In the drone age, presidential whim is not enough
At a street-justice level, killing al-Qaida terrorists with missiles fired by drone aircraft has a kind of cosmic symmetry: Al-Qaida made the rules — surprise attacks by air — so now al-Qaida has to live with them. Or not.
But the United States is a nation of laws and a signatory to the Geneva Conventions. Street justice is not allowed, but the laws haven’t caught up to combat against stateless enemies, much less death by remote control.
“It is well that war is so terrible, or we should grow too fond of it,” said Robert E. Lee as he surveyed the carnage of the Fredericksburg battlefield in 1862. Drone warfare is not so terrible, at least at our end, and there is serious danger of becoming too fond of it.
The issue got a serious airing Thursday as the Senate Intelligence Agency opened confirmation hearings for John O. Brennan, President Barack Obama’s nominee to head the Central Intelligence Agency. The CIA operates a fleet of drones — the Pentagon has its own — and Brennan, Obama’s top counterterrorism adviser, has played a key role in developing drone warfare policy.
Brennan was asked about revelations contained in a Department of Justice “white paper” obtained Jan. 30 by NBC News. The paper expands on the legal rationale previously offered by Obama administration officials for the targeted killings of al-Qaida leaders; the dead include at least three American citizens.
So far the administration has not made public the legal briefs that underlie the white paper, though it has now indicated it will make those briefs available to House and Senate intelligence committees.
Indeed, it wasn’t until last March that Attorney General Eric Holder officially acknowledged the Justice Department’s role in drafting the legal rationale for the drone strikes. The white paper expands on Holder’s statements.
It argues the president has the authority to authorize drone attacks in his role as commander in chief, under laws of international warfare, under the doctrine of self-defense and under the congressional authorization of use of military force against al-Qaida.
The target must pose an imminent threat against the United States (though “imminent” doesn’t necessarily mean “right away”). The target must have been approved by a senior U.S. operational commander. And the mission can be undertaken in another nation, even without that nation’s permission, if that nation refuses to act on its own.
So far, so good, if you’re willing to accept a certain amount of collateral damage. Estimates of the number of civilians killed since 2001 in drone strikes in Iraq, Afghanistan, Pakistan, Somalia and Yemen vary widely, from fewer than 1,000 to more than 10,000. Whatever the number is, it’s safe to assume that the 20-pound warhead of a Hellfire missile would kill fewer than heavy conventional munitions or even smart-bombs.
Administration officials have said every effort is made to minimize civilian casualties. But some analysts believe that drone warfare is helping fuel anti-U.S. sentiment, particularly in Pakistan.
But what about the targeted killings of U.S. citizens? “In defined circumstances,” the paper argues, “a targeted killing of a U.S. citizen who has joined al-Qaida or its associated forces would be lawful under international law.”
Someone who has gone over to the other side becomes an enemy combatant, the white paper argues, subject to the same risks as non-U.S. citizens. Here is one place where the law hasn’t caught up to drone warfare. With a drone, a native New Mexican like Anwar al-Awlaki, killed in Yemen by a Hellfire missile in September 2011, can be specifically targeted. Is this a combat death or an extra-judicial assassination in violation of the due process clauses in the Fifth and 14th amendments?
Holder, in his speech in March, suggested that due process doesn’t necessarily mean judicial due process. The white paper cites the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld. That decision granted due process rights to Guantanamo detainees, but said “due process analysis need not blink” at the realities of warfare.
Brennan offered no guidance Thursday. The congressional intelligence committees must demand it of the president. The United States needs to bring its laws, indeed, its theories of warfare, into the drone age. Right now it seems a matter of presidential whim.
Other nations are working on drones as fast as possible. It would be well for the United States to lead the way. The world expects it of us. Or at least it used to.