About once a month, the Central Intelligence Agency sends a fax to a general at Pakistan’s intelligence service outlining broad areas where the U.S. intends to conduct strikes with drone aircraft, according to U.S. officials. The Pakistanis, who in public oppose the program, don’t respond.
On this basis, plus the fact that Pakistan continues to clear airspace in the targeted areas, the U.S. government concludes it has tacit consent to conduct strikes within the borders of a sovereign nation, according to officials familiar with the program.
Representatives of the White House’s National Security Council and CIA declined to discuss Pakistani consent, saying such information is classified. In public speeches, Obama administration officials have portrayed the U.S.’s use of drones to kill wanted militants around the world as being on firm legal ground. In those speeches, officials stopped short of directly discussing the CIA’s drone program in Pakistan because the operations are covert.
Now, the rationale used by the administration, interpreting Pakistan’s acquiescence as a green light, has set off alarms among some administration legal officials. In particular, lawyers at the State Department, including top legal adviser Harold Koh, believe this rationale veers near the edge of what can be considered permission, though they still think the program is legal, officials say.
Two senior administration officials described the approach as interpreting Pakistan’s silence as a “yes.” One dubbed the U.S. approach “cowboy behavior.”
In a reflection of the program’s long-term legal uncertainty and precedent-setting nature, a group of lawyers in the administration known as “the council of counsels” is trying to develop a more sustainable framework for how governments should use such weapons.
European Pressphoto AgencyDrone strikes in Pakistan have been fewer since retired Gen. David Petraeus took over the CIA.
IntelCenter / Associated PressA drone strike killed al Qaeda figure Abu Yahya al-Libi.
European Pressphoto AgencyAtiyah Abd al-Rahman, another al Qaeda figure, was also killed in a drone strike.
The effort is designed to fend off legal challenges at home as well as to ease allies’ concerns about increasing legal scrutiny from civil-liberties groups and others. The White House also is worried about setting precedents for other countries, including Russia or China, that might conduct targeted killings as such weapons proliferate in the future, officials say.
Because there is little precedent for the classified U.S. drone program, international law doesn’t speak directly to how it might operate. That makes the question of securing consent all the more critical, legal specialists say.
In public, Pakistan has repeatedly expressed opposition to the drone program, and about 10 months ago closed the CIA’s only drone base in the country. In private, some Pakistani officials say they don’t consider their actions equivalent to providing consent. They say Pakistan has considered shooting down a drone to reassert control over the country’s airspace but shelved the idea as needlessly provocative.
Pakistan also has considered challenging the legality of the program at the United Nations.
“No country and no people have suffered more in the epic struggle against terrorism than Pakistan,” Pakistan President Asif Ali Zardari told the U.N. General Assembly Tuesday. “Drone strikes and civilian casualties on our territory add to the complexity of our battle for hearts and minds through this epic struggle.”
A former Pakistani official who remains close to the program said Pakistan believes the CIA continues to send notifications for the sole purpose of giving it legal cover.
It is possible Pakistan is playing both sides. Ashley Deeks, a former State Department assistant legal adviser under Mr. Koh who is now at the University of Virginia, said a lack of a Pakistani response to U.S. notifications might be a way for Pakistan to meet seemingly contradictory goals—letting the CIA continue using its airspace but also distancing the government of Pakistan from the program, which is deeply unpopular among Pakistanis.
Legal experts say U.S. law gives the government broad latitude to pursue al Qaeda and its affiliates wherever they may be. A joint resolution of Congress after the Sept. 11, 2001, attacks authorized the president to use force against the planners of the attacks and those who harbor them. Then-President George W. Bush that month signed a classified order known as a “finding” authorizing covert action against al Qaeda.
Government consent provides the firmest legal footing, legal experts say. The U.S. has that in Yemen, whose government assists with U.S. strikes against an al Qaeda affiliate. In Somalia, the nominal government, which controls little territory, has welcomed U.S. military strikes against militants.
In an April speech, White House counterterrorism adviser John Brennan said the administration has concluded there is nothing in international law barring the U.S. from using lethal force against a threat to the U.S., despite the absence of a declared war, provided the country involved consents or is unable or unwilling to take action against the threat.
On the international stage, matters are less clear-cut. The unwilling-or-unable doctrine, which was first publicly stated by the George W. Bush administration and has been affirmed by the Obama administration, remains open to challenge abroad, legal experts say. Conducting drone strikes in a country against its will could be seen as an act of war.
Benjamin Wittes, a senior fellow at the Brookings Institution, said the U.S. drone approach in Pakistan is getting closer to the edge. “It doesn’t mean it is illegal, but you are at the margins of what can reasonably be construed as consent,” he said.
Kenneth Anderson, a law professor at American University, defended the right to conduct drone operations without consent if a country refuses to address the threat. He added, however, that such a program can’t be sustained by secret winks and nods.
“Strategic ambiguity is a real bad long-term policy because it eventually blows up in your face,” Mr. Anderson said. “It’s not stable.”
