This week's hearing in the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights may signal that Congress intends to step up oversight of the Obama administration's so-called "targeted killing" program. Human rights groups are eager to see Congress do its part to ensure that the United States complies fully with international law when it comes to armed drones.
The subcommittee, chaired by Senator Dick Durbin (D-IL) will hold its hearing on armed drones on April 23. We should all be able to agree that unlawful killings must be prevented. The question is how.
On Thursday, Senator John McCain (R-AZ) announced that he and others are working on legislation to "enshrine in law the principles that must govern the conduct of this war, both by this president and his successors, especially on the use of armed drones." This follows remarks by President Barack Obama and Senator Durbin that the government needs to put a "legal architecture" in place for armed drones.
But the law governing the use of lethal force, whether by drone attack or other weapons, already exists. What we need is for the Obama administration to follow the law. Not ignore it or reinterpret it to allow greater options for killing people.
Under international human rights law, the intentional use of lethal force is lawful only if it is "strictly unavoidable" in order to meet an "imminent threat of death" in self-defense or defense of others.
The only exception to the "law enforcement" rule described on the use of lethal force is in the exceptional situation of armed conflict. In armed conflict, the use of lethal force must comply with the rules in the law of armed conflict; if there is doubt as to whether a person is a civilian, the person should be considered a civilian.
From the little we know of the Obama administration's policy on armed drones, from the so-called "white paper" and from speeches by current and former officials, two key law-related problems are clear.
First, the administration has radically reinterpreted the concept of "imminence," by more or less taking the "imminent" part out. This redefinition is used to claim a much wider window to kill, perhaps even someone who isn't even involved in planning or carrying out an attack.
Second, the administration has adopted the "global war" theory of its predecessor. The core idea is that the world is a battlefield to which only the law of armed conflict applies, ignoring the applicability of human rights law. One of the foundations of the "global war" theory is the 2001 Authorization for Use of Military Force. Senate McCain and others have spoken of the need to "update" it. That may amount to an even broader license to kill.
Taken together, the two premises under which the administration operates means that people could be unlawfully killed in drone strikes. Congress would make this situation worse if it passed legislation that further entrenches these two administration positions.
Amnesty International submitted testimony to the Senate Judiciary subcommittee outlining reforms for the use of armed drones. Any possible legislation to clarify the use of drones should:
• Ensure that the U.S. government follows international human rights law and, in the exceptional circumstances where it applies, the law of armed conflict as well.
• Reject the "global war" theory and repeal the 2001 Authorization for Use of Military Force.
• Press the Obama administration to publicly disclose further legal and factual details, including any secret Department of Justice legal memorandums, and specific information about who has been killed.
• Ensure that any legislation does not discriminate on the basis of citizenship. International human rights law explicitly prohibits discrimination on grounds of national origin when it comes to respect for the rights to life, to liberty and to fair trial.
• Ensure that those responsible for the attacks of September 11, 2001 or other crimes under international law are brought to justice in fair and public trials in federal court without recourse to the death penalty.
We all want security from attacks by armed groups and individuals. But when we act to ensure security we shouldn't sacrifice our highest values and break international law to do it.