While lethal U.S. drone strikes have successfully removed many key terrorists from the battlefield, the legal justifications for such actions remains a heavily debated topic in the United States and globally.
“Current U.S. drone policy is devoid of public understanding of the processes through which targeting decisions are made and the domestic and international legal justifications for these decisions,” explains Rachel Stohl, Cipher Brief expert and Senior Associate at the Stimson Center.
Since drone strikes emerged as one of if not the United States’ primary counterterrorism tool in the years after 9/11, U.S. Presidents George W. Bush and Barack Obama have relied on the Authorization for Use of Military Force (AUMF), passed one week after the 9/11 attacks, as the legal basis for U.S. drone strikes against al Qaeda operatives around the world.
The AUMF states: “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.”
In accordance with the AUMF, both Presidents Bush and Obama have asserted a legal right to conduct military operations and drone strikes against al Qaeda – the group responsible for 9/11 – in countries that aided or harbored al Qaeda, namely Afghanistan and Pakistan.
However, in the years since 9/11, al Qaeda has morphed into a globalized jihadist network comprised of affiliate organizations that continue to threaten U.S. security. The U.S. government views current and former al Qaeda-linked groups, such as al Qaeda in the Arabian Peninsula (AQAP), al Shabaab, al Qaeda in the Islamic Maghreb (AQIM), and the Islamic State (ISIS), as within the scope of permissible targets authorized by the AUMF, irrespective of their geographical locations.
“For 15 years, [the U.S.] position has been that there is a state of armed conflict that exists with al Qaeda and the Afghan Taliban and its associated forces, and that the conflict is not limited to some particular location such as Afghanistan,” explains Bobby Chesney, Cipher Brief expert and Professor of Law and Associate Dean for Academic Affairs at the University of Texas Law School. “That no-geographic-limits claim has drawn lots of criticism, especially overseas,” Chesney continues.
Yet the stance taken by the U.S. government continues to be deliberated. Does the AUMF actually authorize the U.S. to conduct drone strikes against al Qaeda affiliates even if they were not in existence at the time of 9/11? What criteria does the President employ when determining a U.S. drone strike target?
Questions also arise regarding the intersection of U.S. drone strikes and international law. Under what conditions is the U.S. permitted to conduct a drone strike against terrorist groups in a foreign country without violating another nation’s sovereignty?
Under the international legal framework, the U.S. has invoked its inherent right of self-defense, outlined in Article 51 of the United Nations Charter, when carrying out military operations against al Qaeda abroad. UN Security Council Resolutions 1368 and 1373, passed days after 9/11, reinforced the United States’ right to respond with military force against those responsible for the September 11 terrorist attacks.
The internationally recognized governments of many countries, including Afghanistan, Yemen, and Libya, have also granted the U.S. permission to conduct drone strikes within their borders. Other states may have permitted U.S. drone strikes in private—for example, Pakistan—so as to not lose face with their citizens.
Certain countries, however, have not explicitly approved U.S. drone strikes in their territory and continue to harbor terrorist groups. In such instances, the U.S. takes the position that these states are either unwilling or unable to take the necessary measures to combat terrorist groups operating within their borders, and reserves the right to take action necessary to combat these groups.
“The U.S. government takes the view that, in such cases, the host-state government in effect has waived any objection to a necessary-and-proportionate Article 51 response against that terrorist group that takes place in its territory,” explains Chesney.
This stance was outlined in 2007 by then-presidential candidate Barack Obama, who stated, “If we have actionable intelligence against bin Laden or other key al-Qaida officials...and Pakistan is unwilling or unable to strike against them, we should.”
Although this position remains highly controversial internationally, more countries have come on board in recent years following the rise of ISIS.
“This view has many critics, especially overseas, though those criticisms dropped off sharply after the Islamic State surged to prominence and it became necessary to rely on this exact argument in order to justify use of force against the Islamic State inside Syrian territory without Syrian President Bashar al-Assad’s consent,” writes Chesney.
While questions remain about the legality of U.S. drone strikes against terrorist targets around the world, the attacks are not likely to stop with the new administration. After all, President-elect Donald Trump has expressed his intentions to intensely bomb ISIS, which probably means drone strikes will remain part of the arsenal.
Bennett Seftel is the Deputy Director of Editorial at The Cipher Brief. Follow him on Twitter @BennettSeftel.
