More Justification for Drones

The President's top counter-terrorism advisor, John Brennan, set out the administration's legal and ethical case for the use of drones today at Woodrow Wilson International Center for Scholars.  Brennan's speech comes just under two months after AG Eric Holder stated the case at Northwestern University, just over three months after DOD General Counsel Jeh Johnson argued the administration's case at Yale Law School, and nearly two years after State Department Legal Adviser Harold Koh made the case to the American Society of International Law.  It also comes just over six months after administration sources hinted at the justification in WaPo and the NYT.

We last covered the administration's expanding use of drones in Yemen here.

Brennan's talk echoes Holder's, Jeh's, and Koh's earlier talks, with perhaps more length, but still little detail.  We're still waiting for the administration to release its written legal analysis.  The case by administration officials amounts to little more than "trust us" on its processes for identifying targets that pose a threat to trigger national self-defense.  This falls far short for an authority that the administration used just last year to target and kill a U.S. citizen.

Here's what Brennan said today:

[A]s matter of domestic law, the Constitution empowers the President to protect the nation from any imminent threat of attack.  The Authorization for Use of Military Force--the AUMF--passed by Congress after the September 11th attacks authorizes the president "to use all necessary and appropriate force" against those nations, organizations and individuals responsible for 9/11.  There is nothing in the AUMF that restricts the use of military force against al-Qa'ida to Afghanistan.

As a matter of international law, the United States is in an armed conflict with al-Qa'ida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense.  There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.

Second, targeted strikes are ethical.  Without question, the ability to target a specific individual--from hundreds or thousands of miles away--raises profound questions.  Here, I think it's useful to consider such strikes against the basic principles of the law of war that govern the use of force.

Targeted strikes confrom to the principle of necessity--the requirement that the target have definite military value. . . .

Targeted strikes conform to the principle of distinction--the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted. . . .

Targeted strikes confrom to the principle of proportionality--the notion that the anticipated collateral damage of an action cannot be excessive in relation to the anticipated military advantage. . . .

Brennan also touched on the administration's internal checks and processes:

This leads me to the final point I want to discuss today--the rigorous standards and process of review to which we hold ourselves today when considering and authorizing strikes against a specific member of al-Qa'ida outside the "hot" battlefield of Afghanistan.  What I hope to do is to give you a general sense, in broad terms, of the high bar we require ourselves to meet when making these profound decisions today.  That includes not only whether a specific member of al-Qa'ida can legally be pursued with lethal force, but also whether he should be. . . .

If our counterterrorism professionals assess, for example, that a suspected member of al-Qa'ida poses such a threat to the United States as to warrant lethal action, they may raise that individual's name for consideration.  The proposal will go through a careful review and, as appropriate, will be evaluated by the very most senior officials in our government for decision.

First and foremost, the individual must be a legitimate target under the law. . . .

Of course, the law only establishes the outer limits of the authority in which counterterrorism professionals can operate.  Even if we determine that it is lawful to pursue the terrorist in question with lethal force, it doesn't necessarily mean we should. . . .

As a result, we have to be strategic. . . .

For example, when considering lethal force we ask ourselves whether the individual poses a significant threat to U.S. interests. . . .  I am not referring to some hypothetical threat--the mere possibility that a member of al-Qa'ida might try to attack us at some point in the future.  A significant threat might be posed by an individual who is an operational leader of al-Qa'ida or one of its associated forces.  Or perhaps the individual is himself an operative . . . .  Or perhaps the individual possesses unique operational skills that are being leveraged in a planned attack. . . . .

SDS