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How Not To Be Killed By A Drone
05 Mar 2012 by Zach Novetsky in Fordham University School of Law, International Law, Law School Marketing, Law School to Law Firm, Top Legal Blogs, U.S. Regional News, Uncategorized / 7 Comments
Today was a big day. As Adam Serwer put it, bluntly, “the Obama administration explained when it’s allowed to kill you.” Yes, you, a US citizen. Attorney General Eric Holder, in a much-anticipated speech, addressed this question to students and faculty at Northwestern University law school. While Holder’s speech covered three issues – detention authority, terrorist trials, and targeted killings – I will only summarize his remarks and offer my own thoughts on the latter issue.
While I have addressed the legal issues of targeted killings elsewhere, the targeted killing of a US citizen abroad – without a prior trial – is a unique issue. Although Anwar al-Awlaki, a US born cleric who became a prominent operative in al-Qaeda, is the lodestar of this debate, it is worth mentioning that he was not the first US citizen killed abroad in a drone strike. In 2002, Kamal Derwish, who had links to a group affiliated with al-Qaeda, was killed in Yemen by a CIA-launched Hellfire missile from a drone which targeted Qaed Salim Sinan al-Harethi, the mastermind behind the USS Cole bombing.
Now, to borrow Robert Chesney’s summary of the related provisions of Holder’s 5,000-word speech, a targeted killing of a US citizen is consistent with Due Process requirements, as long as the target
(1) is located abroad rather than in the US,
(2) has a senior operational role in al-Qaeda or associated forces,
(3) is involved in plotting focused on the death of Americans in particular,
(4) presents an imminent threat
(5) allows no feasible option for capture without undue risk, and
(6) the strike will comply with International Humanitarian Law principles.
First, why a US citizen must be abroad to be targeted seems legally arbitrary. In fact, Holder (rightfully in my opinion) recognizes that this is not a geographically confined conflict: “[N]either Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.” So, why not permit targeting in the US? (Disclaimer: This would be a very bad thing and I am glad this limitation exists.) Presumably, Holder mentioned this limitation to make the already unpalatable killing of a US citizen more palatable. But if the threat is domestic, imminent, and not a single collateral death will ensue, why, legally, can a US citizen not be targeted in the US?
Second, if imminence is already a requirement, why then is having a “senior operational role” legally necessary? This, again, seems arbitrary. (If imminence was not a requirement, “senior operational role” could be seen as a way around the imminence problem. See EmptyWheel on this point.)
Finally, it is significant that Holder recognizes the “capture requirement”, because when US citizens are not involved, this point has, as of now, not been conceded. Why this requirement should only apply to the targeting of US citizens, again, seems legally arbitrary.
In the coming days, it will be well worth your time to follow the commentary closely. Your life may well depend on it. (Just kidding. But not really.)
Post Tags: Al Qaida, al-Awlaki, al-Qaeda, Anwar, AQ, Attorney General, Awlaki, CIA, Drone, Due Process, Eric Holder, Hellfire, Holder, Kamal Derwish, Obama, Targeted Killing, US citizenAbout the Author: Zach Novetsky
7 Comments
Mihai Martoiu Ticu
As a non-US-citizen, I don’t see any reason why it would be legal for U.S. to kill me – and at the same time to deny my family the chance to challenge the U.S.’s legal argument before a court, especially before an International Court. In short: as long as I cannot sue U.S. in any international court, it is illegal for U.S. to kill me or my relatives.
06 Mar 2012 05:03 am (@Twitter)
Zach Novetsky
Thanks for the comment Mihai. The US can only prevent a legal challenge in court, in a US court (as Awalki’s father attempted to do). If this matter were somehow referred to an international court, the US wouldn’t be able to stop to the challenge in the same way.
06 Mar 2012 10:03 am (@Twitter)
AB
“But if the threat is domestic, imminent, and not a single collateral death will ensue, why, legally, can a US citizen not be targeted in the US?”
Presumably because in the US there is a “feasible option of capture without undue risk”?
06 Mar 2012 12:03 pm (@Twitter)
Zach Novetsky
AB,
It’s a good question, but we can at least envision a scenario where capture, in the US, is not in fact feasible. I’ll let Robert Farley do the talking on this point:
“The distinction may rest on the feasibility question; we assume that the United States government has the ability to capture terror suspects within the United States, or at least give them a reasonable chance of surrender. Also, the only organizations currently operating armed drones are prohibited from operating in the United States. Nevertheless, some clarification as to why a drone strike against a terror suspect in a heavily fortified US compound would be improper while the same drone strike on a foreign target would be acceptable would have been helpful.”
06 Mar 2012 01:03 pm (@Twitter)
Zach Novetsky
That link: http://www.lawyersgunsmoneyblog.com/2012/03/more-on-holder
06 Mar 2012 01:03 pm (@Twitter)
JH
Wouldn’t this mean that the US, if they wanted, and did not like a person, label that person a al qaeda member and kill them? Do other countries have any say in this? Lets say Joe from Missouri pissed the government off by doing something that made them look horrible. In June, Joe has a vacation in Paris with his family for a week. Does this mean that the US could say Joe is a Al-Qaeda senior operative, go to Paris and bomb them? If so that is HORRIBLE……
08 Mar 2012 12:03 pm (@SimplyStunned)
Zach Novetsky
JH,
It’s more complicated than that. One issue is indeed transparency (i.e. How the determination is made that someone is part of the ‘enemy’), as you mentioned. But practically speaking, there must be some form of host-nation consent in order for the US to operate the drones doing the targeted killing. I’ve discussed consent at greater length here: http://rethinkingsecurity.tumblr.com/post/17235612738/guest-post-the-legality-of-drones
08 Mar 2012 01:03 pm (@Twitter)
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