Drones: Legal, Ethical, and Wise?

Since the first armed drone strike in Yemen 2002, the United States has been leveraging the Authorization for the Use of Military Force Against Terrorists, signed on September 18, 2001, presumably for use in Afghanistan, to justify the use of drone warfare in numerous countries.  Drones have since been used in Yemen, Somalia, Libya, and Mali, but mostly in Pakistan, where strikes began in 2004, and accelerated in 2009; with more than 300 strikes, there have been six times more drone strikes in Pakistan under Obama than under Bush.

The justification for American drone strategy is understandable.  Considering that in 2009, the Pentagon claimed there were less than 100 Al Qaeda members in Afghanistan, and in 2010, then-CIA Director Leon Panetta claimed there were only 50-100, the idea is that if we simply kill all confirmed Al Qaeda members, our terrorism problem will be eradicated.  Wholesale decimation is very popular with neocons on the Right, although full-scale deployment of drone tactics to achieve this strategy has yet to make Obama their hero.

At the onset of the program, the detachment from battlefield consequences - undertandably inherent in killing by remote control - raised numerous considerations.  The Administration, in turn, defended their conduct in drone wars.  This month, White House Press Secretary Jay Carney called drone strikes “legal, ethical, wise,” repeating, in Orwellian fashion,  the exact same “legal, ethical, and wise” meme first used by Deputy National Security Advisor and Obama’s nominee to head the CIA, John Brennan, Obama’s nominee to head the CIA, used in April 2012.

The primary assertion here is that drone strikes are surgical and are therefore accurate.  To avoid calling collateral damage what it is, Administration lawyers have approved a terrorist kill list, as revealed by the New York Times in May 2012, which “in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.”  Therein, differentiating between terrorists and noncombatants lost importance.

This is also why there are such discrepancies in the number of civilians killed by U.S. drones. On June 29, 2012, John Brennan boldly claimed:

“For the past year there hasn’t been a single collateral death because of the exceptional proficiency, precision of the capabilities that we’ve been able to develop.”

Even by conservative estimates, this was an outright lie.  While a report by the New America Foundation found the number of civilians killed in Pakistan alone was 261-305 from 2004 to 2013, other reports put that number at 3,000+ civilians killed, with 176 of them children, and with only one in 50 killed by drone is a confirmed terrorist.

Is such a program “legal, ethical, and wise?”

Legality:

Typically, legal arguments against drone strikes focus on the lack of Due Process, and rightly so.  Historically, separation of powers has predicated the use of courts to prosecute criminality, and the Congress to prosecute war, preventing unilateral executive action without the review or constraint of  judicial review.

But another legal argument presents itself, as a recent 2012 study by Stanford and New York Universities entitled “Living Under Drones” revealed a deadly pattern colloquially known as “double tap,” in which CIA drone pilots rapidly conduct a second strike on a previous target, targeting both rescuers and funeral goers.  In one instance, a double tap strike killed a Red Cross worker.  In conjunction with the Living Under Drones study, double tap attacks were also brought to light by the @Dronestream twitter account.

These attacks raise many legal questions as to whether assassinating civilians, noncombatants (such as Red Cross workers), and children via drone violates our international humanitarian law, the Geneva Conventions (particularly the Fourth General Convention of 1949) as well as the Law of Armed Conflict, which specifically “prohibits attacks on noncombatants.”  In the past, we have tried and hung individuals for similar actions we called “war crimes.”

Of course, this is not the first time America has knowingly killed civilians in war.  Civilians were starved to death in Vicksburg, burned alive by the atomic bombs dropped on Nagasaki and Hiroshima, and killed via Tomahawk missile during the Shock and Awe campaign before our 2003 Iraq invasion.

What is allowed and what is not? In an exchange on the June 2, 2012, Up with Chris Hayes, Joshua Trevino responded to Jeremy Scahill’s claim that Obama’s drone strikes constituted murder by questioning if the killing of French civilians during the 60 days before Operation Overlord in Normandy, aka D-Day, while General Eisenhower performed “interdiction attacks against rail centers,” also constituted murder.

Such relativism is dangerous, because, by all accounts, it’s difficult to draw a corrolary between World War II and the Drone War.  While it’s true we have allowed large amounts of collateral damage in past wars, Geneva Conferences were held to address the war crimes in their wake; Conor Friedersdorf of the Atlantic writes:

If we sacrifice as much liberty to fight the War on Terrorism as we did to fight the Civil War or World War II, conflicts as close to all consuming as America has ever known, Osama bin Laden will truly have won.”

What are we willing to sacrifice, whether in terms of due process or humanitarian concerns, in our 12 year War on Terror? And where is the threshold for what is legally unacceptable with the conduct of our drones?

