Drone Warfare

by Medea Benjamin

  Alston’s report noted that the broad US claim of a global armed conflict skirts some of the most central legal issues, including: “the scope of the armed conflict in which the US asserts it is engaged, the criteria for individuals who may be targeted and killed, the existence of any substantive or procedural safeguards to ensure the legality and accuracy of killings, and the existence of accountability mechanisms.”

  Most troubling, said Alston, is that the US government has “refused to disclose who has been killed, for what reason, and with what collateral consequences. The result has been the displacement of clear legal standards with a vaguely defined license to kill, and the creation of a major accountability vacuum.”

  Other experts concur. “Drones are not lawful for use outside combat zones,” Mary Ellen O’Connell, a professor at Notre Dame Law School, testified at an April 2010 Congressional hearing. “Outside such zones, police are the proper law enforcement agents and police are generally required to warn before using lethal force.”235

  Translation: While the US government asserts that its war on terror is global in scope, armed conflict is real and legally definable. If a military is fighting in an actual battle on an actual battlefield, then, no, it legally need not arrest and charge enemy fighters. But far away from a firefight in a recognized war zone, law enforcement, not militaries or intelligence agencies, is the appropriate—and legal—tool for pursuing those alleged to have ties to terrorism. That means that outside the context of a real battlefield, it is illegal to use weaponized drones, which are weapons of war incapable of taking a suspect alive.

  As the ACLU put it in an April 2010 letter to President Obama, “The entire world is not a war zone, and wartime tactics that may be permitted on the battlefields in Afghanistan and Iraq cannot be deployed anywhere in the world where a terrorism suspect happens to be located.”236

  BUT WHAT IF A COUNTRY CONSENTS TO DRONE STRIKES?

  Some argue that drone strikes outside recognized war zones are legal if the governments in whose territory they take place have offered their consent. In these cases, the argument goes, one cannot claim national sovereignty has been violated.

  According to a leaked US State Department cable, the dictator of Yemen agreed to allow drones and other American aircraft to launch strikes within his country, famously saying, “We’ll continue saying the bombs are ours, not yours.”237 The position of the Pakistani government was more complicated. At first, they consented privately but made public condemnations. A US diplomatic cable released by WikiLeaks quoted Prime Minister Yousuf Gilani saying, “I don’t care if they do it as long as they get the right people. We’ll protest in the National Assembly and then ignore it.”238 In late 2011, even that tacit consent was withdrawn after a NATO airstrike mistakenly killed twenty-four Pakistani soldiers.239 The Pakistani government responded by evicting a CIA drone base near its border with Afghanistan and threatening to shoot down any drones that violated its airspace.

  Legally, however, it doesn’t really matter whether a government consents or not. Sovereignty is but one aspect of the legal argument against extrajudicial drone killings. Another is the right of the accused. While some governments may have given the green-light for drone strikes within their territories, Professor O’Connell noted in her congressional testimony that they “cannot, however, give consent to a right they do not have.” Just because a foreign leader gives the okay for a foreign government to kill one of its citizens does not make it legal, in other words. Indeed, “States may not use military force against individuals on their territory when law enforcement measures are appropriate.”

  WHO HAS THE RIGHT TO CARRY OUT THESE ATTACKS?

  Outside of an active war zone, no one has the right under international law to launch a drone strike. Within a war zone, however, uniformed military personnel—and only uniformed military personnel—are legally entitled to employ lethal force, a fact the US government has itself cited in order to declare its Taliban opponents in Afghanistan “unlawful combatants.”

  While the US Air Force and JSOC have been conducting many drone operations, the CIA, a civilian agency, has played a significant role. According to Gary Solis, a law professor at Georgetown University and author of The Laws of Armed Conflict, that is plainly illegal.

  “In terms of international armed conflict, those CIA agents are, unlike their military counterparts but like the fighters they target, unlawful combatants,” Solis wrote in a March 2010 Op-Ed in the Washington Post.240 “No less than their insurgent targets, they are fighters without uniforms or insignia, directly participating in hostilities, employing armed force contrary to the laws and customs of war. Even if they are sitting in Langley, the CIA pilots are civilians violating the requirement of distinction, a core concept of armed conflict, as they directly participate in hostilities.”

  And it’s not just CIA agents violating the law. The New York Times reported in August 2009 that the CIA’s drones are in fact armed by private contractors from Blackwater, or “Academi” as it’s now known.241 And information obtained by McClatchy-Tribune News Service under the Freedom of Information Act found that at least a dozen defense contractors supply personnel for all aspects of the drone program, including in the so-called kill chain before missiles are launched.242

  Writing in a military law journal in 2008, Lt. Col. Duane Thompson, chief lawyer for the Air Force Operations Law Division, warned that allowing non-military personnel to communicate targeting information directly to pilots would violate international laws of war.243

  Civilians are not subject to the Uniform Code of Military Justice, which holds military personnel accountable for war crimes or for violations of rules of engagement on the use of force. “Persons who relay target identification for an imminent real-world mission to persons causing actual harm to enemy personnel or equipment should be uniformed military,” Thompson wrote.

