In April, the Center for American Progress explored key questions about the legality of the United States’ drone program. The issues surrounding drones are about to return to the front pages with the expected release of new information by the Obama administration on civilian casualties from drone strikes, as well as some of the text of President Barack Obama’s classified 2013 Presidential Policy Guidance governing strikes outside “areas of active hostilities.” In addition, a recent speech by Brian Egan, legal adviser of the U.S. State Department, clarified where the guidance applies and how it relates to law of armed conflict requirements. The speech has made it possible to update some of the analysis in the earlier brief.
Is the drone program part of the ongoing war against Al Qaeda or a separate counterterrorism effort?
The first question asked in the April brief was: “Is the drone program simply a part of the ongoing U.S. war against Al Qaeda, the Taliban, and associated forces that began in Afghanistan? Or is it somehow a separate counterterrorism effort outside the law of armed conflict with particular rules and policies?”
The U.S. government’s view is that the drone program in Yemen, Somalia, and the border regions of Pakistan is part of the ongoing U.S. war with Al Qaeda being waged pursuant to the 2001 congressional authorization to use military force because the drones there target enemy fighters with Al Qaeda or associated forces. The U.S. government claims that international law allows the United States to use military force against Al Qaeda wherever its members or associated forces are fighting, subject only to sovereignty constraints. This is a broad interpretation of international law; a better analysis would be that international law permits the United States to use force against Al Qaeda and its associated forces only in countries where there is an ongoing armed conflict in which Al Qaeda or its associated force is a party.
Accordingly, the circumstances in both Yemen and the border regions of Pakistan do in fact support the conclusion that the drone strikes in those places are part of the war still being waged against Al Qaeda and associated forces in Afghanistan and elsewhere.
The strikes in the border regions of Pakistan are perhaps most clearly part of the war. Fighting in Afghanistan has long spilled over the borders from Pakistan, and Al Qaeda and Taliban forces have retreated there and reorganized to carry out new attacks. That a war in one country may spill over the borders into a neighboring country is neither new nor controversial.
The drone strikes against Al Qaeda in the Arabian Peninsula in Yemen are also part of the war. Al Qaeda in the Arabian Peninsula has been an organized ally or a part of Al Qaeda since at least 2009. It has been involved in the fighting that has engulfed that country for many years and has repeatedly planned and executed attacks against the United States and other targets from Yemen. Accordingly, the legal criteria for the existence of war—an organized armed group and a threshold level of intensity of violence—are met.
It is less clear whether the armed conflict with Al Qaeda includes the U.S. drone strikes targeted at members of the al-Shabaab organization in Somalia because the public record about the relationship between al-Shabaab and Al Qaeda is unclear. The U.S. government has not said that its strikes target the al-Shabaab organization because it is an associated force of Al Qaeda. Rather, it justifies its drone strikes in Somalia on the basis that the individual al-Shabaab fighters who are targeted are also affiliated with Al Qaeda.
But the mere presence of Al Qaeda members in Somalia is not enough to meet the required criteria for expanding the war against Al Qaeda to that country, and there is insufficient public information to determine if those criteria are in fact met. There is no doubt that there is an ongoing war in Somalia and that al-Shabaab is a participant in that conflict, but the United States has not publicly labeled the al-Shabaab organization as an associated force of Al Qaeda. Nevertheless, there is information pointing to an alliance between al-Shabaab and Al Qaeda. A high-ranking leader of al-Shabaab publicly pledged allegiance to Al Qaeda, before being killed in a U.S. drone strike. In addition, a recent U.S. Justice Department press release announcing criminal charges against an alleged al-Shabaab terrorist filed in a U.S. court described the group as allied with Al Qaeda. But it is difficult to assess the legality of using military force against members of al-Shabaab without a better understanding of the relationship between that terrorist group and Al Qaeda.
Does the law of armed conflict apply?
The second question in the April brief—“does the law of armed conflict apply to drone strikes conducted as part of the war, even if they occur outside Afghanistan?”—has a straightforward answer.
As outlined in the earlier brief, if the drone strikes are part of the war with Al Qaeda, there is no doubt that the law of armed conflict applies. The United States has acknowledged that the law of armed conflict applies to drone strikes, whether they are part of the war or a separate military operation.
How does the guidance relate to the law of armed conflict and where does it apply?
The next two-part question in the earlier brief—“how does the Presidential Policy Guidance of 2013 concerning the use of drone strikes ‘outside areas of active hostilities’ relate to law of armed conflict requirements?” and “in what countries does the [guidance] apply?”—was directly addressed last month.
State Department Legal Adviser Brian Egan explained in a speech in April that the Presidential Policy Guidance imposes heightened policy standards for determining whether to launch a drone strike on a particular target that exceed the requirements of the law of armed conflict for lethal targeting. He also noted that the president would be free to take lethal action consistent with the law of armed conflict even if the standards of the guidance are not met, as the guidance contains policy not legal standards. Egan noted that the guidance does not currently apply to Afghanistan, Iraq, and Syria and, in follow-up questioning, indicated that it also did not apply in Pakistan. The clear implication of his remarks is that it does apply in Yemen and Somalia.
An examination of the summary of the guidance that is available shows that it does establish conditions for approving drone strikes that are stricter than what the law of armed conflict requires. For example, the guidance prohibits drone strikes except against particularly dangerous enemies, except when there is near certainty that civilians will not be killed, and except when capture is not feasible. These are all more restrictive rules than law of armed conflict requirements, which prohibit targeting civilians but permit the targeting of valid military objectives, including enemy fighters, so long as the anticipated harm to civilians is not excessive in relation to the expected military advantage.
Thus, evaluating whether any particular drone strike, including in areas covered by the Presidential Policy Guidance, was legal depends on whether it was part of the war and, if so, whether it complied with the requirements of the law of armed conflict, not the policy requirements in the guidance.
The release of additional information about the impact on civilians and the guidance provides an opportunity to further public understanding that the law of armed conflict applies to the drone strikes at least in Yemen and Pakistan and that when applying the Presidential Policy Guidance, the United States is going beyond what the law requires. The administration also needs to clarify the points raised in the April brief, including identifying all of the countries in which it has conducted drone strikes and clarifying how it ensures that the CIA complies with the law of armed conflict.
We can then move on to debate the effectiveness of U.S. drone strikes and what lessons should be learned about the future conduct of a war now in its 15th year.
Kate Martin and Ken Gude are Senior Fellows with the National Security team at the Center for American Progress.