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Can We Stop the Military from Killing by Remote Control?

Drone Warfare: Jus Ad Bellum?

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Benjamin devotes a chapter to the legality of drone warfare and concludes it violates due process and international law. “American presidents now assert the right to be judge, juror and executioner, a de facto license to kill free from the irksome interference of checks and balances,” she writes. A 007 presidency, in effect. Chillingly, Benjamin describes “Terror Tuesdays” — weekly meetings when President Obama and his staff add suspects to the drone hit lists. Under Presidents Ford, Carter, and Reagan, American policy forbade targeted assassination, but post 9/11, President Bush lifted this ban, and President Obama has, so far, left Bush’s policy in effect, and indeed, at least until very recently, greatly expanded the number of assassinations by drone strikes.

The legal support for the executive’s right to order executions by drone is the Authorization for the Use of Military Force Act of 2001 (the AUMF), which gives the president power to “use all necessary and appropriate force […] to pursue those responsible for the 9/11 attacks.” For Benjamin, this legal justification is unpersuasive — she and like-minded critics argue that whether drone strikes are “necessary and appropriate” is the question, not the answer. Since the AUMF is specifically tied to pursuit of the perpetrators of the 9/11 attacks, even a drone supporter such as American University’s Professor Kenneth Anderson acknowledges reliance on the AUMF to pursue today’s terrorists “looks increasingly threadbare,” and that at some point “the president will have to act either under his own constitutional authority or obtain a new congressional authorization.” On balance, to this reviewer, the AUMF statutory basis for the drone program seems tenuous.

As far as international law is concerned, Benjamin acknowledges the right of nations to “self-defense,” but outside a combat zone, she contends (and without citation) that “the killing must be necessary to protect life and there must be no other means, such as capture, or nonlethal incapacitation, to prevent that threat to life.” One wonders if she overstates the case, since, judged by this standard, it’s hard to see how any drone strike could be justified. To explain the government’s position, Benjamin quotes Harold Koh, one of President Obama’s legal advisors, who has argued that, as the United States is at war with al-Qaeda and the Taliban, it “may use force consistent with its inherent right to self-defense” including “lethal operations conducting with the use of unmanned aerial vehicles.” Amnesty International and Human Rights Watch hew much closer to Benjamin, and they separately accused the United States of breaking international law by killing civilians in missile and drone strikes intended for militants in Pakistan and Yemen. There are indications the Obama administration may be listening. Several recent anti-terrorist missions have notably involved on-the-ground kill or capture instead of drone strikes.

Benjamin also raises the vexing issue of drone strikes directed at American citizens, such as the case of Anwar al-Awlaki, a US citizen, Muslim cleric, and propagandist for an al-Qaeda–styled terrorist group, who was killed in a drone strike in Yemen. President Obama’s right to order the assassination of an American citizen on foreign soil was upheld in court as an executive decision beyond judicial review (meaning, the court concluded it could not second guess the president’s decision without entering into foreign policy issues reserved to the executive). What has happened, Benjamin asks, to the presumption of innocence and due process? As an American citizen, she urges, al-Awlaki was entitled to a jury trial (even if in absentia) to determine his guilt or innocence, not execution by executive decree. She glosses over the government’s justification, articulated by no less than President Obama himself: “[W]hen a US citizen goes abroad to wage war against America — and is actively plotting to kill U.S. citizens; and when neither the United States, nor our partners are in a position to capture him before he carries out a plot — his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a swat team.” Surprisingly, Benjamin provides no discussion of the “unwilling and unable doctrine,” an established principle of international law that sanctions governments taking action in another country’s territory to protect itself when the other government is “unwilling or unable” to do so, and a doctrinal underpinning of the administration's justification of drone use.