Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing

Written Statement of the Council on American-Islamic Relations
Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing

Submitted to the Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Human Rights

Testimony Prepared by: Robert S. McCaw

Council on American-Islamic Relations (CAIR)
453 New Jersey Ave., SE
Washington, DC 20003
Phone: (202) 742-6448
Fax: (202) 488-0833
Email: rmccaw@cair.com
Web: www.cair.com

Chairman Durbin, Ranking Member Cruz and other members of the subcommittee, the Council on American-Islamic Relations (CAIR) thanks you for holding this first-ever Senate hearing on the constitutional and counterterrorism implications of targeted drone warfare and respectfully submits this written testimony for your consideration.

CAIR and the American Muslim community unequivocally condemn all acts of terrorism and support our nation's war against al-Qaeda and its allied forces. While pursuing this enemy, we as a nation must ensure that the rule of law and respect for human life is preserved while responsibly targeting al-Qaeda.

Our nation's use of and growing reliance on armed drones in remote areas of Afghanistan, Pakistan, Yemen, and Somalia has raised serious questions. Has the administration established a viable legal framework and procedures to oversee the use of targeted drone strikes inside and outside of designated zones of hostility? How is due process upheld for American citizens targeted by lethal drone strikes? What steps has the U.S. government taken to avoid civilian deaths and injuries, and has it compensated victims, their families, or communities when wrongful drone strikes occur?

Questions about Executive Authority and Process

Openness and transparency are the pillars of democracy. Despite this the Obama administration has publicly struggled with Congress to provide details on the legal framework, procedures and internal guidance governing its lethal drone strike program.

The administration has not disclosed to Congress or the public how it identifies or approves the placement of suspected individuals on "kill lists;" its operating procedures governing the positive identification of targeted individuals, implementation of targeted drone strikes, assessment of drone strike effectiveness, and confirmation of militant or civilian deaths or injuries; or what oversight is built into this process to ensure effectiveness and minimize civilian casualties.

While the administration has provided the Senate Intelligence Committee with classified Justice Department memos on its legal justification for the use of drone strikes against suspected al-Qaeda leaders and allied militants, the administration has not provided these memos to the U.S. Armed Services Committee, which oversees the Department of Defense (DoD) or the Judiciary Committee, which oversees the Department of Justice.

As commander-in-chief of the U.S. military, President Obama claims that his executive authority to lethally target suspected terrorists who pose an "imminent threat" derives from Article II of the U.S. Constitution. Moreover, the 2001 Authorization to Use Military Force act permits the administration to target "those nations, organizations, or persons [the president] 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," being al-Qaeda and the Taliban, as well as "associated forces" as defined by the National Defense Authorization Act of 2012.

The limit of this executive authority is tested outside of active combat zones in Afghanistan. Between 2004 and 2013, the U.S. has engaged in covert drone campaigns in Pakistan and Yemen, and recently Somalia, in which the DoD and CIA have lethally targeted al-Qaeda as well as Pakistani Taliban and others suspected to be militants based on their characteristics and patterns of behavior alone.

Targeting groups and suspected militants other than al-Qaeda and the Taliban has raised significant concern in Congress and the civil rights community over executive overreach and the U.S. pursuing an indefinite war against those not responsible for the events of September 11, 2001.

Questions about Due Process before Targeting American Citizens

The American Muslim community firmly repudiated Anwar al-Awlaki's incitement to violence, which began after he left the United States. In addressing the September 2011 drone strike in Yemen that killed Anwar al-Awlaki and the attack two weeks later that killed his 16-year-old son Abdurrahman, CAIR was joined by a number of prominent civil liberties organizations in urging Congress and the president to address the constitutional issues raised by the assassination of American citizens without due process of law.

CAIR remains concerned that the administration has not fully informed the nation or allowed judicial oversight of the legal justifications currently being used to kill American citizens abroad. While a few members of Congress have been given access to Department of Justice memos that outline the Obama administration's constitutional and legal justification for the targeted killings of Americans citizens overseas, CAIR believes that greater public transparency and disclosure is needed.

Questions about Civilian Deaths and Moral Authority

During CIA Director John Brennan's February 2013 confirmation hearing before the Senate Intelligence Committee he reported that the number of civilian casualties caused by U.S. drones strikes each year have "typically been in the single digits."

