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Legal Analysis

This section provides an overview of the debate about the legality of the US targeted killing program and drone campaign in Pakistan under both international[1] and US domestic law. The section is intended for a non-legal audience, and thus should not be seen as a comprehensive analysis of the complexities of international legal doctrine. It outlines the legal issues regarding:

  • whether the US use of force in Pakistan violates Pakistan’s sovereignty in contravention of the U.N. Charter. This is a question of jus ad bellum, the body of law concerning the recourse to force, and depends on whether Pakistan has consented to the strikes, or whether the US is lawfully acting in self-defense;
  • when and which individuals may lawfully be targeted under applicable international human rights or humanitarian law. Regardless of one’s assessment of the legality of the recourse to the use of force (jus ad bellum)–the use of force against a specific individual must also comply with either international humanitarian law (in the context of an armed conflict) or international human rights law (outside armed conflict). In this regard, the legality of so-called “signature strikes” is highly suspect, as are attacks resulting in significant civilian casualties, attacks on first responders and funerals, and the targeting of individuals not engaged in the Afghanistan theater, particularly those who do not pose an imminent threat;
  • the extent to which the US has met its legal obligations to operate transparently and to ensure accountability for alleged rights abuses;
  • whether current drone policy violates US domestic law, in light of its possible expansion of the role of the executive vis-à-vis the Congress, and the prohibition on assassination.

The US government’s extreme reluctance to provide details about particular strikes or the targeted killing program in general has impeded much-needed democratic debate about the legality and wisdom of US policies and practices, and stymied understanding about their actual impacts. The US has largely refused to answer basic questions about the drone program posed in litigation or by civil society, journalists, or public officials.[2] US officials have made some public comments,[3] and there has been extensive reliance on selective, limited, and favorable leaks about the program to journalists.Yet discussions about the legality of the drones policy under both under International Humanitarian Law (IHL), the body of law governing armed conflict, and International Human Rights Law (IHRL), often require fact-dependent contextual analysis. This report relies on information documented through extensive first-hand accounts to aid in its analysis.

Whether the US Use of Force in Pakistan Violates Pakistan’s Sovereignty

Article 2(4) of the U.N. Charter prohibits the threat or use of force by one state against another.[4] Two exceptions to the Article 2(4) prohibition on the use of force are particularly relevant to the question of whether US targeted killings in Pakistan are lawful: (1) when the use of force is carried out with the consent of the host state;[5] and (2) when the use of force is in self-defense in response to an armed attack or an imminent threat, and where the host state is unwilling or unable to take appropriate action.[6]

Pakistani consent: Some analysts, citing information released by Wikileaks,[7] maintain that Pakistan had, at some prior point, tacitly supported drone strikes.[8] It is not known whether Pakistan continues to consent privately to the program today. Repeated public statements by Pakistani officials, which intensified in 2012—declaring that US strikes are illegal, counter-productive, and violate the country’s sovereignty[9]—clearly cast doubt on whether Pakistan consents to ongoing operations.

Self-defense: In the absence of Pakistani consent, US use of force in Pakistan may not constitute an unlawful violation of Pakistan’s sovereignty if the force is necessary in self-defense[10] in response to an armed attack[11]–either as a response to the attacks of September 11, 2001,[12] or as anticipatory self-defense to mitigate threats posed by non-state groups in Federally Administered Tribal Areas (FATA).[13] For the use of force to be lawful, the host state must also be shown to be “unwilling or unable to take [the appropriate steps, itself, against the non-state group].”[14] Legal experts, including the current U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, have questioned whether “killings carried out in 2012 can be justified as in response to [events] in 2001,” noting that “some states seem to want to invent new laws to justify new practices.”[15] “Anticipatory” self-defense has been offered as a narrow exception,[16] invoked to prevent an attack that is “instant, overwhelming, and leaving no choice of means, and no moment of delib­eration.”[17] There is little publicly available evidence to support a claim that each of the US targeted killings in northwest Pakistan meets these standards. Indeed, on currently available evid­ence, known practices–such as signature strikes, and placing individuals on kill lists for extended periods of time[18]–raise significant questions about how the self-defense test is satisfied.

Further, it must be shown that the host state is “unwilling or unable to take [the appropriate steps against the non-state group].”[19] Pakistan has at times failed to act decisively against non-state groups,[20] raising questions about its ability and willingness to take necessary steps. At others, however, it has also shown a willingness to take action.[21] Any such action by Pakistan must, however, also comport with all IHRL and IHL concerning the use of force (see below for a discussion on jus in bello considerations).

Circumstances in Which Individuals May Lawfully Be Lethally Targeted

Separately from the question of whether US use of force in Pakistan violates Pakistani sovereignty, the legality of strikes against particular individuals turns on their compliance with IHL and/or IHRL. US strikes that occur outside the context of any armed conflict are governed by IHRL law. If an armed conflict exists, both IHRL, and IHL, as the lex specialis (“law governing a specific subject matter”), apply. [22]

The Existence of an Armed Conflict in Pakistan

The existence of an armed conflict is determined according to objective legal criteria.[23] In the context of a non-international armed conflict (insofar as a “conflict” exists in Pakistan between the US and others, it is a non-international conflict because it involves non-state actors), factors such as whether the violence reaches a minimum level of intensity and duration,[24] and involves a sufficiently identifiable and organized non-state group,[25] are relevant.

US officials have been quick to apply IHL without establishing that the requisite threshold for its application has been met. Yet numerous experts have raised questions about whether the US is, in fact, in an armed conflict with all of the groups whose members the US has targeted. This is because of factors such as the lack of centralization and organization within some non-state groups,[26] and the existence of only sporadic and isolated attacks by some groups.[27]

Drone Strikes under International Humanitarian Law

If there is an armed conflict, the legality of any drone strike must then be evaluated in accordance with IHL, including particularly the fundamental principles of distinction,[28] proportionality,[29] humanity,[30] and military necessity.[31]

Distinction is particularly challenging in FATA, because fighters regularly intermingle with civilians, engage in routine activities and do not wear uniforms. None­theless, militaries engaged in an armed conflict must always attempt to distinguish between legit­mate and illegitimate targets for an attack.

