Bellinger: Obama should justify drone use

John B. Bellinger III is an adjunct senior fellow in international and national security law at the Council on Foreign Relations. He served as legal adviser for the State Department from 2005 to 2009 and as legal adviser to the National Security Council from 2001 to 2005. This is from The Washington Post.

The killing of the U.S.-born al-Qaida cleric Anwar al-Awlaki in Yemen on Friday, along with another U.S. citizen and two other al-Qaida operatives, is likely to fuel the international controversy over the legality and wisdom of the Obama administration's dramatically increased use of drone attacks.

For several years, U.S. allies have made no public comment even as U.S. drone strikes have killed twice as many suspected al-Qaida and Taliban members than were ever imprisoned at Guantánamo Bay. But human rights groups and the media are focusing more attention on the legality and collateral damage of these attacks. The U.S. drone program has been highly effective in killing senior al-Qaida leaders, but the administration needs to work harder to explain and defend its use of drones -- to allies and critics -- if it wants to avoid losing international support and exposing administration officials to legal liability.

The U.S. position, under the George W. Bush and Obama administrations, has been that drone strikes against al-Qaida and Taliban leaders are lawful under U.S. and international law. They are permitted by the September 2001 Authorization to Use Military Force Act, as well as under international law and the United Nations Charter as actions in self-defense.

Obama administration officials have explained in the past that strikes against particular militant leaders are permissible, either because the individuals are part of the overall U.S. conflict with al-Qaida or because they pose imminent threats to the United States. President Barack Obama emphasized al-Awlaki's operational role on Friday, stating that he was the "leader of external operations for al-Qaida in the Arabian Peninsula."

The killing of al-Awlaki raises additional legal concerns because U.S. citizens have certain constitutional rights wherever they are in the world. Some human rights groups have asserted that due process requires prior judicial review before killing an American, but it is unlikely that the Constitution requires judicial involvement in the case of a U.S. citizen engaged in terrorist activity outside this country. Administration lawyers undoubtedly reviewed the targeting of al-Awlaki even more carefully than of a non-American, and the Justice Department reportedly prepared an opinion concluding that his killing would comply with domestic and international law.

But the U.S. legal position may not satisfy the rest of the world. No other government has said publicly that it agrees with the U.S. policy or legal rationale for drones. European allies, who vigorously criticized the Bush administration for asserting the unilateral right to use force against terrorists in countries outside Afghanistan, have neither supported nor criticized reported U.S. drone strikes in Pakistan, Yemen and Somalia. Instead, they have largely looked the other way, as they did with the killing of Osama bin Laden.

Human rights advocates, on the other hand, while quiet for several years (perhaps to avoid criticizing the new administration), have grown increasingly uncomfortable with the attacks. Last year, the UN rapporteur for summary executions and extrajudicial killings said that drone strikes may violate international humanitarian and human rights law and could constitute war crimes. U.S. human rights groups, which stirred up international opposition to Bush administration counterterrorism policies, have been quick to condemn the al-Awlaki killing.

Obama administration officials should provide more information about the strict limits they apply to targeting and about who has been targeted. One of the mistakes the Bush administration made in its first term was adopting novel counterterrorism policies without attempting to explain and secure international support for them.

If the Obama administration wants to avoid losing the tacit support of its allies for drone strikes and its other counterterrorism policies, it should try to ensure that they understand and agree with the U.S. policy and legal justification.

Otherwise, the administration risks having its largely successful drone program become as internationally maligned as Guantánamo.