The use of drones to hunt down and execute alleged terrorists and their accomplices has caused much controversy, both at home and abroad, especially in recent years. US drone strikes have killed thousands in Pakistan, hundreds in Yemen and dozens in Somalia, including children and civilians as well as militants. By one estimate, less than 2% of the more than 3,000 casualties in Pakistan were “high-profile targets,” while more than 20% were children or civilians. Many observers have questioned the legality and effectiveness of the use of drones in the fight against terrorism. Here is an explanation of the issues and arguments.

Are Drone Strikes Legal?

The United States law cited as the basis for the use of drone strikes is known as the 2001 Authorization for the Use of Military Force, or AUMF. The law, passed a week after the 9/11 attacks, authorizes the President “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.”

“All necessary and appropriate force against…persons [the President] determines” to pose a threat to the US is very broad language, so it seems fairly clear that under United States law, the use of drones is legal. In fact, in a 2010 speech State Department Legal Advisor Harold Koh specifically cited the AUMF as the Obama administration’s justification for the drone program (emphasis added):

“It is the considered view of this Administration … that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war … the United States is in an armed conflict with Al Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law. As a matter of domestic law, Congress authorized the use of all necessary and appropriate force through the 2001 Authorization for Use of Military Force (AUMF). These domestic and international legal authorities continue to this day.”

Can Drones be Used Against Americans?

Four Americans have already been killed in drone strikes abroad and recent reports indicate that the administration is considering a strike on a fifth. In September 2011, Anwar al-Awlaki and Samir Khan, both American citizens, were killed by a drone strike in Yemen. Weeks later, al-Awlaki’s 16-year-old son, Abdulrahman (also a US citizen), was killed in another drone strike in Yemen. Jude Kenan Mohammed, a 20 year-old American was killed by a drone in Pakistan in late 2011.

Many observers denounced these killings as a violation of the citizens’ constitutional rights, especially the protections afforded by the Fifth Amendment, which states that no citizen may “be deprived of life, liberty, or property, without due process of law” and the Sixth Amendment, which guarantees citizens ” a speedy and public trial, by an impartial jury” in “all criminal prosecutions.”

Asked about his decision to target and kill Anwar al-Awlaki, President Obama (formerly a constitutional law professor) called it “an easy one.” In response to a question about the death of Abdulrahman, senior White House advisor Robert Gibbs infamously replied that he “should have [had] a far more responsible father.” For well over a year after these strikes, the administration resisted disclosing the legal justification for targeting American citizens. However, in February 2013, an undated, 16-page “white paper” from the Department of Justice leaked to the media that informally outlined the administration’s legal reasoning.

According to the memo, “a U.S. operation using lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force would be lawful” if:

1) An “informed, high-level” official of the U.S. government determines that the target has been “recently” involved in “activities” posing a threat of a violent attack and “there is  no evidence suggesting that he has renounced or abandoned such activities.”

2) Capturing the target is “infeasible” or would pose an “undue risk” to U.S. personnel involved in such an operation.

3) The strike is carried out according to “law of war principles.”

The document also cites the AUMF and the president’s constitutional obligation to protect the nation’s security as components of the legal reasoning, concluding that “a lethal operation conducted against a U.S. citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense.” The implication seems to be that the protections afforded to accused criminals do not apply to citizens deemed to be engaged in adversarial military operations.

What About International Law?

The UN charter guarantees all states the inherent right to self-defense. Considering that al-Qaeda has attacked the United States and continues to plot attacks against it, some scholars have concluded that the US has a right to conduct military operations against al-Qaeda and its affiliates under a legal doctrine known as jus ad bellum (“right to war”). However, the case that the drone program satisfies the companion doctrine of jus in bello (“justice in war”) is much weaker. Jus in bello typically incorporates the notions of proportionality and protection of civilians.  Considering the high civilian death toll and the low percentage of high-profile targets eliminated by the drones, there is little evidence that the drone program meets this standard.

Another important question arises from the fact that the drone program is conducted largely by the CIA rather than the military – namely, can an intelligence agency shield itself behind laws of war meant to apply to military forces? As Ross Newland, who was a senior official at the C.I.A. when the agency was given authority over the program, told the New York Times, “This is not an intelligence mission.” While the Obama administration tried to shift responsibility for the drone program to the Defense Department last year, Congress has proved a stumbling block in that respect.

UN officials and prominent human rights groups have concluded that at least some US drone strikes have contravened international laws and may have even constituted war crimes. Even if this is true, there is virtually no way any Americans will ever be prosecuted for violations of international law. The United States is not a participant in the International Criminal Court, where such crimes are tried, and in addition to its veto power on the UN Security Counsel, there is a US law on the books that allows the country to use “all means necessary and appropriate” to bring about the release of any US or allied personnel detained or imprisoned by the court.

Are Drones Effective?

This is where the pro-drone camp is on its shakiest ground. Drones can cost millions to manufacture and thousands of dollars per flight-hour to operate, but the return on that investment is likely negative. Robert Grenier, who headed the CIA’s counter-terrorism center from 2004 to 2006 and was previously a CIA station chief in Pakistan, told the Guardian in 2012 that the drone program “needs to be targeted much more finely…We have gone a long way down the road of creating a situation where we are creating more enemies than we are removing from the battlefield. ”

In a 2013 article for the Cairo Review, Nabeel Khoury, the State Department’s deputy chief of mission in Yemen from 2004 to 2007, wrote that “the U.S. generates roughly forty to sixty new enemies for every AQAP [al Qaeda in the Arabian Peninsula] operative killed by drones.”

Considering that even killing actual terrorists may create sympathy for their cause, the high ratio of civilian deaths (estimated to be as high as 10 civilians for each militant in some areas) can only be expected to engender further anger and resentment.

In a recent interview with The Intercept, one former drone operator describes the drone program as “death by unreliable metadata,” noting “We’re not going after people – we’re going after their phones, in the hopes that the person on the other end of that missile is the bad guy.” While drone strikes are often referred to with the euphemism “targeted killings,” there is substantial evidence that they’re often not targeted very well.

Conclusions

Whatever one thinks of the morality of using drones, it is probably legal under both domestic and international law to target and kill foreign militants if they can be reasonably suspected of posing an imminent threat to US national security. However, the extremely vague definitions of suspicion and imminence seriously call into question whether targets are receiving adequate due process to determine if they actually meet these criteria.

The Justice Department’s “white paper” cited above suggests that active intelligence about a specific attack may not be needed in order to justify a targeted strike. Rather, the standard seems to be the determination by an “informed, high-level” official that the target “recently” engaged in “activities” that could pose a threat at some future time. Again, these terms are not specifically defined.

There really is no convincing argument that the targeting of American citizens does not violate the Fifth and Sixth Amendments to the US constitution. Similarly, it is difficult to argue that the extremely high civilian death toll is proportionate to the threat posed by al-Qaeda and other militants, especially when one considers that it may actually be exacerbating the problem.

Basically, the program itself is probably legal, but the way it has been executed almost certainly breaches both American and international laws. More importantly it is expensive, inaccurate and ineffective. It should be dramatically scaled back and made much more transparent.  As President Obama himself once said, “Just because we can do something, doesn’t mean we should.”