Generally, “the civilian population as such, as well as individuals civilians, shall not be the object of attack.”[32] Civilians lose this protection when they “take a direct part in hostilities.”[33] Under the formulation of the International Committee of the Red Cross (ICRC) of what constitutes direct participation in hostilities, the act committed must adversely and directly affect the opposing party in a concrete manner or lead to the loss of life or property as part of a campaign in support of one party to a conflict.[34] This definition adopts an approach focused on specific hostile acts of a certain magnitude rather than organizational membership or more indirect forms of support.[35] The ICRC has further distinguished between civilians who participated in specific acts and those who maintain a continuous combatant function (CCF) by virtue of involvement on a “persistently recurrent basis.”[36] While a civilian participating in a specific act becomes a permissible target during the execution of,[37] and, in some formulations, the preparation of and deployment to and from the particular act,[38] a person who maintains CCF status, under the ICRC formulation, may be targeted at any time. The recognition under IHL that, at times, a civilian can become akin to a regular combatant makes it “imperative that the other constituent parts of the [ICRC’s Interpretive] Guidance [on the Notion of Direct Participation in the Hostilities Under Humanitarian Law] (threshold of harm, causation, and belligerent nexus) not be diluted.”[39] Even when a person is deemed to be a legitimate target of an attack, the attack must also satisfy IHL’s other core requirements. At a minimum, any attack must serve a legitimate military objective, and the expected harm or risk to civilians must not outweigh the expected military objective.

The research conducted for this study raises serious concerns about the compliance of particular strikes, and targeted killing trends and practices, with IHL. These legal concerns include questions regarding:

  • individual strikes, including those on mosques, funerals, schools, or meetings for elders to gather and resolve community disputes, where large numbers of civilians are present. Even when such strikes are aimed at one or more individuals who may be deemed legitimate military targets, the presence of large numbers of civilians in such spaces may make the strike disproportionate. Strikes that result in large numbers of civilian deaths also raise questions about whether adequate precautions in attack were taken;
  • signature strikes, which reportedly are based on behavior patterns observed from on high and interpreted thousands of miles away. The practice of such strikes raises concerns about whether they are conducted with the proper safeguards to ensure that they strike lawful targets;[40]
  • strikes on rescuers and first responders, as documented in the Living Under Drones Chapter.[41] These may violate the principle of distinction, and also contravene specific rules protecting the wounded and humanitarian assistance.[42] It might be that, under the ICRC formulation of the CCF test, a fighter could be lawfully targeted even while the person is at that moment rescuing someone.[43] However, available evidence raises very serious concerns about such strikes, given that they occur in areas where civilians are very likely to be present. The short time between first and second strikes at rescue sites further raises questions over how an individual’s lawful target status could be properly determined. Evidence uncovered by our research team that humanitarian actors may not attend to strikes immediately because of second-strike fears is especially troubling.[44] As U.N. Special Rapporteur on extrajudicial, sum­mary or arbitrary exec­utions Christof Heyns observed, “[I]f civilian ‘rescuers’ are indeed being intentionally targeted, there is no doubt about the law: those strikes are a war crime;”[45]
  • the proportionality of particular strikes, in light of the higher-end estimates of civilian casualties noted in the Numbers chapter.[46] Recent revelations regarding the Obama administration’s “guilt by association”[47] approach to counting drone-strike casualties, classifying ‘all military-age males’ as ‘combatants’ absent exonerating evidence, reinforce these concerns;[48]
  • the necessity of particular strikes, in light of research we conducted on the timing and intensity of drone attacks between January 2010 and June 2012, as well as analysis done by the Congressional Research Service. The data we gathered, reviewed in light of parallel political events and key moments in US-Pakistani relations, suggests a troubling correlation between events of political significance and the intensity of drone strikes. Take, for example, the events that followed the arrest of CIA contractor Raymond Davis, who reportedly killed two men in Pakistan on January 27, 2010. Pakistani authorities arrested Davis on that same day, January 27. Although the US had launched six strikes in the three weeks preceding his arrest (January 6-27), it did not strike again for over three weeks after the incident. During this period, US authorities engaged in a high-level lobbying campaign to ensure the release of Davis.[49] Some attribute the pause in drone strikes to US efforts to secure Davis’s release and/or to “avoid angering a population already riveted by the Davis arrest.”[50] Then, in the period between February 20 and Davis’s eventual release on March 16, the US launched eleven strikes. Following the March 16 release, with the exception of the March 17 jirga strike,[51] the US did not authorize another strike afterwards for almost a month (until April 13).[52] The Congressional Research Service (CRS) reached a similar conclusion: “[m]essaging to Pakistan appears to continue to be part of the [drone] program’s intent.”[53] Apart from the Raymond Davis incident, CRS cited two additional examples of the intensification of drone strikes related to political events.[54]

In the Absence of Armed Conflict, Only International Human Rights Law Applies

IHRL permits the intentional use of lethal force only when strictly necessary and proportionate. Thus, “targeted killings” as typically understood (intentional and premeditated killings) cannot be lawful under IHRL, which allows intentional lethal force only when necessary to protect against a threat to life, and where there are “no other means, such as capture or non-lethal incapacitation, of preventing that threat to life.”[55] There is little public evidence that many of the targeted killings carried out fulfill this strict legal test. Indeed, and as described above, many particular strikes and practices suggest breaches of the test, including: signature strikes; strikes on rescuers; the administration’s apparent definition of “militant;” the lack of evidence of imminent threat; and the practice of extensive surveillance and presence on a list before killing.

The nature and effect of the US targeted killing policy may also contravene in some instances other sections of the International Covenant on Civil and Political Rights (ICCPR),[56] an international human rights treaty ratified by the US. Sections of the ICCPR potentially violated by US drone practice include Article 7 (prohibition on cruel, inhumane, and degrading treatment or punishment), Article 9.1 (right to liberty and security), Article 17 (right to freedom from arbitrary or unlawful interference with privacy, family, and home), Article 21 (right to peaceful assembly), and Article 22 (right to freedom of association).[57] Thus, for example, Articles 21 and 22 might be violated where drone strike practices cause individuals to fear assembling in groups—as described by many interviewees—out of concern that they might be assumed to be engaged in suspicious activity that might result in a signature strike.

US Domestic Law

US drone strikes must also comply with US domestic law. Under Article II of the US Constitution, the President wields significant authority over questions involving national security and the use of force.[58] The Constitution, though, also entrusts key responsibilities, including the authority to declare war, to Congress.[59] When acting pursuant to Congressional authorization in an area delegated to him under the Constitution, the President has relatively expansive authority to act.[60]

The principal domestic legislative basis offered to justify drone strikes is the Authorization to Use Military Force (AUMF), a joint resolution of both houses of Congress passed exactly one week after 9/11. The AUMF permits 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.”[61] While subsequent legal and judicial developments expanded the government’s detention authority beyond the parameters of the AUMF,[62] the AUMF continues to provide the legal basis for the use of force against Al Qaeda. The 2012 National Defense Authorization Act (NDAA), for example, while affirming the President’s power to detain forces “associated” with Al Qaeda and Taliban and “engaged in hostilities against the United States or its coalition partners,”[63] notes that “nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.”[64] Congress, which has been more engaged recently in oversight of the drone program,[65] has yet to expand or limit the authorization for the executive to use force under the AUMF at this writing.

