These important questions were raised in 2009 and 2010 by Philip Alston, a professor of law at New York University who also served as the UN’s special rapporteur on extrajudicial killing and arbitrary executions. In an extensive official report to the UN, Alston wrote that America’s “strongly asserted, but ill-defined license to kill without accountability is not an entitlement which the United States or other states can have without doing grave damage to the rules designed to protect the right to life and prevent extra-judicial executions.” The report further said, “This expansive and open-ended interpretation of the right to self-defense goes a long way towards destroying the prohibition on the use of armed force contained in the U.N. Charter. If invoked by other states, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos.” The report ended by saying, “Because operators are based thousands of miles away from the battlefield, and undertake operations entirely through computer screens and remote audio-feed, there is a risk of developing a ‘PlayStation’ mentality to killing.”59
In an earlier report to the UN, Alston wrote that it was difficult to make any real assessments on the legality of the CIA’s unprecedented drone campaign because it was veiled in secrecy. He called on the U.S. government to provide more information on how targets were selected and civilian casualties avoided. He also called on the United States to explain the legal basis for its unprecedented drone campaign and to outline how it complied with humanitarian law. If the United States did not do so, Alston warned, it would “increasingly be perceived as carrying out indiscriminate killings in violation of international law.” He also said, “The onus is really on the government of the United States to reveal more about the ways in which it makes sure that arbitrary executions, extrajudicial executions are not, in fact, being carried out through the use of these weapons.”60 Alston added, “Otherwise you have the really problematic bottom line, which is that the Central Intelligence Agency is running a program that is killing significant numbers of people and there is absolutely no accountability in terms of the relevant international laws.”61
The Obama administration was clearly taken aback by Alston’s broadside and felt that some response was necessary to demonstrate that the drone campaign was a legal, responsible, and appropriate response to the terrorist threat that the United States was facing. Harold Koh, legal adviser to the U.S. State Department, was chosen to make that response. In March 2010 Koh gave a speech in Washington, D.C., to the Annual Meeting of the American Society of International Law that for the first time laid out the Obama administration’s rationale for relying on drones:
With respect to the subject of targeting, which has been much commented upon in the media and international legal circles, there are obviously limits to what I can say publicly. What I can say is that it is the considered view of this Administration—and it has certainly been my experience during my time as Legal Adviser—that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.
The United States agrees that it must conform its actions to all applicable law. As I have explained, as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law. As a matter of domestic law, Congress authorized the use of all necessary and appropriate force through the 2001 Authorization for the Use of Military Force (AUMF). These domestic and international legal authorities continue to this day.
As recent events have shown, al-Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this on-going armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks. As you know, this is a conflict with an organized terrorist enemy that does not have conventional forces, but that plans and executes its attacks against us and our allies while hiding among civilian populations. That behavior simultaneously makes the application of international law more difficult and more critical for the protection of innocent civilians.62
Alston subsequently issued a rebuttal to Koh’s statement: “I don’t think we can ask for full transparency. I don’t think the United States is ever going to provide access to all of the information relating to these killings. But until it starts to provide at least some access, we will not be able to conclude that the United States is in fact complying with the law, as Harold Koh insisted.”63
Koh did not respond to Alston’s continued requests for the release of further details. But the Washington Post published an article in support of Koh’s statement, which said, “[Koh] rightly rejected the absurd notion that enemy targets must be provided ‘adequate process’ before the strike occurs…. Mr. Koh’s reaffirmation of the right to self-defense—even outside the confines of an existing armed conflict—is particularly important…. The right of self-defense is inherent and may be exercised against current and future enemies that pose an imminent threat, including those operating outside of traditional combat zones.”64
Regardless of the criticisms from Alston, the Obama administration has continued to refer to the 2001 AUMF signed by President George Bush, which gave the president the authority “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.”
There have been several other interesting legal cases involving drones as well. One of them concerns a forty-year-old Yemeni American named Anwar al Awlaki. Awlaki grew up in Las Cruces, New Mexico, but became devoted to jihad against the United States after 9/11. He moved to Yemen, linked up with al Qaeda in the Arabian Peninsula (AQAP), and became an outspoken supporter of jihad against his former American homeland. His emails and online sermons in Arabic, in which he called Americans “devils,” proved to be inspiration for Nidal Hasan, another American Muslim who went on a shooting spree at the U.S. army base at Fort Hood, Texas, that left thirteen dead. After Hasan’s attack Awlaki said, “Nidal Hasan is a hero.”65
Awlaki’s fiery preaching was also said to have inspired Faisal Shahzad, the failed Times Square bomber.66 In the online jihad magazine Inspire, Awlaki called for the killing of American civilians: “The ideal location [for a bombing] is a place where there are a maximum number of pedestrians and the least number of vehicles. In fact if you can get through to ‘pedestrian only’ locations that exist in some downtown [city center] areas, that would be fabulous.”
Awlaki’s fluent American English and knowledge of the culture and idioms of the West made him an ideal recruiter for disaffected Muslims, like Nidal Hasan, who were living in America. He was called the “bin Laden of the Internet.” But Awlaki proved to be more than just an inspiration. President Obama called him the “leader of external operations for Al Qaeda in the Arabian Peninsula.”67 On another occasion he said that Awlaki “took the lead in planning and directing efforts to murder innocent Americans.”68 Specifically, he was actively involved in the December 25, 2009, “underwear bomber” plot to blow up an airliner flying from Amsterdam to Detroit.69 He was also accused of involvement in an attempt to blow up a United Parcel Service (UPS) plane flying from Yemen using bombs triggered by a cell phone. If this were not enough, he was found to have been plotting with a British Muslim of Bangladeshi decent to blow up a British airliner.70