The war in Iraq is over and the war
in Afghanistan is winding down to an announced U.S. withdrawal date of “combat
forces” in 2014. But the separate, although related “war on terrorism”
continues and will no doubt do so for the foreseeable future. Anti-western
Islamic extremists, some organized as affiliates of Al-Qaida, operate in Yemen,
Pakistan, Algeria, Libya, Somalia, Mali, and other nations in the Middle East
and Africa. Thus the current political controversy about the use of drones as
weapons systems will need to be resolved as their use will remain relevant for
many years.
The Obama Administration has greatly
expanded the role of armed drones especially in Pakistan, Afghanistan and
Yemen, partly because of enhanced technological capability which has emerged
over the last four years and partly because of military advantages they offer
in the struggle against global terrorism.
The issue now being argued in the
media and the U.S. Senate has focused on the strategy of “targeted killings” in
which individuals known or suspected of being terrorist operatives are selected
for attack by armed drones launched from regional sites but controlled by
operators (“pilots”) thousands of miles away. Opposition to this tactic has
arisen mostly from predictable sources in the U.S. These include the political
Left, both commentators and Senators, anti-military organizations i.e. Code
Pink and Left leaning civil liberties groups i.e. the American Civil Liberties
Union (ACLU).
Opponents offer different perspectives.
Some criticize the tactic as a moral issue. Others claim U.S. constitutional
violations. Others claim it violates international law.
Part of the problem with drones for
opponents appears to be the psychological impact of a new technology which
seems to employ impersonal robot- like ruthlessness. In truth, although the aircraft are unmanned,
they are being guided via satellite from long distances, and are still being “flown” by
human controllers who have more detailed information about their targets than
would a pilot of a more conventional fighter aircraft. Sensors on drones
provide more detailed information and their slower speed and enhanced loitering
capability make their target identification /acquisition and weapons delivery
more precise than conventional aircraft, thus reducing the possibility of wrong
targets or casualties involving innocent bystanders. Also as a practical matter, drones are
significantly less expensive than fighter aircraft and the total avoidance of
the potential loss of pilots is a major advantage.
The underlying issue in the drone debate
is however, the changed nature of warfare as it relates to international
terrorism. This is a war between organized military and intelligence resources
of the U.S. deployed and engaged against various components of an armed entity that
has, and continues, to target American and allied military and civilian
personnel and infrastructure around the world. This enemy has no organized national
identity, integrates itself with general populations and wears no identifying
uniform, but they are clearly not
civilians and have thus been identified as enemy combatants. Critics of the
targeted killings of terrorist leadership argue that they often occur “far from
the battlefields” and are thus not part of any declared conflict. But despite the concentration of forces in
Afghanistan where the U.S. is supporting the national government in its
struggle against the Taliban insurgency, there are no geographically defined
battlefields in the war on terrorism. The battlefield is wherever the
terrorists reside and operate. Terrorist
attacks planned, launched or directed from Yemen, Pakistan or Somalia are just
as deadly as those originating in Iraq or Afghanistan.
The Obama Administration’s position
is that killing a terrorist enemy where we find him with the permission of the
governments of those nations where the attacks take place is an act of
preemptive self-defense under international law. Unfortunately, the formulation
of international law lags far behind the problem of international terrorism and
the use of aerial attack in response to it. Attempts to interpret such laws to
apply to this new threat lead to a wide difference in opinions often heavily
influenced by underlying ideological differences.
The basic national right of national
self- defense is acknowledged in Article 51 of the United Nations Charter
(1945) but does not address a preemptive right. However, that right is accepted
as customary international law based on the so called Caroline Case of 1837 in
which standards of applicability include the “necessity of self- defense,
instant and overwhelming” and leaving no choice of means and no moment of
deliberation.” This 19th Century formulation has in general been
refined to the basic requirements of “imminent necessity” and “proportionality”
of action.
The problem of interpreting
international laws crafted in less technologically advanced times and designed
to apply to interactions between states so as to apply between a state and
individuals representing a non-state actor is one for
lawyers and academics. But the resolution of the terrorist threats cannot wait
and the President's constitutional responsibilities as Commander -in-Chief may
make such resolution impossible in all circumstances.
The issue of targeted killings i.e.
specific targets identified by intelligence sources as members of terrorist
organizations has been further complicated by two incidents where the targets
have been U.S. citizens by virtue of their having been born in the U.S. Critics of these two operations
claim that the guarantee of “due process” to U.S. citizens by the Fifth and
Fourteenth Amendments to the Constitution requires a civilian judicial
proceeding to prove guilt and subsequent proceeding to impose a sentence, thus
making the Commander in Chief’s (U.S. President's) determination that such
individuals are appropriate targets by drones or any other military means is
unconstitutional.
