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Dean Harold Koh recently offered a spirited defense of the Obama Administration’s heavy reliance on Predator drones in the course of speech at the American Society of International Law. “There is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict,” he said. “Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.” Koh’s legal analysis is certainly correct as a matter of traditional law-of-war doctrine, particularly as understood in the United States. Moreover, he’s to be congratulated for directly addressing the legal questions surrounding drone warfare. The U.S. government has been quiet on this topic for too long, apparently as part of a strategy to keep the use of drones secret. But drone warfare is America’s worst-kept secret. The use of drones is too public, too obvious, and too essential a part of the current military effort to justify the policy silence. In fact, it’s time for a more rigorous debate about drones and the issues they raise.
While I don’t disagree with any of Koh’s comments on drones, I am concerned that he goes after straw men and neglects the big legal policy issues I see. In my view, there are two major problems with Obama-era drone warfare, which in general looks like Bush-era drone warfare on steroids.
First, as applied on the battlefield along the historic Durand Line, the current campaign can’t be reconciled with the agreed premises for the separation of military and intelligence community activities in the National Security Act of 1947. That marked the launching point for the CIA, and it proceeded from the recognition that the agency should be an essentially civilian operation. It would have the right to use lethal force in certain settings, of course, and it would even have limited paramilitary capabilities, but its essential function would be intelligence gathering and analysis, and it would be distinguished from military operations, which would be in the hands of the Department of Defense. The current drone-warfare program marks the first time in U.S. history that a state-of-the-art, cutting-edge weapons system has been placed in the hands of the CIA, marking the continued evolution of the CIA as a paramilitary force with advanced tactical weaponry. Moreover, this occurred without the sort of rigorous policy discussion involving Congress and the entire national-security community that should have occurred.
There are two further aggravating considerations. The first is that the claims of secrecy surrounding these operations are risible. For all its problems, Pakistan is a democratic state with an active press. You cannot operate a program that rains death from the sky in such an environment without detection; it’s simply too public. Moreover, the drone wars are attracting media attention around the world precisely because they are viewed as the harbinger of a new kind of warfare. There is an entirely justifiable sense that we are watching the future of warfare unfold in the skies over the Afghanistan-Pakistan border area. Keeping the rationale and rules for this program in the dark is therefore a self-defeating proposition.
Next, the CIA is itself a civilian agency, not a military force accorded privileged combatant status under the Geneva Conventions. Moreover, the drone program has been developed, rolled out and implemented with exceptionally heavy reliance on civilian contractors. Not only did contractors design and fabricate the drones, they also play the key operational role in maintaining the drones, in arming and piloting them. The finger behind the trigger that releases death on the villages of North Waziristan is likely as not that of a civilian contractor. Moreover, the United States is now relying heavily on at least six private security contracting firms to do on-the-ground work in the Afghanistan-Pakistan border area, much of it inside of Pakistan’s Northwest Frontier Province. These civilian contractors are collecting information used to guide the drones to their strikes; they serve as the “eyes” of the drone force. They are usurping a traditional core military reconaissance function.
All of this is occurring at the same time that the United States, as a matter of legal policy, denounces prisoners taken in the current hostilities as “unlawful” or “unprivileged” combatants and presses charges against them for using lethal force. But private security contractors and CIA operatives are every bit as “unlawful” and “unprivileged” under the laws of war. America’s posture on this issue is shamefully hypocritical, and needlessly so. American law and doctrine provide the correct answers. They just need to be remembered. Indeed, the segregation between intelligence and military functions envisioned in 1947 was driven by precisely this policy concern about training to and compliance with the laws of armed conflict, a fact that seems now largely forgotten. The CIA should not be running drone strikes in a combat theater, and civilian contractors need to be removed from the operation of drones outfitted with lethal weaponry. The current operations constitute a serious distortion of existing command-and-control doctrines surrounding military weapons systems. As a weapons system, the drones must be committed to the uniformed military, which should use the drones following well-established protocols covering military operations.
My second major concern goes to the power of example that the United States is now setting with respect to the use of drones away from an acknowledged battlefield, especially in connection with targeted killings. No weapons system remains indefinitely the province of a single power. Drone technology is particularly striking in this regard, because it is not really all that sophisticated. It seems clear that other powers have this technology–Israel and Iran have each been reported to be working with it, Russia and China could obviously do so easily if they desired, and the same is probably true for Britain, France, and Germany, not to mention Japan and Taiwan, where many of the cutting-edge breakthroughs in robotics actually occur. The way America uses this technology is therefore effectively setting the rules for others. Put another way, if it’s lawful for America to employ a drone to take out an enemy in the desert of Yemen, on the coast of Somalia, in a village in Sudan or Mauretania, then it would be just as lawful for Russia, or China–or, for that matter, for Israel or Iran. What kind of world is this choice then creating? Doesn’t it invariably lead us closer to the situation in which a targeted killing will be carried out in a major metropolis of Europe or East Asia, or even the United States? And doesn’t that move us in the direction of a dark and increasingly lawless world?
This is not idle speculation. The choices the United States has made are being studied very closely in capitals around the world. In Russia, for instance, national-security analysts have noted the American drone strikes with a measure of approbation, because they see such strikes as justifying lethal countermeasures of their own against perceived terrorist enemies. A number of enemies of the Russian government who were critical of policies or actions connected with the Second Chechen War have recently met violent death, often after Russian authorities linked them to Chechen terrorist groups. The Polonium poisoning of Aleksandr Litvinenko in London, for instance, or the assassination of Umar Israilov in Vienna, which Austrian prosecutors linked earlier this week to a Putin-protégé, the president of Chechnya, are two examples that suggest that Europe may have been cleared as a theater for targeted killings by a great power. The 2004 killing of former Chechen President Zelimkhan in Qatar is an example of another Russian targeted killing in the Gulf. The recent likely Israeli assassination of Mahmoud al-Mabhouh in Dubai is another instance. Targeted killings of this sort have always been with us, of course, but with the Bush-era “War on Terror” they are making a strong comeback and are gaining in claims of legitimacy and legality. The drone technology promises to take targeted killings to a whole new level.
My point here is a simple one. The United States cannot assume exclusivity in this technology, and how it uses the technology will guide others. The United States has to decide now whether it wants to legitimize a broader right of sovereign states to assassinate their enemies using drones. The consequence of such a step to the world as a whole will be severe. This also points to the danger of the United States using drones for targeted killings and keeping silent about the process, which invites the view that the practice involves an arbitrary and capricious use of power. If the United States elects to continue on its current path, it also owes the world a clear accounting for its use of drones as a vehicle for targeted killings. What rules has it adopted to guide its decisions? What evidence does it have showing that the victim was a legitimate target? And when does it agree that other states could make similar use of this technology? The United States has a choice between continuing the go-it-alone posture of the past years or assuming a mantle of leadership, under which it recognizes that its own conduct will set the standards for others.
Unlike Dean Koh, I can’t embrace the introduction of this technology as something altogether fortunate and humane. As with most new weapons systems, it offers its masters new opportunities, but it also challenges them to be ethical and thoughtful about its use. And the United States is clearly falling short on this challenge.
Remarks delivered at New York University Law School Center on Law and Security’s Seventh Annual Global Security Forum, May 1, 2010.
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