Image Credits: @iusher on Unsplash (Unsplash License)

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In the early hours of July 30, 2022, Ayman al-Zawahiri, a deputy to Osama bin Laden during the planning of the September 11th attacks who succeeded him in leading the al-Qaeda terror group, walked onto the balcony of his safe house in Kabul, Afghanistan. Al-Zawahiri, who for decades masterminded attacks against the United States and Americans abroad, had evaded the U.S. government for over 20 years. At approximately 6:18 AM AFT an American drone firing two hellfire missiles at the safe house ended the manhunt. A few days after the operation, President Biden announced his death from the White House. “[J]ustice has been delivered,” he said.

The July 30th strike, killing al-Zawahiri while leaving civilians in the dense surrounding neighborhoods unharmed, quickly became heralded as a “master class in intelligence and operational capacity and an affirmation that U.S. intelligence could still be effective in Afghanistan.” While the exact number of drone strikes executed by the U.S. government is generally unknown, the Biden Administration’s shift towards an “over-the-horizon” counterterrorism (OTH-CT) strategy, whereby remotely piloted aircraft replace U.S. soldiers on the ground, will likely increase these operations. 

In a 2013 hearing before the Senate Judiciary Subcommittee on Constitution, Civil Rights & Human Rights, Georgetown Law Professor and former counselor to Under Secretary of Defense for Policy Michèle Flournoy, Rosa Brooks, described the drone program under President Barack Obama as the Executive Branch claiming the “right to kill anyone, anywhere on earth, at any time, for secret reasons based on secret evidence in a secret process undertaken by unidentified officials.” Over a decade and two Presidents later, with the potential for an increase in U.S. drone strikes looming, it is worth examining the current legal mechanisms behind these deadly operations.

A Brief History of the U.S. Drone Program

The U.S. government has long maintained two district drone operations: one operating in “declared theaters of war” under the Department of Defense (DOD) and one operating everywhere outside of those areas under the Central Intelligence Agency (CIA). Both programs and the President that directs them, derive their authority to engage in lethal action from the Authorization for Use of Military Force (AUMF)(P.L. 107-40). The 2-page bill, hastily and near-unanimously passed a week after the September 11th attacks, gives the President broad authority “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 [and] to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Following the September 11th attacks, President George W. Bush authorized the use of armed drones in the emerging “War on Terror.” In November 2001, the U.S. launched its first drone strike in Afghanistan, however, the operation missed its target – high-ranking Taliban commander Mullah Akhund – and instead killed several others. The Bush Administration expanded U.S. drone operations to Yemen in 2002, Pakistan in 2004, and Somalia in 2007, totaling 57 strikes by the end of 2008.

President Barack Obama accelerated the pace of the U.S. armed drone program, performing almost ten times more strikes – 563 – than his predecessor by the end of his second term. In 2011, following an extensive legal battle within the Administration, Obama oversaw the killing of Anwar al-Awlaki, an American citizen and senior al-Qaeda operative in Yemen, marking “the first time since the Civil War, the United States government had carried out the deliberate killing of an American citizen as a wartime enemy and without a trial.” Following the public announcement that U.S. drone strikes had killed an additional three U.S. citizens, Obama announced new efforts to “institutionalize[] the Administration’s exacting standards and processes for reviewing and approving operations to capture or use lethal force against terrorist targets.” The shift in policy began a 6-month transition whereby the CIA ceded some control of its drone program to the DOD and curtailed drone strikes in areas that were “not overt war zones” while easing restrictions for battlefield strikes.

President Donald Trump, citing the need to “update [U.S.] policies on the application of direct action to keep pace with the evolution of the terrorist threat in recent years,” rolled back some Obama-era regulations. Specifically, the Administration expanded “battlefield designation” to Yemen and Somalia, applying looser restrictions to strikes conducted inside the countries, and lowered the threshold of certainty that male civilians would not be incidentally injured or killed in a strike from “near certainty” to “reasonable certainty.” Further, the White House gave the DOD and CIA the authority to “decide for themselves whether circumstances on the ground met certain conditions and an attack was justified.”

President Biden immediately suspended Trump’s drone strike policy on his first day in office, requiring the DOD and CIA to seek his approval before engaging in a strike, and White House National Security Advisor Jake Sullivan ordered a review of the previous Administration’s rules for direction action operations. 

The Biden Administration’s Drone Strike Policy

A declassified 15-page Presidential Policy Memorandum, signed by President Biden in October 2022 and obtained by the New York Times via a Freedom of Information Act (FOIA) lawsuit in July 2023, entitled “Governing Direct Action Counterterrorism Operations Outside Areas of Active Hostilities,” presents the most recent public understanding of the Administration’s legal mechanisms for authorizing lethal action, including drone strikes.