US officials have cited the AUMF to support their position that the country is at ‘war’ not only with Al Qaeda and the Taliban, but also with all alleged affiliated groups, wherever they may operate, and at any point when they emerge.[66] For example, Jeh Johnson, General Counsel of the Department of Defense, has stated that the US government considers the AUMF to authorize force against “associated forces.”[67] An associated force, according to Johnson, is “(1) an organized, armed group that has entered the fight alongside Al Qaeda, and (2) is a co-belligerent with Al Qaeda in hostilities against the United States or its coalition partners.”[68] The plain language of the AUMF, though, would appear only to authorize the use of force against those tied to the attacks of September 11, 2001, and not any “associated forces” who may subsequently allegedly join with Al Qaeda.[69] While the AUMF would thus cover actions against Al Qaeda and the Afghan Taliban, strikes against groups not involved with the 9/11 attacks, including, for example, the Haqqani Network and TTP, would not be covered under the currently existing language.

The express legislative authorization in the AUMF, read in conjunction with the wartime powers of the executive under Article II, endow the President with expansive authority to act on use of force questions in the post-9/11 context.[70] In addition, the President has the authority to issue findings to authorize CIA action beyond the parameters of Congressional authorization as long as such action does not otherwise violate domestic law.[71] Some argue that this allows the President to authorize the CIA to take pre-emptive lethal action in self-defense against terrorists in response to an imminent threat, without first obtaining Congressional approval.[72] While all US presidents have embraced an executive order issued by President Gerald Ford in 1976[73] prohibiting political assassination,[74] at least two presidents have reportedly relied on classified legal memoranda to conclude that “executive orders banning assassination do not prevent the president from lawfully singling out a terrorist for death by covert action.”[75]

To the extent that strikes may occur pursuant to executive findings authorizing CIA action beyond the parameters of Congressional authorization, the legal framework guiding CIA engagement must be examined. Many have questioned what rules govern the CIA,[76] with some even suggesting that the express purpose of the CIA is to safeguard vital national interests by means of covert action that may go beyond the parameters of the law.[77] The CIA’s involvement in drone strikes in Pakistan does not absolve the US from its responsibility to adhere to binding domestic law. Although the CIA is governed by a different section of the US Code (Title 50) than that which regulates the armed forces (Title 10), the CIA “may not authorize any action that would violate the Constitution or any statute of the United States.”[78] Director of National Intelligence James Clapper explained in a January 2012 Senate Intelligence Committee hearing that the entirety of Harold Koh’s March 2010 speech at the American Society of International Law’s annual conference, which laid out the legal requirements to which the US is bound and the administration’s legal justification for targeted killings, applied equally to intelligence agencies.[79]

Executive orders to the CIA authorizing covert action (such as drone strikes), though, are not public, and thus their terms cannot be examined. Should they not provide a legal basis for actions of this sort or should the US invocation of self-defense be invalid in particular instances, individual strikes could constitute acts of illegal extrajudicial assassination. Assassination has long been condemned in the US. Thomas Jefferson wrote in a letter to James Madison in 1789 that “assassination, poison, [and perjury]” were all “legitimate purposes in the dark ages…but exploded and held in just horror in the 18th century.”[80] As recently as 2001, the US Ambassador to Israel Martin Indyk declared that “the United States government is very clearly on record as against targeted assassinations… they are extrajudicial killings, and we do not support that.”[81] Strikes of this sort occurring outside of authorized armed conflict would be subject to US domestic law.[82] If US citizens are targeted, constitutional protections and due process requirements also apply.[83]

Accountability and Transparency

International law requires states to ensure basic transparency and accountability for wrongs. States must investigate war crimes allegations, and prosecute where appropriate.[84] The obligation to be transparent is particularly relevant when there are civilian victims; indeed, some have argued that parties to an armed conflict are obligated to record civilian casualties.[85] IHRL further “places a particular emphasis on the obligation of states to investigate, prosecute and punish any alleged violation of the norms banning extrajudicial executions.”[86] A proper investigation requires transparency: as the European Court of Human Rights explained, “[t]here must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts.”[87]

By failing to account adequately for their activities in any public forum and even refusing to acknowledge publicly the existence of targeted killing operations for years or to explain sufficiently their legal basis, the US has failed to meet its international legal obligations to ensure trans­parency and accountability. In addition, while Article 51 of the U.N. Charter, which the US has implicitly invoked to justify strikes, requires that “measures taken by Members in the exercise of [their] right to self-defense . . . be immed­iately reported to the Security Council,”[88] the US has yet to make such a report. Recent public disclosures and the occasional willingness by public officials to discuss the program publicly is welcome progress, but more is still required.

Partial and selective leaks to journalists and vague invocations of legal doctrine in talks in public fora are poor substitutes for proper transparency and oversight. Officials boast of the rigor of internal oversight mechanisms and decision-making processes,[89] but, as former U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions Professor Philip Alston concluded:

Assertions by Obama administration officials, as well as by scholars, that these operations comply with international standards are undermined by the total absence of any forms of credible transparency or verifiable accountability. The CIA’s internal control mechanisms, including the Inspector-General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a ‘free pass’ to the CIA; judicial review has been effectively precluded; and external oversight has been reduced to media coverage which is all too often dependent on information leaked by the CIA itself.[90]



[1] See Special Rapporteur on extrajudicial, summary or arbitrary executions, Study on Targeted Killings, Human Rights Council, UN Doc. A/HRC/14/24/Add.6 (May 28, 2010) (by Philip Alston), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf (detailing the legal regime governing “targeted killing” in great detail, and providing an authoritative and comprehensive analysis of the legal regime governing both the legal—and illegal—use of drones to target and kill individuals in the context of counter-terrorism).

[2] For questions and critiques from external actors, see, e.g., Special Rapporteur, Study on Targeted Killings, supra note 598; Owen Bowcott, Drone Strikes Threaten 50 Years of International Law, Says UN Rapporteur, Guardian (June 21, 2012), http://www.guardian.co.uk/world/2012/jun/21/drone-strikes-international-law-un#start-of-comments; US Drone Strikes ‘Raise Questions’- UN’s Navi Pillay, BBC News (June 8, 2012), http://www.bbc.co.uk/news/world-asia-18363003; Letter from Amnesty International et al. to Barack Obama, President of the United States (May 31, 2012), available at http://www.madre.org/index/resources-12/madre-statements-57/news/letter-to-administration-pressing-for-transparency-on-drone-strikes-805.html; US: Transfer CIA Drone Strikes to Military, Human Rights Watch (April 20, 2012), http://www.hrw.org/news/2012/04/20/us-transfer-cia-drone-strikes-military.

