Christopher Faulkner and Jeff Rogg
On September 30, 2011, a hunting party of US drones found its quarry while flying over the desert in Yemen. They fired Hellfire missiles at the vehicle carrying Anwar al-Awlaki, a New Mexico–born, firebrand cleric, whom the Barack Obama administration accused of being an operational leader of al-Qaeda in the Arabian Peninsula. The killing of al-Awlaki was the result of a multiyear operation involving the CIA, Joint Special Operations Command, and allied foreign intelligence services. That same morning, President Obama heralded the strike as a counterterrorism success. But ten years after al-Awlaki’s death and twenty years after 9/11, the United States must reconsider the precedents and prospects of its drone wars.
Counterterrorism Coup or Constitutional Crisis?
In the years following al-Awlaki’s killing, a chorus of legal scholars and journalists discussed and debated the circumstances surrounding the strike. The case was unprecedented in many respects: The president of the United States had personally overseen a secret executive branch process leveraging the massive capabilities of the US intelligence community and military to extrajudicially kill an American citizen. The use of technologically advanced surveillance and targeting systems in the form of weaponized drones also lent weight to those who believed the killing was an assassination or even an execution.
From the Magna Carta to the US Constitution, citizens have sought ways to protect themselves from the arbitrary exercise of sovereign power. The drone strike on al-Awlaki reversed this historical process with an executive process. From the so-called “Terror Tuesday” or “targeting Tuesday” meetings where President Obama personally approved targets for drone strikes to the drafting of the legal logic justifying the extrajudicial killing of an American citizen, the strike on al-Awlaki was the result of decision making within the executive branch. Completely absent from the proceedings was the judiciary, which acts as a crucial buffer and neutral arbiter between the citizen and the executive.
In its own defense, the Obama administration argued that due process was not the same thing as judicial process and presented the test that it used to justify the targeted killing. While some observers have emphasized the narrowness of the legal standard, it was crafted specifically to target al-Awlaki, therefore reinforcing just how discretionary this exercise of executive power was. Furthermore, it was conceived of and adjudged constitutionally sufficient by attorneys who had previously opposed executive overreach during the Bush administration.
The Obama administration’s legal test also suffered an internal contradiction by the standard of the administration’s own actions. The Obama administration claimed that capturing al-Awlaki was not feasible, and yet it risked American lives on the ground in Somalia, Libya, Pakistan, and yes, even Yemen in missions to capture or kill terrorists or rescue hostages. In the case of al-Awlaki, the Obama administration risked the Constitution in using unmanned machines to kill an American citizen from the safety of the skies.
Perhaps the foremost principle in applying the Constitution to counterterrorism is that we must not destroy that which we are trying to defend. While there were apparently several procedural layers that led to al-Awlaki’s killing, too much secrecy enshrouded the bureaucratic process of the executive branch playing judge, jury, and executioner. As a result, the targeted killing of al-Awlaki presents a constitutional gray area at the intersection of the executive, secret intelligence, and the rule of law.
It’s Secret . . . Trust Us
The public case for the Obama administration’s private decision to kill al-Awlaki rested on secret intelligence. Other than public professions of al-Awlaki’s support for or involvement in terrorist plots, the Obama administration never charged al-Awlaki with a crime or even presented concrete evidence of his guilt—apart from alluding to having that evidence in the form of secret intelligence.
The administration vacillated between portraying al-Awlaki as either the operational planner of terrorist plots or the clerical inspiration for terrorist actors, like the Fort Hood shooter Major Nidal Hassan or the Christmas Day underwear bomber Umar Farouk Abdulmutallab. In the latter case, the Obama administration determined that al-Awlaki was an operational leader of al-Qaeda in the Arabian Peninsula (AQAP) following that failed attack. But a Justice Department memo recounting al-Awlaki’s role states that the “bulk of the material provided comes from debriefing statements [Abdulmutallab] made to FBI agents,” and other accounts have called into question Abdulmutallab’s confession. Additionally, Harold Koh, the legal adviser to the State Department, expressed his concerns with how American intelligence presented its case against al-Awlaki.
