The U.N.’s special rapporteur for human rights and counterterrorism, Ben Emmerson, has announced that he is initiating an investigation of the use of drones by the United States, Great Britain and Israel to conduct deadly strikes that have reportedly caused significant collateral casualties. Emmerson and his team will examine some 25 strikes conducted in recent years for the purpose of assessing the controls the three nations have in place governing the conduct of such operations.
There is no question that unmanned aerial systems (UAS), often called remotely piloted vehicles, are transforming the conduct of modern warfare. The U.S. Air Force currently has a force of Predator and Reaper drones sufficient to conduct more than fifty continuous orbits and is on its way to buying enough of these vehicles to run as many as 80 orbits. From a few hundred hours of full motion video a month, the Air Force now produces nearly 1 million hours Hand-launched drones are now a standard part of an infantryman’s equipment. Armed Reapers have provided critical close air support for friendly forces in both Iraq and Afghanistan. The Navy is operating several different ship-based UAS, the Fire Scout and Integrator, and will soon let a contract for an unmanned carrier launched strike and surveillance system. Drones are perfect for many difficult, boring, repetitive or highly dangerous missions that once were performed by manned platforms.
It is not the military’s use of drones that is at issue. Rather, it is the role they play in the hands of other government agencies or that of the President of the United States. Spy agencies have always engaged in so called “direct action.” Remember the Bay of Pigs landing, Mossad’s campaign of targeted assassination of terrorist leaders, the KGB’s operations to eliminate dissidents and defectors and even the use by French intelligence of frogmen and limpet mines to sink the Rainbow Warrior. But the number of such operations has increased dramatically as has the death toll. According to some analyses, since 2002 the U.S. has conducted almost 500 such attacks since 2002 just in Pakistan, Yemen and Somalia, resulting in an estimated body count of over 3,000.
For the first time, civilian spy organizations have access to strategic weapons. When conducting combat operations such as air strikes, the U.S. military operates under an involved set of restrictions and guidance, including international laws such as the Geneva Conventions. When the military plans air strikes a JAG officer is always involved, ensuring that the laws of war and rules of engagement are observed. The United States and other civilized nations have prosecuted military personnel who have violated their orders or the law. Spy agencies have almost none of these controls. This was perhaps tolerable when lethal actions by the CIA, Mossad, MI5 or the KGB were relatively rare and focused on single individuals. Armed drones not only can kill large numbers of people in a single attack but could be employed against critical infrastructure targets. The U.S. military operates very large drones such as the Global Hawk which can fly halfway around the world with a payload of up to 2,000 lbs. While the military has no plans to arm its Global Hawks there is nothing inherent about the platform that would prevent another agency from doing so.
Equally disturbing are the stories from last year that President Obama personally gives the okay for these lethal attacks, apparently choosing targets from what the media called a “Kill List.” This doesn’t give me a warm and fuzzy feeling. Enforcing accountability is difficult enough when it comes to military operations and even more problematic when the CIA is involved. Should we ask the President to testify before Congress or give a sworn statement under oath every time a drone strike goes awry?
The Obama Administrations has been extremely reluctant to publicly discuss, much less defend, its drone campaign. When it has had to publicly justify its actions it has relied on two arguments. First, the Administration says that it is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks. Second, it makes the general claim that it may use force consistent with its inherent right to self-defense under international law. These arguments would suggest that the laws of war and international conventions are applicable to such strikes. But we have no way of knowing whether these restraints are in fact employed and who is involved in the decisionmaking process. Does the White House Counsel advise the President on the legality of each selection from the Kill List?
According to Spencer Ackerman in Wired magazine, Senator Ron Wyden recently sent a letter to John Brennan, President Obama’s nominee to head the CIA, in which he asked the former CIA official some pointed questions about the source of his authority to direct lethal strikes against foreigners and American citizens, the process used in deciding to understand such actions and the quality of information available in determining that a lethal strike is justified and appropriate. These are all good questions and go to the heart of the issue of the seeming absence of processes and legal structures to constrain lethal drone strikes.
I believe that the United States is at war with violent Islamic extremists conducting a Jihad against the West. We are justified in using every tool available to the U.S. government including the entire weight of the U.S. military and all covert means to defeat this threat. But this war must still be conducted under the law and with the proper oversight and safeguard. This is not the case with the White House’s use of lethal drones. Hopefully, the new U.N. inquiry will help force the Obama Administration not only to justify its actions but put in place a process for legitimizing and regularizing lethal drone strikes.
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