persons who happen to be in the vicinity of bad people. 

This system does not address or prevent any of the failures that led to the attacks on September 11, 2001, and we cannot pretend that this is okay.  In fact, this series of actions only serves as a recruiting tool for extremists, because in doing this, we are everything they claim we are.  Notice that a drone strike was not used to eliminate Osama Bin Laden, that a great deal of intelligence work was done to confirm his location before even sending the SEAL team in.  Why is it that drone strikes are not okay for the most wanted terrorist in the world, but not for anyone else?

Sam, very well put. I hope one day such arguments will be presented successfully in the Hague or New York for the victim side.

This article is part of an ongoing investigation:
The Drone War

The Drone War

ProPublica is covering the U.S.' expanding – and often secret – targeted killing program.

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