Transfer Command of Drone Operations from CIA to Military
May 1, 2012

Because the US treats many of the most important constraints on the use of force as matters of discretionary prudence rather than legal requirements, the US approach would not forbid the Russians to target an alleged Chechen militant in New York, or the Chinese a Uighur separatist in Washington, DC, if they said they were at war with these groups and the US didn’t apprehend them. That is a deeply troublesome precedent to set. If the US is in fact willing to live within these constraints as a matter of policy, it should be willing to promote wider observance of them as a matter of law.

In a statement at the Woodrow Wilson Center on April 30, 2012, chief US counterterrorism advisor John Brennan sought to clarify and justify the US use of aerial drones in targeted killings in Pakistan, Yemen, and elsewhere.

He acknowledged that all targeted killings are governed by the requirements of international and domestic US law. At the same time, he asserted, consistent with previous statements of administration officials, that targeted killings are justified under the laws of war against anyone who is “part of” al Qaeda, the Taliban, or associated forces, even in situations far from a recognizable battlefield. However, including anyone ambiguously considered “part of” an armed group as a valid military target exceeds what is permissible under the laws of war. During an armed conflict between a state and a non-state armed group, it is lawful to target only persons taking a direct part in hostilities. This would include individuals planning and directing operations, but not those linked to the armed group in a non-operational way.

Moreover, “part of” is an elastic standard, and given the unilateral way in which it is being applied, it is dangerous to suggest that only the laws of war are relevant. Rather, in situations away from a recognized battlefield, the more appropriate standard is found in international human rights law. It permits the use of force only as a last resort to stop an imminent threat to life, not simply because someone is “part of” a violent organization or may have committed acts of violence in the past. Brennan mentioned these standards – pledging that the US will use lethal force not to punish individuals for past acts, but against those it believes are planning or carrying out future attacks, and only in parts of the world where arresting a suspect is not feasible. But he treats these as discretionary, not as legal requirements. In the case of the “imminence” requirement, he incorrectly suggests it is legally binding only when US citizens are targeted, though in fact it applies to all people, irrespective of citizenship.

Addressing these concerns is all the more important because, as Brennan acknowledged, many nations are seeking and will obtain drone technology. He said the administration was “very mindful that as our nation uses this technology, we are establishing precedents that other nations may follow, and not all of them will be nations that share our interests or the premium we put on protecting human life, including innocent civilians.” Because the US treats many of the most important constraints on the use of force as matters of discretionary prudence rather than legal requirements, the US approach would not forbid the Russians to target an alleged Chechen militant in New York, or the Chinese a Uighur separatist in Washington, DC, if they said they were at war with these groups and the US didn’t apprehend them. That is a deeply troublesome precedent to set. If the US is in fact willing to live within these constraints as a matter of policy, it should be willing to promote wider observance of them as a matter of law.

Brennan says the administration is committed to “greater transparency,” but then suggests that this commitment is satisfied – if not exceeded – by his speech. Despite administration assertions that “innocent civilians” have not been injured or killed, except in the “rarest of circumstances,” there has been no clear accounting of civilian loss or opportunity to meaningfully examine the administration’s assertions. Moreover, given that the CIA is one of the least transparent agencies, with no tradition of public accountability, Human Rights Watch repeats its call to transfer command of drone operations to the US armed forces.