No Comment — October 23, 2009, 9:25 am

Rethinking the Drone Wars

Jane Mayer’s “The Predator War” in the current New Yorker (abstract here) is a must-read addressing an essential issue. I see the major question as simple: have our accountability and oversight mechanisms kept track with technological developments? The answer seems equally clear: no. Secrecy is a major reason for this failure. Congressional lethargy is another. In the sixties and seventies, Congressional heavyweights kept meticulous track of command-and-control systems relating to the use of the nation’s latest military hardware. Protocols were insisted upon and carefully scrutinized in congressional hearings. Legal principles of accountability—particularly the notion of civilian control over the use of weapons of mass destruction—were a matter of rigorous oversight. Over the last twenty years, this legacy–pursued with equal zeal by Democrats and Republicans–seems moribund. In a sense, the current attitudes bear witness to the growing irrelevance of Congress and the diminished role of legal accountability.

The steady drift away from accountability and oversight has been driven by leaders of the intelligence community and their proudly unaccountable contractors. The uniformed military, who previously played a key role in the introduction of new weapons systems and accountability protocols, have been pushed to the margins. Simply identifying these shadowy actors, which Mayer does brilliantly, goes a great distance towards illuminating the problem. It also points to one potential path of addressing it: reanchoring control of these programs in the hands of military professionals operating under well-established and deliberated guidelines.

Mayer opens her tale with a drama that unfolds in two sites, one an observation room in Langley and the other in Pakistan’s mountainous Northwest Frontier Province:

On August 5th, officials at the Central Intelligence Agency, in Langley, Virginia, watched a live video feed relaying closeup footage of one of the most wanted terrorists in Pakistan. Baitullah Mehsud, the leader of the Taliban in Pakistan, could be seen reclining on the rooftop of his father-in-law’s house, in Zanghara, a hamlet in South Waziristan. It was a hot summer night, and he was joined
outside by his wife and his uncle, a medic; the remarkably crisp images showed the uncle administering an intravenous drip
to Mehsud, who suffered from diabetes and a kidney ailment.

The video was being captured by the infrared camera of a Predator drone, a remotely controlled, unmanned plane that
had been hovering, undetected, two miles or so above the house. Pakistan’s Interior Minister, A. Rehman Malik, told me recently that Mehsud was resting on his back. Malik, using his hands to make a picture frame, explained that the Predator’s targeters could see Mehsud’s entire body, not just the top of his head. “It was a perfect picture,” Malik, who watched the videotape later, said. “We used to see James Bond movies where he talked into his shoe or his watch. We thought it was a fairy tale. But this was fact!” The image
remained just as stable when the C.I.A. remotely launched two Hell?re missiles from the Predator. Authorities watched
the ?ery blast in real time. After the dust cloud dissipated, all that remained of Mehsud was a detached torso. Eleven others died: his wife, his father-in-law, his mother-in-law, a lieutenant, and seven bodyguards.

The predator attack on Mehsud was widely viewed as a major success for the Obama Administration’s stepped-up campaign in Pakistan. Mehsud had been, as Mayer notes, public enemy number one for the struggling new Pakistani civilian government. His death was greeted as a triumph for its supporters.

Mayer’s piece focuses on the legal debate about the use of predator drones in such circumstances and the high number of civilian casualties this has created. There are, to be sure, legal rules that provide guidance on the use of missile attacks in cases like this, though the rules of international law are—notwithstanding the tendentious position adopted by some human rights advocates—clearly sufficiently flexible to permit them. Moreover, Mehsud would appear to present a nearly optimal case for such an attack. The target openly proclaimed himself an enemy of the United States, advocated attacks on U.S. military assets, and was clearly near the apex of a command-and-control mechanism for a hostile military force. He was an unmistakably legitimate target. There is, of course, the question of proportionate force and the lamentable fact of civilian casualties. The law does not provide hard and fast rules for how many innocent victims can be tolerated in a strike against a legitimate target. But his bodyguards and lieutenants were themselves also legitimate targets in the operation. Moreover, the Mehsud attack comes in the context of an ongoing war, and it occurred at a site—in South Waziristan—that is as much a central battlefield as can be identified.

More difficult questions arise when U.S. intelligence services seek to strike against adversaries located outside of a war and away from an accepted battlefield, or when strikes occur on the territory of a state that does not agree to them. In such circumstances, the deployment of a drone could be viewed as a hostile act, possibly an act of war. The attacks look increasingly like extrajudicial killings or assassinations. Is it really the case that there is no chance to capture the target? Is the local government refusing to cooperate in efforts to seize the target? Was this really a “last resort” driven by considerations of “military necessity”? When the attack occurs in the framework of what appears to be a consistent program, the questions proliferate. As my friend Gary Solis says, “Not only would we have expressed abhorrence of such a policy a few years ago; we did.” The concept of a borderless “forever war” was largely responsible for the creep that this program achieved. On the other hand, Congress’s failure to provide oversight has contributed.

Closer engagement with accountability issues shouldn’t be mistaken for hostility to the technical innovation that drones present or to their use. Drones can accomplish missions without risk of military casualties and with reduced threat to innocent civilians, if properly controlled. “Predator drones, with their superior surveillance abilities, have a better track record for accuracy than ?ghter jets, according to intelligence officials,” Mayer notes. The use of increasingly accurate weapons systems should reduce the number of innocent civilians killed and contribute to warfare that is increasingly humane. But this doesn’t mean that predator drones can be deployed in circumstances where the law would preclude the use of armed force in the first place. And it’s inappropriate to judge this entirely as a question of legality. Policy makers need to consider whether the deployment of force is humane, moral, and effective. If the use of predator drones results in large numbers of civilian casualties and produces a shift in public opinion against the Americans, then this use is probably not a very effective counter-insurgency tactic.

Mayer correctly understands that what Washington needs now is less secrecy and more public discussion of the issues that the predator program raises. Saying “no” to predator drones would not serve the nation’s security interests. But reconsidering the troubling deviations from American traditions of civilian-military control over weapons systems and accountability for their use is an imperative.

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