[3] See e.g., John Brennan, Assistant to the President for Homeland Security and Terrorism, The Ethics and Efficacy of the President’s Counterterrorism Strategy, Address at the Woodrow Wilson International Center for Scholars (Apr. 30, 2012), available at http://www.lawfareblog.com/2012/04/brennanspeech/; Eric Holder, Attorney General, Department of Justice, Address at Northwestern University School of Law (Mar. 5, 2012), available at http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html; Jeh C. Johnson, General Counsel, Department of Defense, National Security Law, Lawyers and Lawyering in the Obama Administration, Address at Yale Law School (Feb. 22, 2012), available at http://www.cfr.org/national-security-and-defense/jeh-johnsons-speech-national-security-law-lawyers-lawyering-obama-administration/p27448; Harold K. Koh, Legal Advisor, Department of State, The Obama Administration and International Law, Address at the Annual Meeting of the American Society of International Law (Mar. 25, 2010), available at http://www.state.gov/s/l/releases/remarks/139119.htm; Stephen W. Preston, General Counsel, Central Intelligence Agency, The CIA: Lawless Rogue or Regulated Business?, Address at Stanford Law School (Feb. 21, 2012).

[4] UN Charter art. 2, para. 4. Some international lawyers interpret this language in Article 2(4) to indicate a prohibition only of a subset of acts of force—those that challenge the territorial integrity or political independence of the host state. Christine Gray, International Law and the Use of Force 24-25 (2008). This interpretation, though, has largely been rejected by the weight of international legal opinion, which views Article 2(4) as “outlawing any transboundary use of military force.” Sean D. Murphy, Terrorism and the Concept of ‘Armed Attack’ in Article 51 of the U.N. Charter, 43 Harv. Int’l L.J. 41, 42 (2002). The United Kingdom articulated a version of this interpretation in the Corfu Channel case in the first matter adjudicated by the International Court of Justice (‘ICJ’), arguing that its intrusion on Albanian territorial waters to recover evidence regarding the destruction of two British warships did not threaten Albania’s territorial integrity or political independence, and, therefore, did not violate Article 2(4).See generally The Corfu Channel Case (Alban. v. U.K.), 1949 I.C.J. 4, 194 (Apr. 9). The ICJ rejected this claim outright; while the language leaves open the possibility of a narrow rejection based on the particular facts, the ICJ has subsequently construed Article 2(4) as a blanket ban on armed intervention. Id.;see generally Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. US), 1986 I.C.J 14, 202 (June 27); Case Concerning Armed Activities on the Territory of the Congo (Dem. Rep. of Congo v. Uganda), 2005 I.C.J. 168 (Dec. 19).

[5] See, e.g., G.A. Res. 36/103, UN Doc A/RES/36/103 (Dec. 9, 1981) (further identifying the “duty of a State to refrain from economic, political, or military activity in the territory of another State without its consent.”); Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 35; Oscar Schachter, International Law in Theory and Practice 114 (1991); Ashley Deeks, ‘Unwilling or Unable’: Toward a Normative Framework for Extraterritorial Self-Defense, 51 Va. J. of Int’l Law 483, 492 (2012); Eliav Lieblich, Intervention and Consent: Consensual Forcible Interventions in Internal Armed Conflicts as International Agreements, 29 B.U. Int’l L.J. 337, 350 (2011) (“[C]onsent can be expressed in many forms, in different moments along the time continuum, and does not necessarily have to be explicit- as long as it is proven genuine.”).

[6] Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 45. A third exception, involving collective security under Chapter VII of the UN Chapter, is inapplicable, since the US drone program in Pakistan lacks UN authorization.

[7] Tim Lester, WikiLeaks: Pakistan Quietly Approved Drone Attacks, US Special Units, CNN (Dec. 1, 2010), http://articles.cnn.com/2010-12-01/us/wikileaks.pakistan.drones_1_drone-attacks-predator-strikes-interior-minister-rehman-malik?_s=PM:US (quoting former US Ambassador Anne Patterson’s recounting of a meeting with former Pakistani Prime Minister Yousaf Gilani, where he acknowledged “I don’t care if they do it as long as they get the right people. We’ll protest in the National Assembly and then ignore it.”).

[8] See, e.g., Mohammad I. Aslam, Wazirstan: The Drone Delusion, 3 South Asia Journal 55 (Jan. 2012), available at http://southasiajournal.net/issues/south-asia-journal-issue-3-january-2012/.

[9] See, e.g., President Zardari Asks US to End Drone Strikes, Remove Mistrust, Dawn (Sept. 16, 2012), http://dawn.com/2012/09/16/president-zardari-urges-us-to-immediately-cease-drone-strikes/ (citing the spokesman to Pakistani President Asif Ali Zardari as saying that, in a meeting with US special envoy to Afghanistan and Pakistan Marc Grossman, Zardari “reiterated his call for an end to the drone attacks, terming them counterproductive in the fight against militancy and in the battle of winning hearts’”); Pakistan Condemns ‘Illegal’ US Drone Strikes, Reuters (June 4, 2012), http://tribune.com.pk/story/388730/pakistan-condemns-illegal-us-drone-strikes/ (referencing statement by the Pakistani Foreign Ministry, declaring drone strikes to be “illegal” and a violation of country’s sovereignty); Pakistan Says US Not Listening: Drone Strikes Must Stop, Reuters (Apr. 26, 2012), http://www.reuters.com/article/2012/04/26/us-pakistan-minister-drones-idUSBRE83P0AM20120426 (citing Pakistani Foreign Ministry Hina Rabbani Khar, who declared in April 2012 that “[o]n drones, the language is clear: a clear cessation of drone strikes. I maintain the position that we’d told them categorically before. But they did not listen. I hope their listening will improve.”).

[10] UN Charter art. 51. Note that there has been debate about whether Article 51 applies to the use of force against non-state actors; see, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 194 (July 9) (holding that Article 51 had “no relevance” to attacks not “imputable to a foreign state.”); see also Barry E. Carter & Allen S. Weiner, International Law 981 (6th ed. 2011) (“[T]he international community has generally been critical of the use of force in self-defense against non-state terrorists.”); Oscar Schachter, International Law in Theory and Practice 165 (1991) (expressing “substantial doubts” about whether Article 51 sanctions the use of force against terrorist groups when no state has been “guilty of an armed attack” or has “directed or controlled the terrorists in question). But see Legal Consequences of the Construction of Wall, Advisory Opinion, 2004 I.C.J. 207, at 215 (July 9) (separate opinion of Judge Higgins) (“There is, with respect, nothing in the text of Article 51 that thus stipulates that self-defense is available only when an armed attack is made by a state.”).