The document permits the use of a lethal drone strike if an “operating agency,” likely a component of either the DOD or CIA, “assesses that capture [of an identified individual] is not feasible,” has near certainty the individual is a member of a recognized terrorist group, “[REDACTED CERTAINTY LEVEL] the individual being targeted is an approved target,” and has near certainty that “non-combatants will not be injured or killed in the operation.” The document’s definition of “near certainty” is redacted in its entirety.

The memorandum lists a methodical process by which an operating agency can propose, target, and kill an individual who poses an “imminent threat to U.S. persons” outside of a war zone.

First, each operating agency is required to submit a “County Plan” to the National Security Council (NSC), listing among other information, which terrorist groups it wishes to target and how long it requires this authority. While there is no public list of nations with a “Country Plan,” it is reasonable to assume based on recent U.S. operations that such documents exist for Afghanistan, Yemen, Libya, Somalia, and Pakistan, among other countries. Following an operating agency’s submission, NSC staff consult with members of the Restricted Counterterrorism Security Group (R-CSG), which is chaired by the White House Senior Director for Counter Terrorism and includes representatives from the Department of State (State), Department of Justice (DOJ), CIA, Joint Chiefs of Staff (JCS), the National Counterterrorism Center (NCTC), and two redacted groups. NCTC will separately verify each proposed terrorist group producing a “supplemental intelligence community (IC)-coordinated intelligence assessment.” The NSC Legal Advisor will also work with attorneys from the DOJ, State, DOD, CIA, and the Office of the Director of National Intelligence (ODNI) to review the legality of the plan.

After or in conjunction with the submission of a Country Plan, an operating agency may submit a list of “identified individuals” it seeks to use lethal force against. The operating agency must substantiate that the individual named is a member of a terrorist group and that they pose an imminent threat to the United States. If a named individual is a U.S. citizen, additional legal analysis, including a separate DOJ report, will occur.

The NCTC then works with members of the IC to prepare an intelligence assessment of each proposed target listed by the operating agency and submits a memorandum with its findings to the R-CSG.

Similar to the process for approving a country plan, the R-CSG reviews the list of targets along with the NCTC memorandum, while the NSC legal advisor works with attorneys from the DOJ, State, DOD, CIA, and ODNI to verify the legality of lethal action.

The results of the R-CSG’s and NSC Legal Advisor’s review are then presented to the NSC Deputy Committee (DC), a 15-member group of deputy directors and advisors that serve “as the senior sub-Cabinet interagency forum for consideration of […] decision making on, policy issues that affect the national security interests of the United States.” The DC determines whether the individuals listed meet the criteria for lethal action and “whether eliminating the threat posed by the individual will materially contribute to a reduction in the threat posed by the ground.”

The Assistant to the President for National Security Affairs (APNSA), also known as the National Security Advisor, the Principal Deputy National Security Advisor (PDNSA), and the Assistant to the President for Homeland Security (APHSA) will jointly consider the DC’s findings and input from the Counsel to the President in deciding whether to seek further review from the NSC Principals Committee, a group of department and agency directors and other senior officials or submit the proposed individuals directly to the President for consideration. 

Assuming the APNSA, PDNSA, and APHSA decline to seek further review, the President is then presented with the proposed target. To approve lethal action, the President must certify that the individual is a “lawfully targetable member [REDACTED] of a terrorist group” and that they pose a “continuing, imminent threat to U.S. persons.”

If the President approves lethal action, the target’s information is added to a list of “named individuals whom operating agencies may target with lethal force” and the operating agency that nominated the individual is notified by NSC staff. The operating agency may then “use force against [the] named individual.”

After an operating agency uses lethal force against an approved target, they must notify the White House Situation Room (WHSR) of the action, which will inform the APNSA, PDNSA, APHSA, Deputy Homeland Security Advisor, and Senior Director for Counterterrorism. The operating agency must also notify congressional leadership and the chair and ranking member of the committees of primary jurisdiction, likely the Committees on Armed Services for DOD actions and the Select Committees on Intelligence for CIA actions. Within 48 hours the operating agency must submit a “preliminary action report” to NSC staff listing the identities of individuals killed or injured, the impact on surrounding infrastructure, and the number of civilians harmed. A formal report must be submitted within a week of the action.

Conclusion

Over a decade after Rosa Brooks characterized President Obama’s use of the drone program as secret executions authorized by unnamed individuals based on classified reasons, the mechanisms she described remain largely intact. While recent FOIA lawsuits brought by groups like the New York Times and the American Civil Liberties Union (ACLU) provide some clarity to the “secret process” behind drone strikes, the reasons for and the results of these lethal actions are largely unknown. 

A recent February 15, 2024 drone strike, which as of writing is under investigation by the DOD for potentially killing two Cuban doctors being held captive by the Somali terror group al-Shabaab, demonstrates the risk, complexity, and secrecy that looms behind the new era of U.S. counterterrorism operations.