Drone warfare

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When Senator Rand Paul took to the Senate floor last month to express his concerns over the Obama administration’s drone policies in an unusually long and widely-discussed 13 hour filibustering speech, the somewhat paranoid senator from Kentucky succeeded in drawing attention to an important strategic issue, even if his worries about government assassinations inside the US are unlikely to occur. Unless, of course, the Drunk Predator Drone goes haywire. Today, the US Senate Judiciary Committee will hold a hearing on the legality of targeted killings and the use of drones.

If you were the curious sort (and let’s assume that you are) you’d probably be wondering what the use of drones  (and, being astute as well as curious, you’d limit your musings to armed drones in particular) look like in the near future? Is the United States setting an appropriate and desirable precedent for use?  At a lively and entertaining seminar hosted by American University law school, a number of relevant strategic, legal, political and ethical issues surrounding the use of drones were debated by a knowledgeable (and witty, even!) panel of scholars including founder of the lawfareblog.com Benjamin Wittes from the Brookings Institution, law professor Stephen Vladeck from lawfareblog.com and Fordham Law School, and Nathan Sales, Assistant Professor of Law at George Mason University School of Law and former Deputy Assistant Secretary for Policy Development at the U.S. Department of Homeland Security.

They stressed that, when discussing drones, it is necessary to separate the platform from the policy. While drone technology raises a few unique issues that need to be addressed, most of the controversy surrounding their use is in fact grounded in other well established issues. Targeted killings with drones raise legal issues of due process; humanitarian issues related to proportionality and distinguishing lawful targets from non-combatants in an asymmetrical conflict; constitutional issues of presidential authority for the use of force and conduct of overseas operations; and strategic issues related to pre-emption and engendering resentment among populations vulnerable to radicalization. These issues have existed long before the extensive use of armed drones.

One concern, though, is the ease with which drone strikes can be conducted due to the relatively low risk involved to US personnel and equipment. In some cases, when the evidence is marginal and the risks of a covert operation with boots on the ground are too high, decisionmakers might rightly decide not to act. Drones allow a much easier solution – and one for which an after-action investigation would hardly be carried out. It appears that drone strikes are often «fire and forget» missions that may quickly lead to less discriminate use. While many an analyst got all riled up when George W. Bush introduced the concept of preventive war (which they confusing claimed was preemption, but they were wrong), the Obama folks are conducting a preventive counterterrorism campaign. Hit ’em before they have a chance to hit us. But are you a death-penalty-deserving terrorist before commiting an act of terror?

What would US forces use if a drone strike was not an option? For some, capture and criminal prosecution is the preferred method of counterterrorism operations. From a strategic perspective, this makes a lot of sense. Living suspects may provide information that lead to further arrests, the sites where they are captured often prove to be a treasure trove of intelligence, family members and neighbors of suspects are not inadvertently killed along with the target and the United States demonstrates its commitment to the rule of law by using the courts rather than the business end of a Hellfire missile. The use of targeted killings, according to this perspective, should be used only in the most extreme circumstances.

The problems with capturing terror suspects, however, are both strategic and practical. In the period after September 2001, many thousands of terror suspects were detained but this policy gradually shifted to the use of targeted killings from drone strikes. This development appears to coincide with the movement of extremist groups from locations inside Afghanistan, where US and NATO forces had the operational access necessary to effect a capture, to other more difficult regions: the FATA in Pakistan, Yemen and multiple regions in Africa. In these ungoverned regions where central authority is weak or non-existent, effective law enforcement operations to capture suspects are more challenging and the use of drones are viewed as the preferred option. Where drone strikes are preferable, capture is most likely less practical. And were capture is possible, drone strikes are likely inappropriate and/or illegal.

Furthermore, if the United States considers itself to be at war (which it does, albeit an asymmetric one) with these terrorist groups, then detention and criminal prosecution are unnecessary steps under the standard conventions of war, some argue. Once an individual has been identified as a member of an armed group with which the US is engaged in conflict, it is reasonable that the enemy is targeted. The process by which a suspect is determined to present a real danger to US security, identified as a «terrorist» and deserving of a so-called «signature strike», however, is a complex issue in and of itself. Where is the acceptable threshold beyond which a sufficient abundance of proof has been obtained whereby an individual is placed on a kill list? Media reporting over the past year has shed some light on this process, and President Obama himself has discussed this to a limited extent.

The legal-constitutional basis for targeted killings can be found in the 2001 Authorization for the Use of Military Force (AUMF) passed by Congress as a response to the 9-11 attacks. The AUMF authorizes the president to utilize military force but does not specify a particular adversary apart from those responsible for the 9-11 attacks:

«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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.»

As US officials have noted recently, Al Qaeda is on the verge of strategic defeat and targeted killings appear to have expanded to Al Qaeda franchises and associates. The legal authorization for the continued use of military force, including special operations forces and drone strikes, has become increasingly vague and may no longer be supported by the 2001 AUMF. The legislation has become a huge blank check for using force abroad by the administration. Does a new AUMF need to be drafted, and what would it even look like? This conversation is only beginning to take shape.

The use of drones for targeted killings is one of the worst kept secrets in the Obama administration and occupies an odd political space: a covert mission that has been acknowledged but remains cloaked in secrecy. Some scholars argue that the administration should be more open regarding the memoranda that establish the legal framework for targeted killings and the use of drones. By clarifying exactly how decisions are made and where the legal and procedural boundaries lie, the US might encourage a debate and a set of standard practices for the use of this technology.

The current situation, in which rumors abound of US drone operators firing a second missile at the same target in order to eliminate those who come to the aid of the victims from the first strike – a so-called «double tap», or grossly underreporting civilian deaths from drone strikes, will simply encourage misuse by other countries once they (inevitably) perfect these technologies themselves. Drones will soon proliferate rapidly around the globe and become a standard part of most nations’ arsenals. It may be in the best interest of the United States and its allies to consider establishing some «rules of the road» while it retains a strategic and technological edge.

I don’t worry so much about the burrito bomber or my neighbor’s Parrot (Cute toy. I sorta want one. Santa, are you listening?), but a synchronized fleet of quadcopters toting some nasty biological agent…now that gives me pause. Wait, what was in that burrito again?

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