Senior U.S. officials worry about maintaining the support of an important ally—the U.K.—where officials have begun to express concerns privately about the extent of Pakistan’s consent.
Britain began a review to see whether under British law it could continue to cooperate with the program, say U.S. and British officials, after Pakistan closed the CIA’s drone base in December. Pakistan took that action after a strike by a manned U.S. aircraft killed two dozen Pakistani troops mistaken for militants. Britain eventually decided to maintain its cooperation.
John Bellinger, the top State Department legal adviser in the George W. Bush administration, said that for the U.S., it is “not unreasonable to assume consent” from Pakistan for the use of drones, “particularly when the U.S. conducts repeated attacks and it’s open and obvious.”
But some in the U.K., Mr. Bellinger added, might “need to have greater clarity that there actually is consent,” given increasing domestic legal scrutiny for Britain’s supporting role in the program.
Until the raid that killed Osama bin Laden, there was a more open channel of communication.
In the early days of the Afghan war, lists of specific individuals to be targeted on Pakistani soil by U.S. drones were approved by both the U.S. and Pakistan, in what was called a “dual-key” system. Starting about four years ago, the U.S. began increasingly to go it alone.
By last year, according to U.S. officials, the system in place was that the CIA would send a regular monthly fax to Pakistan’s Inter-Services Intelligence agency. The fax would outline the boundaries of the airspace the drones would use—large areas along the Pakistan-Afghanistan border referred to as flight “boxes” because they are shaped like three-dimensional rectangles in the sky. There was no mention of specific targets.
The ISI would send back a fax acknowledging receipt. The return messages stopped short of endorsing drone strikes. But in U.S. eyes the fax response combined with the continued clearing of airspace to avoid midair collisions—a process known as “de-confliction”—represented Pakistan’s tacit consent to the program.
After the May 2011 bin Laden raid, which the U.S. did without Pakistani permission or knowledge, the ISI stopped acknowledging receipt of U.S. drone notifications, according to U.S. and Pakistani officials. Replies were stopped on the order of the ISI chief at that time, said an official briefed on the matter.
“Not responding was their way of saying ‘we’re upset with you,’ ” this official said. The official said the ISI chief chose that option knowing an outright denial of drone permission would spark a confrontation, and also believing that withdrawing consent wouldn’t end the strikes.
Administration lawyers, including those with qualms such as Mr. Koh, believe the CIA’s campaign is legal. They believe they have consent, however tacit, primarily because the Pakistani military continues to clear airspace for drones and doesn’t interfere physically with the unpiloted aircraft in flight, according to officials involved with the administration’s legal thinking.
Still, for some U.S. officials, including Mr. Koh, the lack of an ISI response to faxes was unnerving, leaving already-vague communications even more open to interpretation.
Spurred by concerns about the future of the drone program in Pakistan, administration lawyers have been considering the feasibility of making changes. One idea calls for putting some of the drones under control of the U.S. military, which would allow officials to talk more openly about how the program works and open the door to closer cooperation with the Pakistanis, according to U.S. and Pakistani officials.
The U.S. has also considered a coordinated campaign that could involve both U.S. drones and Pakistani F-16 fighter planes, these officials said.
In meetings in Washington last month with the new chief of Pakistan’s ISI, Lt. Gen. Zahir ul-Islam, American officials raised the prospect of a “drone drawdown,” according to Pakistani officials. American officials said the idea of ramping down the program gradually as security conditions permit has been hotly debated for months. Pakistani officials considered the proposal to be “amorphous” and “without detail,” an adviser to Pakistan’s government said.
Americans also raised the prospect of creating “joint ownership” of the drone program, the Pakistani adviser said, but no changes were agreed to.
Since retired Gen. David Petraeus became CIA director about a year ago, the agency has taken some steps to ease concerns about the drone program, according to officials. The frequency of drone strikes in Pakistan has fallen to an average of four a month, versus 10 monthly in the prior 12 months, based on a tally from the New America Foundation, a nonpartisan think tank.
Officials said Gen. Petraeus has occasionally overruled recommendations of the CIA’s Counterterrorism Center and declined to authorize some strikes that could create friction with Pakistan. One U.S. official said the pace of counterterrorism operations mirrors the thinner ranks of al Qaeda after years of strikes.
The effort to put the program on a firmer legal footing is running into some hurdles. The council of counsels wants to make details of counterterrorism programs public in some ways to address court challenges and reassure anxious allies, as well as to avoid spurring future use of these kinds of technologies by other countries.
But the agency general counsels have drawn the line at revealing detailed criteria for picking targets or disclosing who makes the decisions. Officials say leaving these things ambiguous could help shield officials involved against possible court challenges and avoid providing information that militants could use to evade targeting. Courts in Europe have sought to put on trial some of the CIA officers and foreign partners alleged to be involved in detaining suspected militants in secret sites during the Bush administration.
—Julian E. Barnes contributed to this article.
A version of this article appeared September 26, 2012, on page A1 in the U.S. edition of The Wall Street Journal, with the headline: U.S. Unease Over Drone Strikes.