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Commentary

A new Legal Framework Needed to Address Drones

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A MQ-9 Reaper unmanned drone comes into land at Kandahar Airbase in Helmand, Afghanistan. Source: UK Ministry of Defence

To what extent should a country preserve the rights of its citizens abroad who plan attacks against it? This question led some to protest the targeted killing of Anwar al-Awlaki in 2011, an American citizen and high-ranking al-Qaida member. Writing in the Daily News in 2011, Ron Paul, former Texas congressman and former presidential candidate, argued shortly after a drone strike killed the al-Qaeda leader, “Awlaki was a U.S. citizen. Under our Constitution, American citizens, even those living abroad, must be charged with a crime before being sentenced. As President, I would have arrested Awlaki, brought him to the U.S., tried him and pushed for the stiffest punishment allowed by law. Treason has historically been judged to be the worst of crimes, deserving of the harshest sentencing. But what I would not do as President is what Obama has done and continues to do in spectacular fashion: circumvent the rule of law.”

In dealing with terrorists linked to the September 11 attacks or involved in planning future attacks like al-Awlaki, the United States relies heavily on the Authorization for Use of Military Force (AUMF), a joint resolution passed by the U.S. Congress in 2001 following the September 11 attacks. Although the document addresses the country’s position regarding foreigners involved in terrorism, it lacks the procedure for dealing with Americans engaged in terrorism abroad. As a result, it is unclear whether the United States has an obligation to uphold certain guaranteed rights, specifically due process.

Small numbers of Americans have engaged in terrorism abroad, and as America confronts nonstate actors, small numbers of Americans will continue to engage in activities that target the United States. The United States will continue to face a lack of protocol. As a result, it is necessary that Congress enact legislation that specifically addresses targeting Americans abroad.

It is important to note that targeted killings are often performed using drones to lower the risk to U.S. service personal. Therefore, much of the controversy over drones is relevant when analyzing targeted killings. James Jay Carafano, former executive editor of the Defense Department’s Joint Force Quarterly believes the controversy regarding the use of drones to target Americans abroad is “just a side show…for those who really have had it with the president’s drone strikes, the oversight issue is just a stand-in for their bigger complaint…they want new rules…but the rules are based on well-established ethical principles known as the Just War Doctrine.” Carafano is correct in emphasizing that current policies are based on Just War Doctrine and those arguments against drones stem from opponents seeking a new set of rules.

However, the Doctrine fails to address particular concerns that opponents have when it comes to actions against Americans while overseas. The Doctrine states that the “weapons used in war must discriminate between combatants and non-combatants. Civilians are never permissible targets of war, and every effort must be taken to avoid killing civilians.” While a distinction must be made between combatants and non-combatants in terms of terrorist attacks and planning, what constitutes a combatant? Terrorism blurs the lines between combatants and non-combatants, and it is this ambiguity that must be clarified.

Some claim that targeting American citizens abroad denies them their constitutional due process. Richard N. Haass of the Council on Foreign Affairs argues “it can and has been argued that a citizen who joins a terrorist organization abroad at war with this country forfeits his right to due process.” Citizenship can be revoked by “entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state.” While not recognized by foreign nations as sovereign, terrorist groups could be considered a hostile foreign army, in which case the U.S. government could revoke the citizenship of their members. With this however, it would be helpful to have legislation specifically stating that joining a terrorist organization abroad provides the legal grounds to revoke citizenship.

In dealing with nonstate actors, the United States relies primarily on the AUMF, which 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.” AUMF addresses terrorists involved with the September 11 attacks, but fails to give the president the authority to act against terrorist groups unrelated to the September 11 attacks.

As John B. Bellinger III, former Legal Advisor to the National Security Council argues, “As U.S. forces continue to target terrorist leaders outside Afghanistan, it is increasingly unclear whether these terrorists, even if they are planning attacks against U.S. targets, are the same individuals, or even part of the same organization behind the 9/11 attacks…moreover, no law, including this act, contains specific provisions for killing terrorists who are U.S. citizens.”

The United States addressed this issue in the “Department of Justice White Paper” when, due to a lack of legislation, they were forced to create a document justifying the killing of a senior operational leader of a terrorist group. It addresses the protocol for dealing with U.S. citizens who are the head of al-Qaida or associates of al-Qaida, but explicitly fails to address Americans in leadership positions in terrorist organizations. Without adequate legislation, time is spent deliberating how to deal with each individual terrorist, giving enemies of the state more time to plan and execute their attacks. To address this problem, the U.S. Congress must pass appropriate legislation to address how the United States deals with American terrorists abroad.

In the shift to address the threat posed by nonstate actors, the AUMF was enacted to provide authorization to confront threats to the United States. While the AUMF authorizes the president to take action against those related or involved in the September 11 attacks, it does not give him the power to act against new or unrelated organizations, nor the power to act against Americans. Proper legislation must be enacted to address problems of current laws concerning the targeted killings of American citizens abroad. These laws make the processes for dealing with American terrorists less subjective and clear to both citizens and to foreign nations.

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