Ethics:

For the most part, what constitutes collateral damage and what constitutes murder is a legal question; what informs our ethics is another.  I first learned about utilitarianism, deonotology, and this Immanuel Kant fellow in an ethics class in college, so as it’s been a while, I will here borrow concise definitions from Aaron Ross Powell:

  • Act Utilitarianism: “An action is right if and only if it promotes the best consequences. … The best consequences are those in which happiness is maximized…”
  • Deontology: “An action is right if and only if it is in accordance with a correct moral rule or principle. … A correct moral rule (principle) is one that…”

Let’s consider Obama’s first known drone strike in late 2009 in Yemen which left 14 women and 21 children deadonly one of the dozens killed was identified as having strong Al Qaeda connections.  Killing 21 civilians (and 14 of them children) to kill one Al Qaeda member is an example of a utilitarian strike.  Applying deontological rationing to drone strikes would restrain the Administration in whom they could kill, i.e., “thou shalt not kill a civilian” for civilians.

Should there be deontological limits applied to civilians?  If not, what about American citizens? If protections are not given to American citizens, what if they are on American soil? Or what if they are underage?

Consider the case of Abdulrahman al-Awlaki, the 16-year old son of the American born cleric Anwar al-Awlaki, killed on October 14, 2011, two weeks after his father.  While the father was indeed involved in nefarious activities, Abdulrahman was dining outside with friends when he was assassinated, and has never been accused of wrong-doing.  An Administration official stated Abdulrahman was “in the wrong place at the wrong time,” and that “the U.S. government did not know that Mr. Awlaki’s son was there” before the airstrike was ordered, implying complicity with assassinating children that are not U.S. citizens.

This is the slipperiest of slippery slopes, as apparently, there are neither restraints nor consequences for drone assassinations. When asked at his confirmation hearing point-blank if the Administration could carry out drone strikes inside the United States,  Brennan avoided ruling them out: “This Administration has not carried out drone strikes inside the United States and has no intention of doing so.”

We know the Administration uses a “disposition matrix,” or some sort of sensitivity analysis, to determine who to kill, and intends on using it for ”at least another decade.”  Perhaps, in conjunction with judicial review, it’s time to apply some Boolean-like restraints to protect innocents in battle.

Wisdom:

If we cared nothing about the legality and/or ethics of drone strikes, and we were instead only concerned about American national security, drone strikes would also assessed be as nonsensical, as drone strikes killing children in have reportedly helped Al Qaeda “recruit thousands” due to the outrage they create.  Just this past week, a Gallup report showed Pakistani disapproval of American leadership spiked to 92 percent, from 49 percent in the Spring of 2011.

In Yemen strikes have sparked anger and sympathy for Al Qaeda; Haykal Bafana, a Yemeni lawyer, warned on Twitter in May:

“DEAR OBAMA, when a U.S. drone missile kills a child in Yemen, the father will go to war with you, guaranteed. Nothing to do with Al Qaeda.”

It is because of this resentment that the globalized Al Qaeda affiliates, not the group Bin Laden built in 1989, dies and simultaneously grows as it spreads across the Sahara Desert.  This is why we’ve killed numerous “Al Qaeda Number Two’s” in numerous countries (as reported in April 2011August 2011, June 2012, September 2012, and in January 2013).  Put simply, they will not die if we keep creating them.  Fueling, and in some cases funding, both sides of the wars we fight is no way to secure the nation for ours and future generations.

As these strikes are neither legal, ethical, wise, any further use of drones should undergo extensive review by Congress, and the following actions should be taken:

1) First, to prevent turning the homeland into a drone battlefield, Congress should repeal Sections 1021 and 1022 of the 2012 National Defense Authorization Act (NDAA).  
2) Next, any future drone strkes should undergo a review system styled after the FISA courts.  If the government needs judicial review to tap your phone without warrant, they should at least need the same to kill you.
3) Moreover, while I applaud Senator Rand Paul for wanting to restrict the “domestic” use of drones – and for requesting answers about Abdulrahman’s assassination - that won’t prevent foreign noncombatants from being killed indiscriminately.  Serious consideration should be given to the efficacy of their use overseas.  May I suggest a public congressional hearing.
4) Eventually, we should insist on the demilitarization of the CIA, as, in the past, the combination of power and secrecy led to illegal activities and corruption which the nature of man cannot resist.

As a consequence of his involvement with the drone program, John Brennan should not be confirmed as CIA Director. If anything, he should be charged with the assassination of 16-year old Abdulrahman al-Awlaki.  This gets personal for me, as my brother is a US Marine Corps Artillery Officer.  If he were to purposely kill a civilian in combat, he would be rightly charged with a war crime.  It’s time we held our public officials to the same standard we expect of our military members.

 
 


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