[11] International Court of Justice legal precedent also casts doubt on whether terrorist acts within Pakistan today can constitute “armed attacks” on the US and thus are sufficient to give rise to a right to self-defense under Article 51. See Military and Paramilitary Activities in and Against Nicaragua, supra note 601, at 195 (distinguishing an ‘armed attack’ from mere ‘frontier incidents’); see also Gary Solis, The Law of Armed Conflict: International Humanitarian Law in War 153 (2010) (“The SLA was no more than a criminal conspiracy.”); Mary Ellen O’Connell, Unlawful Killing with Combat Drones 14 (Notre Dame Law School, Legal Studies Research Paper No. 09-43, 2010) (arguing that terrorist attacks “are generally treated as criminal acts because they have the hallmarks of crime, not armed attacks that give rise to the rights of self-defense”), available at http://ssrn.com/abstract=1501144. But see Nils Melzer, Targeted Killing in International Law 52 (2008) (“[M]ost authors agree that massive terrorist attacks, such as those carried out in New York City and Washington DC on 11 September 2001, or regular terrorist attacks of a comparatively minor scale, such as the frequent Palestinian suicide bombings carried out in Israel, can potentially qualify as an ‘armed attack’ within the meaning of Article 51 UN Charter.”).

[12] See, e.g., Brennan, supra note 600 (“[T]he United States is an armed conflict with al-Qa’ida, the Taliban, and associated forces, in response to 9/11 attacks, and we may also use force consistent with our inherent right to self-defense.”); Holder, supra note 600 (“[A]nd international law recognizes the inherent right of national self-defense. . .”); Koh, supra note 600 (“[T]he 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.”).

[13] See, e.g., Brennan, supra note 600 (“[W]e conduct targeted strikes because they are necessary to mitigate an actual ongoing threat — to stop plots, prevent future attacks, and save Americans lives.”); Holder, supra note 600 (“[T]he US government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful.”).

[14] Deeks, supra note 602, at 487-88; see also Special Rapporteur, Study on Targeted Killings, supra 598, at ¶ 35 (“[A] targeted killing conducted by one state in the territory of a second state does not violate the second State’s sovereignty if . . . . the first, targeting, State has a right under international law to use force in self-defense under Article 51 of the UN Charter, because . . . . the second state is willing or unable to stop armed attacks against the first State launched from its territory.”).

[15] Bowcott, supra note 599 (citing the Special Rapporteur’s further warning that the US drone campaign threatens “50 years of international law,” and questioning whether “we [are] to accept major changes to the international legal system which has been in existence since world war two and survived nuclear threats”).

[16] See, e.g., Thomas M. Franck, Recourse to Force: State Action against Threats and Armed Attacks 2 (2002) (describing the UN Charter as a “constitutive instrument capable of organic growth”); William C. Bradford, The Duty to Defend Them: A Natural Law Justification for the Bush Doctrine of Preventative War, 79 Notre Dame L. Rev. 1365 (2004); Michael Glennon, The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter, 25 Harv. J.L. & Pub. Pol’y 539, 557-58 (2002). Note, however, that this interpretation is in tension with the text of Article 51 of the UN Charter, which permits invocations of self-defense only in response to an armed attack. UN Charter art. 51 (“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.”). Many states have questioned the anticipatory self-defense doctrine. Scholar Christine Gray has observed that “the vast majority of states rejected [claims of anticipatory self-defense] before the events of 9/11.” Christine Gray, International Law and the Use of Force 10 (2008). Writing in 2008, Gray noted that despite the position in favor of anticipatory self-defense of powerful nations such as the US, the United Kingdom, and Israel, “differences persist today.” Id. at 160. Gray goes on to note that states rarely expressly invoke the doctrine, “a clear indication of the doubtful status of this justification for the use of force.” Id. at 161.

[17] Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 45; see also Letter from Daniel Webster, US Secretary of State, to Lord Ashburton, (Aug. 8, 1842), in Carter & Weiner, supra note 607, at 936-37. Webster’s statement, which emerged from a diplomatic incident between the US and U.K. over the killing of US citizens in British Canada in 1837 (known as the Caroline case), has come to be the customary international legal standard for preemptive self-defense. A recent Congressional Research Service report has noted that US authorities have sought to expand the definition of imminence in the case of non-state terrorist threats. Jennifer Elsea, Cong. Research Serv., 7-5700, legal issues related to the lethal targeting of US citizens Suspected of Terrorist activities 14 (2012) That report notes that this “proposed redefinition of ‘imminence’ as a requirement for justifying the use of force in self defense on the territory of another country may pose challenges to the international law regarding the use of force. The standard definition of imminence from the Caroline case, ‘instant, overwhelming, and leaving no choice of means and no moment for deliberation,’ appears to have been completely reversed in the case of a non-state actor). Id. at 20.

[18] Jo Becker & Scott Shane, Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will, N.Y. Times (May 29, 2012), http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html?pagewanted=all.

[19] Deeks, supra note 602, at 487-88. See also Special Rapporteur, Study on Targeted Killings, supra 598, at ¶ 35 (“[A] targeted killing conducted by one state in the territory of a second state does not violate the second State’s sovereignty if . . . . the first, targeting, State has a right under international law to use force in self-defense under Article 51 of the UN Charter, because . . . . the second state is willing or unable to stop armed attacks against the first State launched from its territory.”).

[20] See, e.g., Jaysharee Bajoria and Eben Kaplan, Backgrounder: The ISI and Terrorism: Behind the Accusations, Council on Foreign Relations (May 4, 2011), http://www.cfr.org/pakistan/isi-terrorism-behind-accusations/p11644; Bob Gates, America’s Secretary of War, CBS News (May 17, 2009), http://www.cbsnews.com/2102-18560_162-5014588.html?tag=contentMain;contentBody (noting Defense Secretary Robert Gates conceding that “to a certain extent, [Pakistan] play[s] both sides”); Pakistan Helping Afghan Taliban- NATO, BBC News (Feb. 1, 2012), http://www.bbc.co.uk/news/world-asia-16821218 (citing a leaked 2012 NATO report claiming that “Pakistan’s manipulation of the Taiban senior leadership continues unabashed.”); Declan Walsh & Eric Schmitt, New Bold From Militants Poses Risk to US-Pakistan Ties, N.Y. Times (July 30, 2012), http://www.nytimes.com/2012/07/31/world/asia/haqqani-network-threatens-us-pakistani-ties.html?pagewanted=1&_r=2&nl=todaysheadlines&emc=edit_th_20120731 (maintaining that the Haqqani Network, a non-state group affiliated with the Taliban, operates “unmolested by the Pakistani military” in North Waziristan”).

