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Cross-Border Targeted Killings: “Lawful but Awful”?

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Cross-Border Targeted Killings: “Lawful but Awful”? CROSS-BORDER TARGETED KILLINGS: “LAWFUL BUT AWFUL”? ROSA BROOKS* Since September 11, the United States has waged two very open wars in Afghanistan and Iraq. These two wars have killed nearly 7,000 U.S. military personnel and left some 50,000 Ameri- can troops wounded; they have also left an unknown number of Iraqi and Afghan soldiers and civilians dead or wounded.1 But alongside these two costly and visible wars, the United States has also been waging what amounts to a third war. This third war is a secret war, waged mostly by drone strikes, though it has also involved a smaller number of special opera- tions raids.2 I call this third war a secret war, because though its existence is widely known, it remains officially unacknowledged by the government of the United States: In court filings, for in- stance, the United States continues to state that it will neither confirm nor deny its involvement in drone strikes outside of tra- ditional battlefields.3 * Professor of Law, Georgetown University Law Center, and Senior Fellow, New America Foundation. This essay was adapted from remarks given at the 2014 Federalist Society Annual Student Symposium at the University of Florida in Gainesville, Florida. 1. DEP’T OF DEFENSE, http://www.defense.gov/news/casualty.pdf [http://perma.cc/ TE3M-UNT2] (last visited July 25, 2014); David Pogue, Iraq, Afghanistan War Wound- ed Pass 50,000, HUFFINGTON POST (Oct. 25, 2012, 12:36 PM) http://www. huffingtonpost.com/2012/10/25/iraq-afghanistan-war-wounded_n_2017338.html [http://perma.cc/3RDZ-ZGRQ]. 2. Throughout these remarks, I use “U.S. drone strikes” as a shorthand way to refer to the expansive U.S. campaign of lethal, cross-border counterterrorist strikes outside of traditional, territorially defined battlefields. To be clear, howev- er, the issue is not “drones” or “drone strikes;” drones are simply another way of delivering ordnance from a distance. The availability of armed unmanned aerial vehicles has enabled an expanded U.S. campaign of cross-border targeted killings, but my concern is with the expanded use of such targeted killings, rather than the specific platforms used to carry them out. 3. See Brief for Appellee, Am. Civil Liberties Union v. CIA, 710 F.3d 422 (D.C. Cir. 2013) (No. 11-5320), 2012 WL 1853574; Brief for Defendants-Appellants, New York Times Co. v. U.S. Dep’t of Justice, 752 F.3d 123 (2d Cir. 2014) (Nos. 13-422(L), 13-445(CON)), 2013 WL 3171502. 234 Federalist Edition [Vol. 2 We do not know what this secret war has cost us in dollars, and we do not know its cost in human lives, either.4 Drone strikes are appealing to the United States for the obvious reason that the use of unmanned aerial vehicles creates no short-term risk to the U.S. personnel who operate them. On the ground, however, U.S. drone strikes are estimated to have killed some 3,000 to 4,000 people in at least three countries (Pakistan, Yemen and Somalia) and perhaps as many as half-a-dozen countries (including Mali, the Philippines, and perhaps Nigeria).5 For the most part, we do not know the identities of those killed by U.S. drone strikes, or the precise reasons they were targeted. We do not even know what percentage of the dead were specifically targeted, as opposed to those who simply became collateral damage in a U.S. strike aimed at someone else.6 How should we evaluate this secret conflict, more than a decade after the September 11 attacks? There is a phrase that was coined by my friend and former professor, Harold Hongju Koh, former Dean of Yale Law School, and more recently the State Department’s Legal Advisor under President Obama. Harold Koh sometimes uses the term “lawful but awful,” though he does not apply that term to the drone war.7 In fact, Koh has been a staunch defender of the legal right of the ad- ministration to wage this particular secret war.8 For me, how- ever, this secret war fits squarely into in the “arguably lawful but nonetheless fairly awful” category. I say this for three very distinct reasons, although they all over- lap to some extent. First, I think this secret war is deeply offensive to core principles of American democracy, in particular to any 4. Noah Shactman, Not Even the White House Knows the Drones’ Body Count, WIRED (Sept. 29, 2012, 8:00 AM), http://www.wired.com/2012/09/drone-body- count/ [http://perma.cc/3WRU-EPWZ]. 