Court Decision Supports Broader Disclosures on US Drone War

The Second Circuit Court of Appeals’ decision yesterday that the Obama administration had waived its right to refuse to turn over legal memos justifying the killing of a U.S. citizen has implications far beyond disclosure of the specific documents at issue in that case.  Although the U.S. government is being careful not to talk about it now, the recent spate of U.S. drone attacks in Yemen that’s killed some 55 people since Saturday is the new elephant in the room:  what is the government’s legal justification for lethal attacks in Yemen? Is the United States strictly targeting al Qaeda operatives who pose an imminent threat to Americans, or has the U.S. intervened in a civil war in Yemen on behalf of the Yemeni government?

Congress authorized a war against the al Qaeda that attacked us on 9/11, not a war on Yemenis who don’t care for their government. If the administration is not using war authority, it must operate under international human rights law, which applies outside an armed conflict and, as Jonathan Horowitz explains, more strictly limits who may be targeted than the laws of armed conflict.  So President Obama, which is it?

The reasoning of the Second Circuit panel’s opinion in the case about the Anwar al Awlaki killing suggests the Obama administration is going to have to reveal its legal justification for other drone strikes in Yemen, too. If it wants support for its policy at home and abroad, it should do that now rather than waiting for a court order.

The court’s opinion cites several speeches made by administration officials, including then-State Department Legal Adviser Harold Koh, then-Defense Department General Counsel Jeh Johnson, and Attorney General Eric Holder, who claimed that U.S. lethal operations conducted with unmanned aerial vehicles, or drones, comply with all applicable law.

Ryan Goodman also set out in his post yesterday examples of how the U.S. government has publicly attempted to justify its use of drones to kill foreigners outside armed conflict zones.  Specifically, last May, the White House issued a “Fact Sheet” titled “U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities.”  It explains:

[T]he President has approved, and senior members of the Executive Branch have briefed to the Congress, written policy standards and procedures that formalize and strengthen the Administration’s rigorous process for reviewing and approving operations to capture or employ lethal force against terrorist targets outside the United States and outside areas of active hostilities.  Additionally, the President has decided to share, in this document, certain key elements of these standards and procedures with the American people so that they can make informed judgments and hold the Executive Branch accountable.”  The document then goes on to explain the rigorous standards it’s adopted for using lethal force to kill “terrorist suspects” outside “areas of active hostilities.”

As Ryan clearly points out, it sure doesn’t look like the U.S. government is following those standards in Yemen. On the contrary, it looks like the United States has taken up arms against a domestic insurgency on behalf of the Yemeni government. That doesn’t fall within the guidelines set out in the May 23, 2013 memo, and it’s exactly what administration officials have publicly said the U.S. government is not doing, as Ryan notes. It’s also not what Congress approved in the 2001 Authorization for Use of Military Force, which calls into question whether it complies with domestic law.

Given how much the White House has disclosed and claimed already (truthfully or not) about its so-called “targeted killing” program, the reasoning of the Second Circuit suggests it cannot continue to conceal the full (and real) story.  Rather than wait for another embarrassing court order, it should release (with sensitive classified information redacted, if necessary) all of the relevant decisional legal memos and policy documents now. 

About the Author(s)

Daphne Eviatar

Director of the Security with Human Rights Program at Amnesty International USA She advocates for US compliance with international law in US national security policy. Follow her on Twitter (@deviatar).