Drones: A Tool, Not a Policy
In response to expanding public debate, today the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights is holding a hearing titled “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing.” The complex debate has several facets: establishing the effectiveness and the limits of drones’ use in surveillance and targeted killings to disrupt and dismantle terrorist organizations; creating oversight and policies to keep their use in line with domestic and international law; and setting precedents for their use as the technology is widely adopted around the world. With concerns being raised across the political spectrum, and by counter-terrorism experts and human rights lawyers alike, Congress and the administration should work together to set clear policies that ensure the tools to keep America safe are sustainable and effective, by conforming their use to our values and laws. Experts and former officials have proposed a range of fixes, from moving strikes to DoD, where they can be publicly acknowledged, to ending certain types of strikes, to providing for mandatory pre- or post-strike reviews.
Drones are a powerful tool that have contributed to the decimation of al Qaeda. A recent report from the Council on Foreign Relations outlines the tactical successes of targeted killings: “In a narrow military sense, drone strikes have proven effective in achieving their initial objective: killing suspected ‘high-value’ al-Qaeda leaders. In 2009, CIA director Leon Panetta observed that drones are ‘the only game in town in terms of confronting or trying to disrupt the al-Qaeda leadership,’ which remains the position of the Obama administration. By December 2011, President Obama boasted, ‘twenty-two out of thirty top al-Qaeda leaders [have] been taken off the battlefield’—all but Osama bin Laden via drone strikes. In one of his final letters to his followers, bin Laden warned of “the importance of the exit from Waziristan of the brother leaders . . . and that you choose distant locations to which to move them, away from aircraft photography and bombardment.’ Altogether, U.S. drone strikes in Pakistan, Yemen, and Somalia have significantly degraded the capability of al-Qaeda to plan or conduct acts of international terrorism. From a strategic perspective, however, it remains unclear if drone strikes are successful or sustainable.” [CFR, 1/31/13]
Counter-terrorism professionals say transparency, strategic and legal frameworks, and clear oversight are needed. Former intelligence analyst Josh Foust explains the need for transparency: “the U.S. counterterrorism community internally, and its observers externally, in the U.S. and overseas, need to be able to gauge the effectiveness of targeted strikes: internally, to best allocate increasingly scarce resources; domestically, to assure American citizens that their government is using the best data-driven policies available to protect them; and globally, to protect the foundational legitimacy of U.S. security policy, and make a convincing argument to global publics that they benefit as well.”
Brookings’ P.W. Singer and Thomas Wright have called for a legal and strategic framework to shape drones’ use: “Obama should publicly lay out criteria by which the United States will develop, deploy and use these new weapons. The President has a strong case to make — if only he would finally make it. After all, the new weapons have worked. They have offered new options for military action that are more accurate and proportionate and less risky than previously available methods. But they have also posed many new complications. Explaining our position is about embracing both the good and the bad. It is about acknowledging the harms that come with war regardless of what technology is being used and making clear what structures of accountability are in place to respond.” The questions they would like to see answered are: “What are the key strategic goals and ethical guidelines that should drive the development and use of these new technologies? Is current U.S. and international law sufficient to cover them?” [Josh Foust, 2/13. P.W. Singer and Thomas Wright, 2/17/13]
Outside experts have developed an extensive list of specific reforms to make targeted killings sustainable, more effective and more ethical. For example:
Transfer all targeted killing operations to DoD: Micah Zenko explains, “The main obstacle to acknowledging the scope, legality, and oversight of U.S. targeted killings beyond traditional or “hot” battlefields is the division of lead executive authority between the Joint Special Operations Command (JSOC)—a subunit of the Department of Defense (DOD) Special Operations Command—and the Central Intelligence Agency (CIA). In particular, the U.S. government cannot legally acknowledge covert actions undertaken by the CIA. The failure to answer the growing demands for transparency increases the risk that U.S. drone strikes will be curtailed or eliminated due to mounting domestic or international pressure. To take a meaningful first step toward greater transparency, President Barack Obama should sign a directive that consolidates lead executive authority for planning and conducting nonbattlefield targeted killings under DOD.” [Micah Zenko, 4/16/13]
End or limit signature strikes: As Zenko explains, unlike so-called personality strikes against specific known individuals: “signature strikes target anonymous suspected militants ‘that bear the characteristics of Qaeda or Taliban leaders on the run.’ …Human rights advocates, international legal experts, and current and former U.S. officials dispute whether this post hoc methodology meets the principle of distinction for the use of lethal force.” For that reason, among others, he argues that the U.S. should “either end the practice of signature strikes or provide a public accounting of how it meets the principles of distinction and proportionality that the Obama administration claims.” [Micah Zenko, 1/31/13]
Mandatory Consultation: Congress could mandate a formalized, publicly understood executive or executive-legislative review process before attacks; for example, as Gerard Magliocca of Indiana University proposes, “Congress create a statutory regime for such decisions that would require the National Security Council to sign off on each of these citizen attacks before the President can proceed.” [Gerard Magliocca, 2/05/13]
After-the-fact review: Brookings’ Benjamin Wittes and others have proposed mandatory review processes, either executive, judicial or independent in nature, that would consider every targeted killing authorized and provide both fuller oversight and a check on overly-aggressive use of the tactic. [Lawfare, 7/12]
Judicial Review: Rosa Brooks of Georgetown University Law Center argues for greater judicial review, one illustrative example of which is: “Congress should consider creating a judicial mechanism, perhaps similar to the existing Foreign Intelligence Surveillance Court, to authorize and review the legality of targeted killings outside of traditional battlefields. While the administration argues that such targeting decisions present a non-justiciable political question because of the president’s commander-in-chief authority, the use of military force outside of traditional battlefields and against geographically dispersed non-state actors straddles the lines between war and law enforcement. While the president must clearly be granted substantial discretion in the context of armed conflicts, the applicability of the law of armed conflict to a particular situation requires that the law be interpreted and applied to a particular factual situation, and this is squarely the type of inquiry the judiciary is bested suited to making.” [Rosa Brooks, 4/11/13]
What We’re Reading
Iran denied any links with an alleged terrorist plot that Canadian authorities claim was directed by al Qaeda operatives in Iran and sought to derail a passenger train.
The FBI is facing questions in Congress over whether it mishandled information about Boston bombing suspect Tamerlan Tsarnaev two years ago.
A senior Israeli military official said Syrian forces have used chemical weapons against rebels several times.
Iraqi security forces stormed a Sunni protest encampment in a village near the northern city of Kirkuk, prompting clashes between government forces and gunmen that left dozens dead and wounded and sharply raised the stakes in Iraq’s sectarian troubles.
A car bomb exploded outside the French embassy in Tripoli, injuring two French security guards and a local girl.
Spain arrested two North Africans suspected of links to the North African branch of al Qaeda, following an investigation lasting more than a year.
Japan would respond with force if any attempt is made to land on disputed islands, PM Shinzo Abe warns, as eight Chinese ships sail in the area.
Myanmar’s president announced an amnesty for about 100 prisoners, 56 of whom were confirmed as political detainees by a group monitoring activists held in the country’s jails after the EU lifted all sanctions on the country with the exception of an arms embargo.
Zimbabwean President Robert Mugabe’s party proposed a measure to seize majority stakes in foreign-owned mines without paying compensation, ahead of an election expected this year.
Paraguay’s President-elect Horacio Cartes, one of his nation’s wealthiest men, said he would “never put personal interests before the country’s.”
Commentary of the Day
J.M. Berger analyzes the past connections to jihad in Boston.
Eugene Robinson discusses the double standard in the U.S. on terrorism and gun control.