5. See COLUMBIA LAW SCHOOL, CENTER FOR CIVILIANS IN CONFLICT, THE CIVIL- IAN IMPACT OF DRONES: UNEXAMINED COSTS, UNANSWERED QUESTIONS 20 (2012); Declan Walsh, US Extends Drone Strikes to Somalia, THE GUARDIAN, June 30, 2011, http://www.theguardian.com/world/2011/jun/30/us-drone-strikes-somalia [http:// perma.cc/JHP9-468X]. 6. CENTER FOR CIVILIANS IN CONFLICT, supra note 5, at 19–20. 7. Harold Hongju Koh, Legal Adviser, U.S. Dep’t of State, “The Obama Admin- istration and International Law,” Keynote Speech at the Annual Meeting of the American Society of International Law 3 (March 25, 2010), available at http://www.state.gov/documents/organization/179305.pdf [http://perma.cc/V94- UA8A]. 8. Id. at 14–15. No. 1] Cross-Border Targeted Killings 235 notion of constitutional checks and balances. Second, I think it undermines core rule of law norms, internationally as well as domestically. And third, I think it is strategically misguided: At best, it is unhelpful; at worst, it is distinctly counterproductive. I. DEMOCRATIC ACCOUNTABILITY I begin with the issue of domestic law and democratic ac- countability. Remember, our Constitution gives Congress vital powers relating to the use of military force. To Congress is giv- en the power to declare war and the power to raise, support, and make rules regulating the armed forces and to make rules concerning “captures on land and water.”9 To Congress is also given the constitutional power to call forth “the militia to exe- cute the laws of the Union, suppress insurrections and repel invasions,” 10 as well as the power to “define and pun- ish . offenses against the law of nations.”11 If I were a member of Congress right now, I would be hop- ping mad. This secret war—which began under President Bush, but accelerated dramatically under President Obama— has gotten us very far away from anything Congress contem- plated in the 2001 Authorization to Use Military Force (AUMF), passed just a few days after the September 11 attacks.12 Go back and look at the language of the AUMF: It states that the President may “[U]se 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 organi- zations or persons, in order to prevent any future acts of inter- national terrorism against the United States by such nations, organizations or persons.”13 Note that although this language gives the executive branch authorization to use force, it does not authorize the use of force against anyone, anywhere, anytime. Rather, it authorizes the 9. U.S. CONST. art. I, § 8, cls. 11–12, 14. 10. U.S. CONST. art. I, § 8, cl. 15. 11. U.S. CONST. art. I, § 8, cl. 10. 12. This discussion of the AUMF draws on my 2013 congressional testimony. See Oversight: The Law of Armed Conflict, the Use of Military Force, and the 2001 Au- thorization for Use of Military Force: Hearing Before the S. Comm. on Armed Servs., 113th Cong. (2013) (statement of Rosa Brooks). 13. Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (codified at 50 U.S.C. § 1541 note). 236 Federalist Edition [Vol. 2 use of force specifically and solely against those organizations and states that planned, authorized, committed, or aided the September 11 attacks, or who harbored those who did. Fur- thermore, the AUMF authorizes force for the sole purpose of preventing future terrorism against the United States by such organizations or states—not for the purpose of preventing all future bad acts committed by anyone anywhere. Even in those terrifying days right after September 11, when the Pentagon and the World Trade Center were still smolder- ing and rescue personnel were still pulling corpses out of the wreckage, Congress rejected a request from the Bush admin- istration to have a more expansive AUMF. The administration initially asked that Congress authorize the use of force to “de- ter and preempt any future acts of terrorism or aggression.”14 But even in that moment of grief, anger, and fear, Congress rightly rejected such an open-ended AUMF, understanding full well that when Congress cedes power to the executive branch, it generally never comes back.15 For much of the last dozen years, the 2001 AUMF provided adequate domestic legal authority both for the conflict in Af- ghanistan and for most U.S. drone strikes outside “hot battle- fields,” since most of the individuals targeted in early U.S. strikes were reportedly senior Taliban or Al Qaeda operatives. But this appears to have changed in the last few years.16 The threat has metastasized: even as U.S. military action has decimated “Al Qaeda Central” and the network of Taliban leaders most active in 2001, new extremist groups have evolved, some inspired by or affiliated with Al Qaeda and the 14. See 147 CONG. REC. S9950-51 (daily ed. Oct. 1, 2001) (statement of Sen. Byrd) (providing the text of the administration’s initial proposal); see also id.
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