I spent much of this fall semester diving back into drones, drone technology, and policies related to drones. This was, in large part, because I had agreed to take on leading this cohort of undergrads through an internship regarding drones starting next month, and it’s about all things drones. I have a solid background in drones – well, I tell myself that – but I really needed to bear down and ensure I had maintained my subject matter expertise in the whole of the subject. Nobody wants a professor who sort of knows the material. I don’t want to be that guy.
One specific part of the field I have been focusing on has been how the US developed policies and procedures for using drones for targeted killing, especially in support of killing American citizens. Notably, this started under the Obama administration with the attack to kill American citizen and established and recognized cleric Anwar al-Awlaki in Yemen in 2009. In another drone strike two weeks later (although he was not the primary target), al-Awlaki’s son (and another US citizen) was also killed in Yemen.
It’s complicated. Let me explain.
The whole of the authorizations to do this goes back to 2001 when Congress passed the Authorization for Use of Military Force Against Terrorists, a law that granted the President certain authorities to use all “necessary and appropriate force” against those whom he determined “planned, authorized, committed or aided” the September 11th attacks, or who harbored said persons or groups.
(a) IN GENERAL- 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.
Since then, the President has used the AUMF as the basis for every action – to include letting loose Hellfires from the rails of drones.
From that, the White House has debated when it would be OK to use drones and lethal means of attack from a a drone – targeted killing – in lieu of other options. From a subsequently released White House document, we see this description.
Here the Department of Justice concludes only that where the following three conditions are met, a U.S. operation using lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force would be lawful: (1) an informed; high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles. This conclusion is reached with recognition of the extraordinary seriousness of a lethal operation by the United States against a U.S. citizen, and also of the extraordinary seriousness of the threat posed by senior operational al-Qa’ida members and the loss of life that would result were their operations successful.
There is, after this, a whole other debate about most every element of this. Key elements include the very idea of imminent threat; how capture can ever be considered infeasible, after operations to capture bin Laden, Mir Qazi and Saleh Ali Nabhan; and the application of the First Protocol of the Geneva Conventions, with regards to being a combatant. I could and probably should write at length just on these topics.
But all of that was enough of an issue, while also wading though the myriad of issues that came pouring out of Dallas in response to the 07 July shooting incident involving Micah Johnson, and the police response and Johnson’s death. With Johnson wounded, bleeding, and holed up in a parking garage, Dallas PD opted to retrieve one of their remotely piloted bomb disposal robots, attach one pound of C4 plastic explosive, and pilot the robot to Johnson in order to detonate the C4 and kill him.
It’s one thing when the President has lawyers preparing papers, debating the use of the 2002 AUMF and its application for using a remotely piloted aircraft in launching a AGM-114 Hellfire missile at someone. But it’s something entirely different when a Police Chief decides to forego all means of due process and kill a suspect, without regards to due process, when the suspect does not meet any of these same criteria stated above. Johnson posed no imminent threat. Capture was feasible. Killing him in that manner was not consistent with applicable law of war principles.
Six months later, that Dallas incident still worries me. That precedent still haunts me. It’s going to be used again here in the US, and we are at risk for it becoming an acceptable norm. And that would be horrific. It is critically important that we are having this debate about Americans engaged in the fight on the battlefield, but we must struggle – truly struggle – to ensure that rule of law remains the absolute baseline for how we live, every day in this country. It is, after all, how we define who we are.