While the U.S. drone strike program remains classified, the "Year of the Drone" project by the New America Foundation currently estimates that from 2004 to 2013, the U.S. has engaged in 428 drone strikes in Pakistan and Yemen that have resulted in 2,439 to 3,982 deaths. Of these 1,982 to 3,251 were classified as militants, 276 to 368 were civilians, and 200 to 330 were unknown.

Media and non-profit organizations have reported that in its first term the Obama administration carried out six times as many lethal drone strikes as the Bush administration in its eight years in office. And while media report that the use of drone strikes is waning in Pakistan, there are an equal number of reports of new drone strikes in Yemen and Somalia.

While CAIR does not concede that the Obama administration has the legal authority to use force outside of recognized zones of armed conflict, we are particularly concerned about how the drone program has killed and injured persons with no established connection to terrorism. In pursuing al-Qaeda and its allied forces, the U.S. cannot concede its moral authority by hastily using its lethal weapons and technology to needlessly take lives and injure innocent civilians.

Groups like al-Qaeda seek to capitalize on such preventable mistakes and popular resentment built around civilian casualties. Likewise, civilian and government opposition to drone strikes in Pakistan and Yemen have been fueled by such civilian deaths that have been judged by local communities to be not "collateral damage" but as reckless and indiscriminant killings by the U.S. government. If drone strikes are meant to cripple organizations like al-Qaeda, then our counter-terrorism programs should not be used to inspire the next generation of militant leaders.

Recommendations to Congress

With regards to establishing a more transparent and accountable legal framework under which the U.S. targeted drone strike program can reasonably operate, CAIR recommends that Congress:

  • Continue to exercise oversight by requesting all administration operating procedures and guidelines governing its covert drone strike program, declassifying and making public as much information as possible.
  • Determine how international law applies to U.S. drone strikes inside and outside of areas Congress has declared as zones of hostility.
  • Ensure that the administration and corresponding defense and intelligence agencies are operating under similar guidelines and legal frameworks.
  • Ensure that the administration has clearly defined how it determines whether a person is labeled a militant or a member of a militant group or is considered to be a civilian.
  • Ensure that the administration is correctly recording and reporting the number of militant and civilian deaths and injuries contributed to the drone strike program, as well as other lethal and destructive modes of combat.
  • Ensure that the U.S. government is adequately compensating civilian drone strike victims, their families, and communities.
  • Publicly address and debate the impact of civilian deaths and injuries and breaches of other nations' sovereignty as it relates to the war on terrorism.
  • Hold follow-up hearings on the operating authority and legal framework under which the administration carries out its armed drone strike program.
  • Hold follow-up hearings on the number of civilian casualties, amount of property damage, and rise in militancy that has resulted from the administration's U.S. targeted drone strikes.

With regards to the high number of civilian casualties, CAIR recommends that Congress seek clarification from the administration in the following areas:

  • How the administration categorizes persons killed or injured in drone strikes that are in close proximity to officially targeted individuals; when a bystander is killed or injured are they recorded as a civilian or a militant; and, are military age males killed or injured in such strikes always considered militants.
  • What procedures exist to record and report the total number of civilian or militant deaths or injuries that have resulted from the U.S. drone program?
  • What procedures exist to protect civilians from targeted drone strikes? Do these procedures differ between drone strikes carried out by the CIA or DoD?
  • According to the administration, what is an acceptable number of civilian lives lost?
  • What is the administration's policy for collecting information about who was killed after drone strikes occur?
  • What is the administration's policy for acknowledging civilian casualties from drone strikes and compensating victims, their families, or communities?
  • What overview or accountability exists for departments, agencies or individuals who make outstanding mistakes in incorrectly nominating or targeting civilians in drone strikes or carrying out strikes that cause unacceptable levels of civilian casualties?


CAIR looks forward to Congress exerting its authority over the administration to hold the executive branch responsible for establishing transparent and accountable guidelines and procedures that better define the U.S. drone program's legal framework. We hope that this program can be used to effectively combat al-Qaeda and its allied forces without sacrificing the rule of law, due process, or the goodwill of civilian populations.

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