  WHAT IF A COUNTRY OTHER THAN THE UNITED STATES DID IT?

  Proponents of American exceptionalism believe that what America does is right just because it is America doing it. But other than by pointing to George Washington and the red, white and blue, it will be hard for defenders of the US’s extrajudicial drone killings to make a principled case against other countries assuming the right to unilaterally launch drone strikes against their perceived enemies.

  That was the warning delivered in an October 2011 statement by Christof Heyns, the United Nations’ Special Rapporteur on extrajudicial, summary or arbitrary executions.244 An expert on human rights law based at the University of Pretoria in South Africa, Heyns strongly cautioned against the use of extrajudicial death-by-drone, noting that the “use of such methods by some States to eliminate opponents in countries around the world raises the question why other States should not engage in the same practices.”

  That America is America and thus entitled to employ tactics not permitted of less exceptional nations might work as an argument on a Sunday morning talk show or on the Washington Post editorial page. But out in the real world, Heyns noted, “The danger is one of a global war without borders, in which no one is safe.”

  As Human Rights Watch points out, were the US rationale to be applied by other countries, China might declare an ethnic Uighur activist living in New York City as an “enemy combatant” and send a missile into Manhattan; Russia could assert that it was legal for them to fatally poison someone living in London whom they claim is linked to Chechen militants.245

  Or consider the case of Luis Posada Carrilles, a Cuban-American living in Miami who is a known terrorist.246 Convicted of masterminding a 1976 bombing of a Cuban airliner that killed seventy three people, Posada has openly admitted to carrying out acts of terrorism with the express goal of overthrowing the Cuban government, including a spate of bombings in Havana in the 1990s (one of which killed an Italian tourist). In 2000, he was arrested in Panama with more than thirty pounds of C-4 explosives and accused of plotting to assassinate Fidel Castro as he addressed hundreds of students at the Univers
ity of Panama. Pardoned four years later, Posada illegally entered the United States.

  Given the precedent set by the US government with its targeted killings abroad, the Cuban government could claim—particularly in light of the failure of the US legal system to bring Posada to justice—that it has the right to drop a Hellfire missile in downtown Miami to take out an admitted terrorist and sworn enemy.

  That would not make it right. But just as the US’s employment of torture undermines its authority to denounce torture elsewhere, so it goes with its use of drones to assassinate perceived enemies. While exceptionalists may defend America’s right to employ such techniques, the prospect of other nations using that precedent ought to give them pause.

  WHAT ABOUT CIVILIAN CASUALTIES?

  A key concept in international conflict law is proportionality. This means that you have to weigh the importance of the military target against the harm that might come to civilians during the action, and you have to do everything possible to prevent mistakes and minimize civilian casualties.

  In present-day warfare, soldiers are not duking it out on the battlefield but fighting in urban and rural settings teeming with residential houses, bustling markets, children playing, pedestrians walking. The combatants the Americans are fighting don’t wear uniforms, and many are soldiers by night, farmers or taxi drivers or some other profession by day. The biggest problem is not so much fighting the enemy as finding the enemy.

  That’s where drones come in. But while their super-sensitive cameras can spot the guy carrying explosives and launch a missile to “neutralize” him, all too often those missiles also take out the car driver or family members or casual passersby.

  Luis Moreno-Ocampo, Chief Prosecutor at the International Criminal Court, wrote that “international humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage.”247

  The key question, then, is who gets to define “excessive”? If a missile hits its target but also takes out one innocent person, is that excessive? If it takes out two innocents for the one enemy, is that excessive? Three? Who is to say? And even more important, is anyone even asking these questions?

  In the absence of enough inquiring voices, and wrapped in the cloak of legal ambiguity and national security, impunity reigns.

  It wasn’t until March 2012 that Attorney General Eric Holder, speaking to law students at Northwestern University School of Law, addressed these legal issues. He said the Constitution empowered the President to protect the nation from any imminent threat of violent attack, and that there were no geographic limitations because “we are at war with a stateless enemy, prone to shifting operations from country to country.” He went on to justify killing even US citizens in foreign countries because the Constitution does not guarantee its citizens the right to judicial process, but only “due process.” The best response to Holder came not from the legal community, but from TV comedy host Stephen Colbert.

  “Yes, the founders weren’t picky,” Colbert agreed. “Trial by jury; trial by fire; rock, paper, scissors. Who cares? Due process just means there is a process that you do.” The current process, he explained, is that the president meets with his advisors and decides who to kill. Then he kills them. “If we’re going to win our never-ending war against terror, there are bound to be casualties,” Colbert sighed, “and one of them just happens to be the Constitution.”

  Morality Bites the Dust

  “The drones were terrifying. From the ground, it is impossible to determine who or what they are tracking as they circle overhead. The buzz of a distant propeller is a constant reminder of imminent death. Drones fire missiles that travel faster than the speed of sound. A drone’s victim never hears the missile that kills him.”