For his part, al-Awlaki, who otherwise had no problem condemning the United States and vocalizing his support for attacks on Americans, denied that he had authorized the underwear bomb plot. Even AQAP insisted that the US government “did not prove their accusation” or “present evidence” against him. While al-Awlaki’s statements present constitutional questions regarding free speech and incitement to violence, there is a difference between planning and inspiring terrorist attacks.
Ironically, it was a British court case against a would-be terrorist that offered the best public evidence of al-Awlaki’s operational role in terrorist activities. But, in the United States, the Obama administration eschewed the judicial court, and instead opted for the court of public opinion by using secret intelligence to shape a narrative that justified a constitutionally unprecedented decision.
Anwar al-Awlaki undoubtedly wanted Americans to die. And many Americans probably wanted him dead, too. But his targeted killing left American citizens with little more than the proposition that we are supposed to simply trust the president and the executive branch when they use secret intelligence to accuse an American citizen of terrorism and then claim the right to kill that individual without judicial scrutiny. Given the bitter partisan divisions in this country over recent American presidents, should al-Awlaki’s extrajudicial killing comfort or concern the American people?
In a stunning reversal, the Obama administration did not apply its own logic in the case of Mohanad Mahmoud al-Farekh, an American citizen in Pakistan accused of being a major figure in al-Qaeda. Although the CIA and Joint Special Operations Command pushed to add al-Farekh to the kill list, Attorney General Eric Holder voiced his skepticism with the intelligence on al-Farekh, namely his status in al-Qaeda and the threat he posed to the United States—similar claims made against al-Awlaki. Instead, US intelligence assisted Pakistan in capturing al-Farekh and extraditing him to the United States to stand trial in a civilian court.
Ultimately, the Obama administration likely killed al-Awlaki because it was just plain easier at the time rather than trying to charge him with a crime, capture him, and expose secret intelligence in a US court. And that still presents a problem for the United States because drones create the illusion that the United States can continue to conduct counterterrorism on the cheap.
A New Presidential Playbook?
Drones will almost certainly continue to be an appealing tool for counterterrorism operations under the administration of President Joe Biden. This is all the more likely given that Biden served as vice president at the time of the al-Awlaki killing and has long favored a limited footprint approach to counterterrorism operations. The US. withdrawal from Afghanistan will further reinforce the need for drone strikes both as part of “over-the-horizon” operations and because polling has sent a clear signal to the Biden administration that large troop deployments and protracted conflict are undesirable ways to address terrorist threats.
Biden’s approach so far seems to align with policies adopted during Obama’s second term. The drone “playbook” under Obama—the Presidential Policy Guidance—developed after the administration publicly acknowledged having killed four American citizens, required more interagency coordination, communication, and legal deliberation. The Biden administration has echoed similar guidelines for its playbook, the Presidential Policy Memorandum, but the tumultuous withdrawal from Afghanistan and the unresolved legacy of al-Awlaki’s killing leave many questions as to how his drone policy might evolve.
Do Drones Work?
Despite a significant reduction in drone strikes since taking office, the Biden administration made headlines in late August when it launched a retaliatory drone strike in Afghanistan against a suspected Islamic State militant following a suicide bombing at Hamid Karzai International Airport in Kabul that killed thirteen US servicemembers. In the days that followed, it emerged that the United States had mistakenly targeted an innocent man, killing ten civilians, including seven children. Even worse, General Kenneth F. McKenzie, Jr., the commander of US Central Command stressed that this “was not a rushed strike,” adding that the US unit responsible for the drone strike had followed the targeted vehicle for eight hours. This sequence of events suggests that US claims about the intelligence processes and targeting procedures underpinning drone strikes are still insufficiently careful enough to prevent egregious errors.
This recent strike also underscores an ongoing debate surrounding the efficacy and consequences of the use of drones. National security professionals and academics continue to debate whether targeted killings work. For instance, some contend targeted strikes decrease militants’ operational effectiveness and morale while others note that groups become far more indiscriminate in the immediate period after such attacks. Still others say efficacy ultimately depends on who and what is targeted as well as if a strike hits the intended target. In addition, studies have arrived at divergent conclusions about how targeted killings—and specifically those that target an organization’s leadership—impact group durability, with some identifying no distinguishable effect and others showing that leadership decapitation significantly increases the likelihood of organizational demise.