This is another instance where the
relative uniqueness of the nature of international terrorism in traditional
jurisprudence comes in conflict with the President's duties as
Commander-in-Chief and his responsibility to protect the citizens of the United
States. It invites the question of whether a
citizen of the U.S. who travels abroad, joins an armed and militant
organization for the purposes of sponsoring, encouraging, inciting or carrying
out violent attacks on U.S. citizens, military or civilian, has in actual
effect renounced his U.S. citizenship and the protections therein.
Even if not, then does that citizen’s
participation in an organization of armed combatants with the same purpose, still
render that citizen as a proper target for military disposition?
Once again, the impossibility of
arrest, and extradition, and the aforementioned need for the President to act
before, not after, a terrorist attack, makes the constitutional argument seem
inappropriate.
U.S. Attorney General Holder,
speaking at Northwestern University Law School, outlined the Obama
administration's legal rationale for killing U.S. citizens in foreign
countries, as it did in 2011 with the airstrike that killed suspected al-Qaida
operative Anwar al-Awlaki in Yemen and later his son, both U.S. citizens by
birth.
“ . . .the government authorizes
targeted killings against U.S. citizens only after a careful review that finds
the citizen poses an imminent threat of attack against the United States, that
capture is not a viable option, and that the killing would be in line with the
laws of war.”
Still, the debate among legal
experts is inconclusive at this point as there is no agreement on which legal
framework applies; International Human Rights Law; the Law of Armed Conflict as
outlined in the Geneva Conventions or the 2001 U.S. Congressional Authorization
for the Use of Military Force Against Terrorists. School of Law professor at the University of
Virgina Saikrishna Prakash supports the
Administration's position
"I believe the 2001
Authorization [for Use of Military Force Against Terrorists] permits the
president to use military force against al-Qaida and the Taliban. If the
president determines that a U.S. citizen is a member of either group, he may
use military force against that citizen. Apparently the president
concluded that al-Awlaki was a member of al-Qaida and he further concluded that
an attack was warranted. The president's actions were wholly consistent with
domestic law."
In December, 2010 a federal district
judge dismissed a lawsuit against the government by the father of al-Awlaki in
an effort to force the government to disclose the legal criteria for his name
appearing on a “kill list”. In his
opinion Judge Bates' acknowledgment that "this is a unique and
extraordinary case that presents fundamental questions of separation of powers
involving the proper role of the courts in our constitutional structure”,
and that "vital considerations of national security and of military
and foreign affairs and hence potentially of state secrets.”
Still, terrorism is, in the minds of
some on the political Left, a civilian law enforcement issue. It can be so, if
the terrorists are operating largely on their own in national territories which
choose to treat them as such. The U.S. government has arrested and tried many
individuals in federal court under domestic anti-terrorism laws. However, in Yemen, Pakistan and Afghanistan,
the national military forces are engaged against organized terrorists with the
assistance of the U.S. military. Utilization of aerial resources including
drones is a part of this military cooperation. The implausibility of arrest in
remote and unsecured regions and extradition to the U.S. for civilian criminal
proceedings should be obvious and U.S. constitutional protections for civilian
criminal defendants in the U.S do not apply to foreign enemy combatants in
foreign countries.
Current discussions in the U.S.
Senate involve the attempt to create some kind of judicial review in the name of
“due process”. The specific suggestion
is that a judicial panel be created similar to the Foreign Intelligence
Surveillance Court which was established to authorize wiretaps and searches of
suspected spies and terrorists.
Presumably this new court would hear evidence provided by the executive
branch to justify the targeting of individuals or at least U.S. citizens, for
elimination abroad by military or intelligence agencies.
Since there is little likelihood of
large numbers of U.S. citizens working abroad with foreign terrorist organizations,
a court restricted to this part of the drone effort might be approved but it is
unlikely that the Congress would allow judicial interference in the conduct of
military/intelligence operations against foreign combatants abroad.
Ironically, the ACLU, which believes that the whole world is a theoretical
courtroom in which lawyers should decide all important matters, is opposed to
such a court. They cling to the
impossible construct of the “apprehension/extradition” civilian trial procedure. As a back-up they support an equally unlikely
scenario creating of a court to hear “damages claims” against the government
for U.S. citizens found to be terrorists and eliminated in foreign
countries. The national security trump
card possessed by the executive branch makes this highly unlikely from both a
political and a judicial point of few.
Al Qaida operating in Pakistan and
its affiliates Al Qaida in the Islamic Maghreb (AQIM) operating in Algeria and
Mali and Al Qaida in the Arabian Peninsula (AQAP), operating in Yemen remain
fully functioning organizations which pose serious threats to regional
stability and to U.S. and other Western interests. This is the real world in which all U.S.
Presidents must operate.