  —David Rhode, kidnapped by the Taliban in 2009248

  Some say drones save lives—and not just those of pilots. Drone proponents say they save the lives of soldiers thanks to the critical air support they provide to the ground troops, and they save civilians in conflict zones because they are more precise than high aerial bombing or long-range artillery. And, they argue, if you can kill the leaders of a violent extremist group with precision bombs and therefore prevent a wider conflict, it’s the moral thing to do.

  That was certainly the consensus during a meeting I had with representatives of the State Department and the Pentagon. “There’s a war going on, and drones are the most refined, accurate and humane way to fight it,” said Jeff Hawkins from the US State Department’s Democracy and Human Rights Bureau. When asked about the anti-American backlash, he replied, “I spent three years in Pakistan. There are so many conspiracy theories and so much anti-American sentiment in that country anyway. If it wasn’t the drones, they’d simply be angry at the United States for something else.”

  Maureen White, who deals with refugees at the State Department and was previously on the board of Human Rights Watch, was enthusiastic about drones and insisted that the real problem was one of marketing. “We have failed to control the debate,” she said. “The Taliban have a home-grown movement in the tribal areas of Pakistan that is vicious. They are terrorizing civilians and creating thousands of refugees. Taking out the leaders with drones is critical. It’s a pinpointed, targeted, precise and successful mechanism. From a military standpoint, drones are a dream come true.”

  The reality, however, is more complex. For while drones make it easier to kill some bad guys, they also make it easier to go to war.

  During the war in Vietnam, every family with a draft-age son was affected. So were their friends, their girlfriends, their grandparents—basically the whole community, at least among those who couldn’t buy their way out of military service. The same was true during World War II, when millions of Americans served in the military and those who didn’t were largely involved in support activities. Today, however, there is no obligatory military service and less than 1 percent of the population is enlisted.

  Fewer Americans are serving and, thankfully, fewer Americans are dying in today’s wars. While the death of every US soldier is a terrible tragedy, US deaths in post-9/11 wars are a fraction of those in previous conflicts, in part because of improvements in medical care. Over 400,000 American soldiers were killed in World War II and over 50,000 in Vietnam, compared with just over six thousand in the decade of wars in Afghanistan and Iraq from 2001–2011. One consequence of lower enlistment and lower casualties, however, is that there has been less of a national sense of urgency to examine whether the wars are worth fighting.

  The economic crisis that began in 2008 led to greater questioning of whether America could afford such a huge Pentagon budget and eroded public support for US military involvement in Afghanistan and Iraq. But it was not high up on the list of issues Americans—millions of whom were out of work—cared about. So Congress was able to keep allocating money for war, year after year, against the wishes of the majority.

  With drones substituting more and more for boots on the ground, the conflicts become even more obscure. The paradox is that while the US military is engaged in more and longer conflicts than ever in our history, fewer people are involved, touched, concerned, or engaged. The public is barely even aware of these conflicts. It’s like a low-grade fever that the body politic has learned to live with and basically ignores.

  And it seems from a Washington Post-ABC News poll conducted in February 2012 that the public not only ignores drones attacks, it supports them. Asked if they approve the use of unmanned “drone” aircraft against terrorist suspects overseas, eighty-three percent said yes, including seventy-seven percent who call themselves liberal Democrats. Even more stunning is that seventy-nine percent approved of using
drones even if those suspected terrorists are American citizens living in other countries.249

  “Robots may entail a dark irony,” warns philosopher Peter Singer.250 “By appearing to lower the human costs of war, they may seduce us into more wars.”

  Drones may be but the latest tool for killing and certainly not worse than, say, an atomic bomb. But the casual ease with which they can be used, in contrast to a nuclear weapon, threatens to make war all the easier. And that is a problem, according to Yosef Lapid, a professor of international relations at New Mexico State University, which is an hour away from the premier US training site for drone pilots at Holloman Air Force Base.251 It’s one thing if drones are “reducing the number of casualties or the risks that soldiers are assuming on the battleground,” Lapid told the Global Post. But “if that means killing becomes facile or societies have less problem engaging in war, then it’s a very serious problem.”

  With drone warfare, there is no need to unite the country behind a conflict, no need to call for shared sacrifice, no need for grueling debates in Congress. That was certainly the case with President Obama’s decision to get involved militarily in the overthrow of the regime of Libyan leader Muammar Qaddafi.

  On March 17, 2011 the United Nations Security Council passed Resolution 1973 sanctioning the establishment of a no-fly zone and the use of “all means necessary” to protect civilians within Libya.252 Just weeks later, President Obama approved the use of Predator drones, armed with Hellfire missiles, to pound Qaddafi’s compound and his loyalist troops. Six months later, Qaddafi was captured and killed. While the National Transitional Council nominally took control, warlords, Islamists, tribal leaders and would-be democrats were all vying for power.