Problematic Precedents and Unintended Consequences
Precedents have lasting effects both in law and in life. While there is a presidential precedent in the case of killing al-Awlaki, there is no judicial precedent. The US District Court for DC punted twice on the al-Awlaki killing: first, before he was dead, and then again after.
In the first case, the court began by noting the uncomfortable irony that the US government needs judicial approval when it targets a US citizen overseas for electronic surveillance, but apparently needs no judicial review to target a citizen for death. During the proceedings, the Obama administration refused to confirm or deny to the court that al-Awlaki was on the “kill list,” meaning US citizens cannot know if they are being targeted by their own government for death until it is too late. Furthermore, the Obama administration refused to disclose information to the plaintiff (al-Awlaki’s father) and even to the court behind closed doors, so secret intelligence undermined the whole process. The court dismissed the case, but acknowledged “the somewhat unsettling nature of its conclusion—that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is ‘constitutionally committed to the political branches’ and judicially unreviewable.”
In the second case, the DC District Court glaringly walked back its earlier position and pronounced, “The powers granted to the Executive and Congress to wage war and provide for national security does not give them carte blanche to deprive a U.S. citizen of life without due process and without any judicial review [emphasis added].” Nonetheless, the court still dismissed this case as well. The extrajudicial killing of an American citizen according to the legal logic devised by the executive branch to target al-Awlaki remains an unsettled (and unsettling) question of constitutional law to this day.
Leaving aside questions of US constitutional law, drones are still problematic as a matter of just war theory, the law of armed conflict, and international humanitarian law. The human costs of drone strikes, including the long-term impacts of living under drones and the number of civilian casualties they cause, require further scrutiny. On top of that, the CIA is a civilian agency that comes close to, if not crosses, the line of directly participating in hostilities. In response, Congress and the Obama administration considered shifting responsibility for all US drone strikes to the military at different points in time, but some officials believed the CIA had a better record of hitting its targets and limiting civilian casualties. Still, questions about the precision of US drone strikes and US transparency with regard to civilian casualties remain.
It doesn’t help that the CIA drone program is conducted under Title 50 covert action authority. While US law defines covert action as operations in which “the role of the United States Government will not be apparent or acknowledged,” the CIA’s drone program is one of the worst-kept secrets in the world of intelligence. The CIA also must pivot away from counterterrorism and paramilitary operations in order to focus on the more pressing work of collecting and analyzing information to support US policymaking in the era of great power competition.
Not only is there an increasing need to address the challenges posed by near-peer competitors, but the United States needs to carefully reconsider the precedents its drone wars have set for countries like Russia and China. While the United States has reproached and punished other states for extrajudicially targeting their citizens abroad both as a matter of law and principle, al-Awlaki’s case undermines US credibility. Moreover, the United States has telegraphed that it is acceptable for states to send unmanned systems over national boundaries to kill those accused of “terrorism,” a pliable term in the international community that exposes a range of people to assassination by states with sophisticated intelligence and military capabilities. For example, Turkey has recently used drone strikes in Syria to attack Kurdish commanders, erstwhile US allies in the campaign against the Islamic State.
US counterterrorism operations have made weaponized drones a feature of twenty-first-century conflict. As an unintended consequence, militant groups like the Islamic State and Hezbollah have employed commercial and even military-grade drones. Recognizing the danger, the Pentagon released its newest strategy to counter the threat of small drones in early January 2021. And while most militant groups’ drone activity has occurred in overseas conflicts, this doesn’t mean they won’t use drones in their next attack on the United States, leading some observers to worry that the next 9/11 could involve drones.
As is often the case in history, events have a way of coming full circle. In early August, a tourist from Texas lost control of a small drone in New York City, causing it to strike a building. That building was 7 World Trade Center. Twenty years ago, in the same corner of lower Manhattan, the 9/11 attacks made tragically clear that our physical edifices were at risk. The precedents the United States has set in the long wars launched in the wake of those attacks show that our constitutional and ethical ones are as well.
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