[21] Interview with Samina Ahmed, International Crisis Group, in Islamabad, Pakistan (Feb. 28, 2012) (“It’s a pattern we’ve seen since 2002, where the Pakistani military has delivered foreign Al-Qaeda in return for benefits.”). Pakistan has arrested dozens of senior Al-Qaeda leaders, including Khalid Sheikh Mohammed, and undertaken operations against militant groups in Swat Valley and parts of FATA.

[22] Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 29; see also International Committee of the Red Cross, International Humanitarian Law and Other Legal Regimes: Interplay in Situations of Violence (2003), available at http://www.icrc.org/eng/assets/files/other/interplay_other_regimes_nov_2003.pdf (“In short, the participants [of the XXVIIth Round Table on Current Problems in Humanitarian Law] agreed that the existence of an armed conflict could permit the suspension of the application of derogable human rights but only to the extent necessary, for the limited duration of exceptional events justifying their suspension and subject to compliance with certain precise conditions. At the same time, a consensus emerged that, even in this hypothesis of conflict, at least the non-derogable rules of human rights law continue to apply and to complement IHL.”).

[23] See Sylvain Vité, Typology of Armed Conflicts in International Law: Legal Concepts and Actual Situations, 91 Int. Rev. of the Red Cross 69, 72 (2009) (noting the Geneva Conventions specified that “international humanitarian law was. . . . no longer based solely on the subjectivity inherent in the recognition of the state of war, but was to depend on verifiable facts in accordance with objective criteria”).

[24] See Int’l Comm. of the Red Cross, How is the Term “Armed Conflict” Defined in International Humanitarian Law? (Mar. 2008) (laying out customary IHL); see also Additional Protocol II to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Non-International Armed Conflicts, June 8, 1977, art. 1(2), 1125 UNTS 609, available at http://www.icrc.org/ihl.nsf/full/475?opendocument (requiring that the conflict amount to more than “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature”) [hereinafter Protocol II].

The treaty has not yet been ratified by the US. See id. Nonetheless, its ratification has been recommended by both Presidents Reagan and Obama. See Message from Ronald Regan, President of the US, to the Senate Transmitting a Protocol to the 1949 Geneva Conventions (Jan. 29, 1987), available at http://www.reagan.utexas.edu/archives/speeches/1987/012987b.htm; Press Release, White House, Fact Sheet: New Actions on Guantanamo and Detainee Policy (Mar. 7, 2011), available at http://www.lawfareblog.com/wp-content/uploads/2011/03/Fact_Sheet_-_Guantanamo_and_Detainee_Policy.pdf. The treaty has been ratified by 166 countries. See Protocol II, supra. Further, many of its provisions have been incorporated into customary law. Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 52.

[25] Int’l Comm. of the Red Cross, supra note 621, at 5; see Protocol II, supra note 621, at art. 1(2) (holding that the conflict must pit “armed forces” against “dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”); Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 52; Prosecutor v. Tadic, Case No. IT-94-1-I-A, Appeals Judgment, at ¶ 120 (July 15, 1999) (defining an organized group as one that “normally has a structure, a chain of command and a set of rules as well as outward symbols of authority.”).

[26] Paul Pillar, Still Fighting Bush’s GWOT, Consortium News (June 23, 2012), http://consortiumnews.com/2012/06/23/still-fighting-bushs-gwot/ (“[T]here is no distinct entity called Al Qaeda that provides a sound basis for defining and delimiting an authorized use of military force.”); see also Kenneth Anderson, Targeted Killing in U.S Counterterrorism Strategy and Law 4 (Series on The Brookings Institution, Georgetown University Law Center and the Hoover Institution Series on Counterterrorism and American Statutory Law, No. 9, 2009), available at http://www.brookings.edu/research/papers/2009/05/11-counterterrorism-anderson (“Islamist terror appears to be fragmenting into loose networks of shared ideology and aspiration rather than vertical organizations linked by command central.”); Bruce Hoffman, The Changing Face of Al Qaeda and the Global War on Terrorism, 27(6) Stud. in Conflict & Terrorism 549, 552 (2004) (outlining that Al Qaeda is “more akin to an ideology,” “diffuse and amorphous,” and “less centralized with more opaque command and control relationships.”).

[27] In addition, the US policy lumps together Al Qaeda, the Taliban, and associated forces, from the TTP and Laskhar-e-Taiba to the Haqqani Network and Hezb-e-Islami Gulbuddin, all of which have different agendas and methodologies. This characterization has been challenged. See, e.g., Amnesty International, United States of America: ‘Targeted Killing’ Policies Violate the Right to Life 12 (2012). Indeed, as one international law scholar has argued, to treat these disparate groups as a single entity would be “akin to claiming that not only could the Korean war, the Vietnam war, and the Cuban Missile Crisis . . . be considered part of a single armed conflict . . . but that anyone, or any group, suspected of holding Communist opinions, anywhere around the globe, would also be seen as party to the conflict.” Noam Lubell, Extraterritorial Use of Force Against Non-State Actors 96 (2010).

[28] Protocol II, supra note 621, at art. 13(2) (“The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”).

[29] Jean-Marie Henckaerts & Louise Doswald-Beck, International Committee of the Red Cross, Customary International Humanitarian Law: Vol. 1: Rules 46 (2006) (“Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.”).

[30] Robin Coupland, Humanity: What is it and How Does it Influence International Law?,83 Int. Rev. of the Red Cross 969, 984, http://www.icrc.org/eng/resources/documents/misc/57jrlm.htm (“Humanity . . . limits, to the greatest extent possible, the effects of armed violence on people’s security and health. Importantly, it extends to restraining the capacity for armed violence so that humans can live in a peaceable, constructive society in which, for instance, family life, education and commerce, i.e., humanity-humankind, can flourish.”).

[31] Int’l Comm. of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in the Hostilities under Humanitarian Law 77 (2009) (“[T]he kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.”), available at http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf.

[32] Protocol II, supra note 621, at art. 13(2).

[33] Id. at art. 13(3).

[34] Int’l Comm. of the Red Cross, supra note 628, at 44.

[35] Id. at 46; See also Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 63-64.

