1-10-2013By Daphne Eviatar
Law and Security Program
Last Spring, White House National Security Advisor John Brennan — Obama’s nominee to lead the CIA –gave a speech at the Woodrow Wilson Center on “the Efficacy and Ethics of U.S. Counterterrorism Strategy.” Praising President Obama for what he billed as unprecedented transparency in counterterrorism operations, Brennan acknowledged for the first time what we all already knew: that “the United States Government conducts targeted strikes against specific al-Qaeda terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.”
Brennan then proceeded to explain who the United States believes it’s entitled to kill and why under U.S. and international law. According to Brennan: “In this armed conflict, individuals who are part of al-Qaeda or its associated forces are legitimate military targets.”
But Brennan was wrong. The vast majority of international legal experts agree that in an armed conflict between a state and a non-state group, such as a terrorist organization like al-Qaeda or its affiliates, only those individuals directly participating in hostilities, or performing a “continuous combat function” with the terrorist group, are lawfully targetable. The al-Qaeda cook, doctor or delivery boy is not a lawful military target.
In private, some administration officials have acknowledged that Brennan’s claim was an overstatement. But the administration has never officially disavowed it, or said that’s not the policy the United States follows.
That’s a big problem. Increasingly, the U.S. drone war is seen as an example of arrogant and lawless U.S. power that violates other countries’ sovereignty and tramples foreigners’ rights. As retired Gen. Stanley McChrystal told Reuters recently: “The resentment created by American use of unmanned strikes… is much greater than the average American appreciates. They are hated on a visceral level… ”
Indeed, Ken Ballen, a former federal prosecutor and president of Terror Free Tomorrow, told an audience at the New America Foundation yesterday that recent surveys show nine out of 10 residents of the Federally Administration Tribal Areas in Pakistan, which the United States has used drones to strike, oppose U.S. military action there. And in Yemen, al-Qaeda in the Arabian Peninsula, the al-Qaeda affiliate U.S. officials say they most fear, has grown exponentially since the U.S. intensified its drone war beginning in 2009. Yemen expert Gregory D. Johnsen blames the U.S. drone war.
While there may be some legitimate role for drones to play in fighting terrorists plotting attacks on the United States, Brennan’s articulation of U.S. drone policy and its justification is far broader than either the law or wise strategy would allow.
At his confirmation hearing, Brennan should be asked directly to address the legal justification he offered for the drone program last April and to explain whether he continues to believe that all members of al-Qaeda, the Taliban or “associated forces” are targetable anywhere in the world with lethal force.
He should also be asked whether that doesn’t create a dangerous precedent for other countries interpreting international law, especially since some 70 other nations have or are in the process of acquiring drones.
Brennan should be asked, too, what level of transparency he would support regarding the CIA’s use of drones. Historically, it’s been impossible to get the agency to say anything about its drone program or even its interpretation of the laws it’s required to follow. Would Brennan support a more open flow of information about how the CIA is carrying out targeted killings, if it continues to do so?
These are just some of the many questions Brennan will need to answer to win the confidence of the American people and our allies around the world. But clarifying the United States’ lawful and limited authority to engage in targeted killings of only those individuals who are actually fighting or imminently threatening us would be a very good start.