Jus ad Bellum/UN Charter/Sovereignty

John Brennan's Speech

By John Bellinger, Lawfare Staff
Monday, April 30, 2012, 12:46 PM

Last October, I wrote an op-ed in the Washington Post entitled “Will Drone Strikes Become Obama’s Guantanamo?” in which I said that “the administration needs to work harder to explain and defend its use of drones as lawful and appropriate — to allies and critics — if it wants to avoid losing international support and potentially exposing administration officials to legal liability.”  In particular, I said that “The administration should provide more information about the strict limits it applies to targeting and about who has been targeted.”  In subsequent remarks, I have also argued that the Administration needs to clarify the legal rules it applies to drone strikes if it wants to be able to limit the use of drones by other countries; the Administration must be mindful of the precedent it is setting.

 John Brennan’s Wilson Center speech goes a long way to address my concerns.

 1.         The speech clearly acknowledges that the U.S. is using drones to kill al Qaida members in various countries and lays out the domestic and international legal framework for use of drones in some detail.

 2.         Although not crystal clear, the speech strongly implies that, as a matter of international law, the Administration is applying ONLY the Law of Armed Conflict, not human rights law.  Brennan says “International legal principles, including respect for a state’s sovereignty and the laws of war, imposes constraints.”   Brennan goes on to specify that the Administration is applying the laws of necessity, proportionality, distinction, and humanity -- all Law of Armed Conflict principles.

 3.         Although human rights law may not apply as a binding legal matter, the Administration appears to be applying certain human rights laws principles to inform its targeting.  I agree with this approach.  It is not targeting EVERY al Qaida member.  Instead, it is only targeting those that pose a “significant threat.”  Note, however, that the Administration is not limiting itself to targeting those who pose an “imminent” threat.  "Significant threat" is clearly a lower threshold, and human rights groups will not be comfortable with it.  Moreover, some of the examples that  Brennan gives -- e.g. an "individual with unique operational skills that are being leveraged in a planned attack" -- are not likely to be viewed by human rights groups as fitting within the traditional concept of "imminence."

 4.         The Administration says it respects the “sovereignty” of other countries.  As a matter of international law, this generally means that the Administration has obtained the consent of other countries, or has determined that they are unwilling or unable to give that consent.

 5.         Brennan also emphasizes the Administration’s concern about reciprocity.  He acknowledges that by using drones “we are establishing precedents that other nations may follow” and that “If we want other countries to use these technologies responsibly, we must use them responsibly.”  The rules that Brennan lays out will help to cabin the use of drones by other countries.

 Brennan ends his remarks by noting his "sincere effort today to address the main questions that citizens and scholars have raised regarding the use of targeted lethal force against al Qaida.”  I acknowledge that I was one of the citizens to have raised those concerns, and Brennan’s speech today, coupled with the prior speeches of Eric Holder and Administration general counsels, has addressed many of my principal concerns.  He is right that I would like to see more detail on some issues, but these may be addressed in future speeches.

[Addendum:  I can't help but note that if any members of the previous Administration had given this same speech, human rights groups and their supporters in Congress would have condemned not only the message, but the messenger.   As I have noted in previous posts, I would like to encourage more bipartisanship on hard national security issues.]