[36] Int’l Comm. of the Red Cross, supra note 628, at 44. The principle of ‘continuing combatant function’ has been criticized by those who believe it provides too little and too much protection for civilians in situations of conflict. See, e.g., Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 66 (“Creation of the CCF category also raises the risk of erroneous targeting of someone who, for example, may have disengaged from their function.”); Bill Boothby, “And For Such Time As”: The Time Dimension to Direct Participation in Hostilities, 42 N.Y.U. J. Int’l. L. & Pol. 741, 753-58 (2010) (questioning the ICRC formulation of CCF and counseling ‘consideration’ of the US position in opposition to the existence of the category); Human Rights Institute, Columbia Law School, Targeting Operations with Drone Technology: Humanitarian Law Implications 18-21 (Mar. 25, 2011) (Background Note for the American Society of International Law Annual Meeting), available at http://www.law.columbia.edu/ipimages/Human_Rights_Institute/BackgroundNoteASILColumbia.pdf.

[37] Id.

[38] Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC ‘Direct Participation in Hostilities’ Interpretive Guidance, 42 N.Y.U. J. Int’l. L. & Pol. 640, 692 (2010) (“Carrying out an attack or preparing to do so would constitute taking direct part in hostilities.”).

[39] Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 67.

[40] Becker & Shane, supra note 615.

[41] See infra Chapter 3: Living Under Drones.

[42] See Henckaerts & Doswald-Beck, supra note 626, at 79, 105, 396 (explaining the rules with regards to the search for, collection and evacuation of the wounded, sick and shipwrecked (Rule 109); Medical Personnel (Rule 25); and Humanitarian Relief Personnel (Rule 31)).

[43] See e.g., Robert Chesney, Is DPH the Relevant Standard in Pakistan? An Important Element in the Debate Missing from BIJ’s report, Lawfare (Feb. 6, 2012), http://www.lawfareblog.com/2012/02/is-dph-the-relevant-standard-in-pakistan-an-important-element-in-the-debate-missing-from-bijs-report/.

[44] See infra Chapter 3: Living Under Drones.

[45] Jack Serle, UN Expert Labels CIA Tactic Exposed by Bureau ‘a War Crime’, The Bureau of Investigative Journalism (June 21, 2012), http://www.thebureauinvestigates.com/2012/06/21/un-expert-labels-cia-tactic-exposed-by-bureau-a-war-crime/.

[46] See infra Chapter 2: Numbers; US Drone Strikes ‘Raise Questions’, supra note 599 (quoting UN High Commissioner for Human Rights Navi Pillay after a June 2012 trip to Pakistan as stating that “drone attacks do raise serious questions about compliance with international law, in particular the principle of distinction and proportionality”).

[47] Becker & Shane, supra note 615.

[48] Overly permissive criteria after the fact, together with serious public accountability and transparency deficits, provide little assurance that each use of lethal force strictly complies with the relevant law. Indeed, in many other contexts, a failure to examine carefully the legality of government use of force after a killing has led to development of a culture of impunity and heightened the risk of unlawful killing. See, e.g., U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Study on Police Oversight Mechanisms, Human Rights Council, UN Doc A/HRC/14/24/Add.8 (May 28, 2010) (by Philip Alston), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add8.pdf; Human Rights Watch, Urban Police Violence in Brazil: Torture and Police Killings in São Paulo and Rio de Janeiro After Five Years 13 (1993) (arguing that failure to sanction police officers, including one who had killed 44 civilians allegedly in acts of defense of human life, fostered a culture of impunity in São Paulo state, contributing to an increase in police killing, which totaled over 1400 in 1992 alone).

[49] Mark Mazzetti, Ashley Parker, Jane Perlez & Eric Schmitt, American Held in Pakistan Worked With C.I.A., N.Y. Times (February 21, 2012), http://www.nytimes.com/2011/02/22/world/asia/22pakistan.html?_r=1&pagewanted=all.

[50] Ishtiaq Mashud, Al Qaeda Figure Believed Killed in US Drone Strike, Wash. Times (Feb. 21, 2011), http://www.washingtontimes.com/news/2011/feb/21/al-qaeda-figure-believed-killed-us-drone-strike/?page=all.

[51] See infra Chapter 3: Living Under Drones.

[52] For full details, refer to Appendix C. In a similar vein, strikes fluctuated significantly during the time period immediately before and after the May 2012 New York Times investigative piece on targeted killing. Becker & Shane, supra note 615. The revelations in the Times piece were widely perceived as a boon to Obama’s popularity at home. See, e.g., Charles Krauthammer, Barack Obama: Drone Warrior, Wash. Post (May 31, 2012), http://www.washingtonpost.com/opinions/barack-obama-drone-warrior/2012/05/31/gJQAr6zQ5U_story.html. The US launched nine strikes across North Waziristan in the seven days before and after the Times piece although it had not launched a single strike in the two weeks preceding that period and only two in the subsequent two weeks. For full details, refer to Appendix B.

[53] K. Alan Kronstadt, Cong. Research Serv., R41832, Pakistan-US Relations 22 (2012), available at http://fpc.state.gov/documents/organization/193708.pdf.

[54] Id. (“major strikes closely followed … the Administration’s July 2011 announcement on partial suspension of US military aid to Islamabad;” and “a series of drone strikes came immediately after the May 2012 NATO summit where President Obama refused to meet with his Pakistani counterpart.”).

[55] Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 33.

[56] International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976).

[57] See generally id.

[58] US Const. art. II, § 2, cl. 1 (“The President shall be Commander in Chief of the Army and Navy of the United States…”); see Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579, 645 (1952) (Jackson, J., concurring) (“I should indulge the widest latitude of interpretation to sustain [the President’s] exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. . . His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-branch is a representative Congress.”).

[59] See, e.g., US Const. art. I, § 8, cl. 1, 11 (“The Congress shall have the Power To. . . . declare War.”).

[60] Youngstown Sheet, 343 U.S at 635 (“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum.”).

[61] Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).

[62] See, e.g., Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010) (holding that the AUMF grants the President authority to detain individuals who are “part of forces associated with Al Qaeda or the Taliban.”); Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006) (defining an unlawful enemy combatant for the purposes of jurisdiction as a “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda or associated forces)”). Al-Bihani and the Military Commissions Act do not consider targeted killings.

[63] National Defense Authorization Act Fiscal Year 2012, H.R. 1540, 112th Cong. § 1021(b)(2) (2012). Note, though, that the Constitutionality of this provision has been challenged. See, e.g., Hedges v. Obama, No. 12 Civ. 331(KBF), 2012 WL 3999839 (S.D.N.Y. 2012) (ruling that § 1021(b)(2) is unconstitutional and enjoining its enforcement). At the time of this writing, the 2nd Circuit judge had issued a stay on the decision pending appeal. Hedges v. Obama, No. 12-3176, slip op. at 1 (2d Cir. Sept. 17, 2012).

