DRONE STRIKES: THE LEGALITY OF U.S. TARGETING TERRORISTS ABROAD – PART II

Part II: In Which Countries May the U.S. Conduct Drone Strikes?

…the ongoing armed conflict between the United States and al-Qaeda is not confined to the territory where the September 11 plot was hatched. Nor is the U.S. right to defend itself against imminent threats posed by al-Qaeda restricted to only Afghanistan. While al-Qaeda and its associated forces have metastasized to different parts of the world, they have maintained their intent to strike the United States and kill its citizens wherever they may be. The United States must continue to deter and eliminate that threat with drone strikes and any other means at its disposal.

Congressional Authorization

As an initial matter, it should be noted that U.S. armed forces possess the domestic authority to use force against al-Qaeda wherever its operatives may be located and found to pose a threat to U.S. national security. Days after the September 11 attacks, Congress passed the Authorization for Use of Military Force. The AUMF’s stated purpose is “to prevent any future acts of international terrorism against the United States” by any person, organization, or nation that the President determines to have “planned, authorized, committed, or aided” the September 11 attacks. To achieve that end, the President may “use all necessary and appropriate force against those nations, organizations, or persons.”

Congress attached no temporal or geographic limitations to its authorization. Nothing in the AUMF limits U.S. forces from pursuing al-Qaeda outside the borders of Afghanistan or requires U.S. forces to cease hostilities upon achieving a particular military objective. As long as a person, organization, or nation is found to have planned, authorized, committed, or aided the September 11 attacks, the President may use all force he deems necessary and appropriate against that person, organization, or nation to prevent any future act of terrorism against the United States.

Neither the U.N. Charter nor Security Council Resolution 1368 places geographic limitations on the right of self-defense.

Geographic Constraints on Targeting a Transnational Threat?

…the United States has every right to defend itself against al-Qaeda and strike it wherever it operates. Indeed, throughout its history the United States has lawfully defended itself against attacks made by non-state actors operating from the territories of nations with which the United States was not at war. As related by Professor Jordan J. Paust of the University of Houston Law Center:

In 1817 U.S. forces attacked and temporarily occupied Amelia Island (near Jacksonville, Florida), then claimed by Spain, to thwart attacks from “pirates, smugglers, and privateers” using the island as a base to attack U.S. shipping.

Similarly, from 1814 to 1818, “the United States claimed self-defense in partial justification for use of force against Seminole Indians and former slaves…in response to their attacks emanating from Spanish Florida.”

In 1916, the United States used armed force on Mexican territory during its pursuit of Francisco “Pancho” Villa in response to his attacks on towns in Texas and New Mexico.

In 1998, in response to the terrorist bombings of U.S. embassies in Kenya and Tanzania, the United States launched cruise missile strikes against targets in Afghanistan and Sudan. Notably, the United States justified its strikes based on “the right of self-defense confirmed by Article 51 of the Charter.”

Importantly, in none of these instances did the hostilities between the United States and the non-state actors—pirates, raiders, and terrorists—rise to a level of an armed conflict, but they were rather exercises of the inherent right of self-defense.

The right to attack enemy forces wherever they may be makes sense at a basic level within the context of an armed conflict. When war was declared against Germany and Japan in December 1941, the United States did not restrict its military objectives to expelling German forces from France, but confronted them in several other nations with which the United States was not at war.

A Question of Consent

Press reports indicate the former to be the case, at least at present, because the governments of Pakistan and Yemen have consented to the U.S. strikes.

In September 2012, The Wall Street Journal reported that the U.S. and Pakistani governments have an arrangement that permits the United States to target al-Qaeda and Taliban militants while allowing Pakistani officials to maintain a level of consensual ambiguity. According to the press report, for many years the CIA has faxed the Inter-Services Intelligence (ISI), Pakistan’s intelligence service, on a regular basis to outline “broad areas” of airspace within Pakistan where the United States intends to conduct drone strikes. Without formally endorsing a drone strike, the ISI would acknowledge receipt of the fax and clear the airspace identified by the CIA, thereby giving implied if not express consent to the United States to conduct drone operations.

There is no such ambiguity about U.S. drone strikes in Yemen. In a September 2012 interview described in The Washington Post, Yemeni President Abed Rabbo Mansour Hadi is quoted as saying in regard to U.S. targeted strikes against Al-Qaeda in the Arabian Peninsula (AQAP) that “[e]very operation, before taking place, they take permission from the president.”

Consent, implicit or explicit, given by government representatives in countries such as Pakistan and Yemen is certainly desirable, but such consent is not absolutely necessary under international law. The United States must be prepared to defend itself against al-Qaeda even in nations that expressly withhold their consent. The United States has so acted in the past.

Of course, the United States should not violate the sovereignty of another nation lightly or without clear cause. Yet as former State Department Legal Adviser Abraham Sofaer stated in 1989, sovereignty cannot act as an absolute bar to the lawful exercise of self-defense:

[T]erritorial integrity is not entitled to absolute deference in international law, and our national defense requires that we claim the right to act within the territory of other States in appropriate circumstances, however infrequently we may choose for prudential reasons to exercise it.

Sofaer went on to state that the United States supports “the legality of a nation attacking a terrorist base from which attacks on its citizens are being launched, if the host country either is unwilling or unable to stop the terrorists from using its territory for that purpose.” In situations in which a nation is either unwilling or unable to suppress a threat to the United States posed by al-Qaeda operatives within its borders, the United States has a right under international law to suppress that threat with force, even without the consent of the nation concerned. The “unwilling or unable” doctrine is widely accepted under international law, although the limits of the doctrine are not fully defined.

Steven Groves is Bernard and Barbara Lomas Senior Research Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.

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