[64] Id. at § 1021(d).

[65] Ken Dilanian, Congress Keeps Closer Watch on CIA Drone Strikes, L.A. Times (June 25, 2012), http://www.latimes.com/news/nationworld/world/middleeast/la-na-drone-oversight-20120625,0,7967691,full.story.

[66] See, e.g., Jeh C. Johnson, General Counsel, Department of Defense, National Security Law, Lawyers and Lawyering in the Obama administration, Address at Yale Law School (Feb. 22, 2012), available at http://www.cfr.org/national-security-and-defense/jeh-johnsons-speech-national-security-law-lawyers-lawyering-obama-administration/p27448.

[67] Id.

[68] Id.

[69] See, e.g., Jonathan Masters, Backgrounder: Targeted Killings, Council on Foreign Relations (Apr. 30, 2012), http://www.cfr.org/counterterrorism/targeted-killings/p9627 (quoting John Bellinger, former legal adviser for the US Department of State under Secretary of State Condoleezza Rice from 2005 to 2009 and current Adjunct Senior Fellow at the Council on Foreign Relations, who argues that the AUMF is “still tied to the use of force against people who planned, committed, and or [sic] aided those involved in 9/11.”).

[70] Youngstown Sheet, 343 US at 591.

[71] 50 USC. § 413b(a) (2006).

[72] W. Hays Parks, Memorandum of Law: Executive Order 12333 and Assassination, 27 Army Lawyer 4, 7-8 (1989).

[73] Exec. Order No. 11,905, 41 Fed. Reg. 7703 (Feb. 18, 1976).

[74] See, e.g., Exec. Order No. 12,036, 43 Fed. Reg. 3674 (Jan. 24, 1978) (closing the loopholes on the US assassination ban and declaring that “no employee of the United States Government shall engage in, or conspire to engage in, assassination”); Exec. Order No. 12,333, 3 C.F.R. 200 (1981).

[75] Barton Gellman, CIA Weights ‘Targeted Killing’ Missions, Wash. Post (Oct. 28, 2001), http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A63203-2001Oct27&notFound=true; see also Jeremy Scahill, The Democrats’ Selective Amnesia on Assassination: Clinton Did it and Obama Does it Too, Huffington Post (July 15, 2009), http://www.huffingtonpost.com/jeremy-scahill/the-democrats-selective-a_b_233708.html; US Policy on Assassinations, CNN (Nov. 4, 2002), http://articles.cnn.com/2002-11-04/justice/us.assassination.policy_1_assassination-prohibition-cia-lawyers?_s=PM:LAW/.

[76] See, e.g., Michael McAndrew, Wrangling in the Shadows: The Use of United States Special Forces in Covert Military Operations in the War on Terror, 29 B.C. Int’l & Comp. L. Rev. 153, 161 (2006).

[77] Kathryn Stone, “All Necessary Means” Employing CIA Operatives in a Warfighting Role Alongside Special Operations Forces (US Army War College Strategy Research Project #0704-0188, Apr. 7, 2003), available at http://www.fas.org/irp/eprint/stone.pdf (“Whereas US military operations are more easily proven to be in compliance with both national and international law because they occur in the public domain, this is not the case with CIA covert operations . . . . there are overriding national interests (vital interests) that must be protected outside the framework of international law.”).

[78] 50 USC. § 413b(a)(5) (2006).

[79] Senate Select Intelligence Committee Holds Hearing on Worldwide Threats, 112th Cong. (2012) (statement of James Clapper, Director of National Intelligence).

[80] Letter from Thomas Jefferson to James Madison (Aug. 28, 1789), in 15 The Papers of Thomas Jefferson 367 (Julian P. Boyd ed., 1958); see Philip Alston, The CIA and Targeted Killing Beyond Borders (New York Univ. Law Sch. Pub. Law & Legal Theory Research Paper Series, Working Paper No. 11-64, Sept. 16, 2011), available at http://ssrn.com/abstract=1928963.

[81] Jane Mayer, The Predator War, New Yorker (Oct. 26, 2009), http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer.

[82] Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 71.

[83] For a discussion of the additional constitutional legal considerations involved in the targeting of US citizens, see Complaint at ¶ 41-43, Al-Aulaqi v. Panetta, No. 12-cv-01192-RMC (filed on 07/18/2012), as well as Memorandum in Support of Plaintiff’s Motion for a Preliminary Injunction at 8-23, Al-Aulaqi v. Obama, 727 F.Supp.2d 1 (D.D.C. 2010). In an interview with Jessica Yellin of CNN on September 5, 2012, President Obama recognized, in response to a question about the standards that apply to drone strikes when ‘the target is an American’?’, that “[as an] American citizen, they are subject to the protections of the Constitution and due process.” Obama Reflects on Drone Warfare (CNN television broadcast Sept. 5, 2012), available at http://security.blogs.cnn.com/2012/09/05/obama-reflects-on-drone-warfare/.

[84] Henckaerts & Doswald-Beck, supra note 626, at 607 (explaining Rule 158).

[85] Susan Breau & Rachel Joyce, Discussion Paper: The Legal Obligation to Record Civilian Causalities of Armed Conflict 2 (Oxford Research Group, June 2011), available at http://www.oxfordresearchgroup.org.uk/sites/default/files/1st%20legal%20report%20formatted%20FINAL.pdf; see also Susan Breau, Marie Aronsson, & Rachel Joyce, Discussion Paper 2: Drone Attacks, International Law, and the Recording of Civilian Causalities of Armed Conflict 2 (Oxford Research Group, June 2011), available at  http://www.oxfordresearchgroup.org.uk/sites/default/files/ORG%20Drone%20Attacks%20and%20International%20Law%20Report.pdf.

[86] Alston, supra note 677, at 22; see also Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 15 (citing to the Israel High Court of Justice, The Public Committee Against Torture et al. v. The Government of Israel, et al., HCJ 769/02, Judgment of 14 Dec. 2006 (PCATI) for the holding that “after each targeted killing, there must be a retroactive and independent investigation of the ‘identification of the target and the circumstances of the attack’”).

[87] Anguelova v. Bulgaria, 38 Euro. Ct. H.R. 31, ¶ 140 (2002) (cited in Alston, supra note 677, at 23).

[88] UN Charter art. 51.

[89] See, e.g., Brennan, supra note 600 (“[T]he United States government has never been so open regarding its counterterrorism policies and legal justification.”); Preston, supra note 600.

[90] Alston, supra note 677, at 118.