drones

The preliminary narrative surrounding the Justice Department’s white paper on targeted killing obtained by NBC News is marked by breathless consternation over the leeway it provides to administration officials.

The American Civil Liberties Union (ACLU) has described the memo as “a chilling document” and decried “the irresponsible extravagance” of the government’s claim to lawfully engage in the extrajudicial killing of American citizens. Legal scholars have panned the analysis as giving the White House cover to act as “judge, jury, and executioner.”

The document, however, is less chilling than confused. It is the work not of sanguinary enablers, but of constitutional lawyers who appear to lack familiarity with the laws of war.

The white paper is a bundle of contradictions. It asserts that the United States is in an armed conflict with al Qaeda and its associates, and that this armed conflict follows the enemy wherever it sets up a base of operations. In so doing, the memo explicitly rejects the argument advanced by some critics that the wartime norms enabling premeditated lethality only apply to “hot” conflict zones like Afghanistan.

If targeted killings are conducted in the context of armed conflict, then their pursuance is regulated by the laws of war. This body of law sanctions the acts of destruction inherent to war, but seeks to mitigate their worst excesses and consequences. As such, force must be directed at military objectives, exclude civilian targets, avoid excessive collateral damage, and prevent unnecessary suffering.

Under the laws of war, legitimate targets can be subjected to deadly force at any time and place. George Washington did not have to awaken the Hessians from their Christmas slumber and give them fair warning before his ambush at Trenton.

Moreover, while civilians must be spared from direct attack, they can render themselves lawful objects of lethal operations “for such time as they take a direct part in hostilities.” Through this mechanism, a nominal civilian may negate his protected status by virtue of his own hostile actions. The nationality of such an individual is irrelevant. An American citizen setting booby traps for the Viet Cong would surely have found himself in the crosshairs of an American sniper.

The laws of war thus provide the legal architecture for wartime conduct, but the white paper manufactures uncertainty by introducing concepts foreign to this area of jurisprudence.

For example, the memo requires that the proposed target pose “an imminent threat of violent attack against the United States,” even though imminence plays no role in the legal framework governing the conduct of hostilities. On the contrary, imminence is a concept drawn from the separate body of law regulating when a state may resort to force in the first place, particularly with respect to invoking the right of national self-defense. Since the memo presumes a pre-existing state of armed conflict with al Qaeda and its associated groups, the discussion of imminence is misplaced.

In addition, the memo mandates that capture be deemed infeasible before resorting to fatal attack. This requirement does not comport with wartime standards, wherein enemies wield lethal force against one another as a matter of course. Rather, it is reminiscent of the rules for law enforcement, which direct police officers to arrest suspects and only resort to deadly weaponry as a last resort.

The problem with the white paper’s reasoning is that it invites the very outcry that the release of the document has in fact provoked. By trying to fit important doctrines such as imminence and feasibility of capture into inappropriate contexts, the memo ends up contorting them beyond recognition.

For instance, the memo’s drafters endorse “a broader concept of imminence” which does not require “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” The ACLU cannot be blamed for countering that such verbal gymnastics threaten to “redefine the word imminence in a way that deprives the word of its ordinary meaning.” It is, as an ACLU attorney said, “the language of limits—but without any real restrictions.”

Most significantly, such confused logic and conflicting rhetoric run the risk of merely whetting the appetite of the nation’s critics, who deny the existence of a transnational armed conflict with al Qaeda-linked groups and contest the legality of most, if not all, targeted killings on that basis. U.S. inconsistency regarding the legal justifications for its counterterrorism programs undermines its ability to oppose such claims.

If U.S. officials have decided that drone strikes are good policy, and if their lawyers have determined they are being carried out in the context of an armed conflict, then the operations in question are governed by the laws of war. Sometimes the simplest answer is also the best one.

The relatively recent New York Times article on President Obama’s “Kill List” (and other similar articles here and here along with the strike on Al-Qaeda’s former second-in-command) highlights not just a moral conundrum for the commander-in-chief but a strategy that if enacted by itself may cause more harm than good.  What’s worse, the United States has learned that this approach is self-defeating at the operational level in Vietnam, Iraq, and Afghanistan.  A “kill list” is little different than a “body count” strategy—kill enough of them, and the threat goes away.  However, as noted in the article, the kill list which includes individuals from a number of states (including the United States) never gets shorter, the names and faces are simply replaced. 

More recently, in Iraq and Afghanistan, our military forces recognized that such kinetic or direct action meant little without more robust political, economic, and local security development efforts.  For specific purposes, drone strikes are tactically useful.  They can remove key individuals from the tactical, operational, and planning roles they filled which weakens the overall capabilities of the adversary.  But, like a “body count” strategy, success cannot be measured by the number of individuals killed—direct strikes must be part of a comprehensive approach to be truly effective in counterinsurgency operations. As recent gains have demonstrated, achieving the overall goals of defeating an insurgency requires that kinetic operations support the more mundane but ultimately more important political and economic operations along with the development of local security capabilities. That is the best way to achieve stability and security.  Make no mistake, kinetic operations are a key part of an overall successful operation.  But, they are just that -- a part of an overall successful operation. 

Using drone strikes in countries in which we do not have the same level of stability and support activities as we have in Iraq and Afghanistan is where the dilemma lies.  The assumption, though, is that the benefit of killing a key individual outweighs the animosity generated within the local population.  We cannot forget that there is always some degree of animosity generated from these operations.  Guilty as well as innocent people are killed.  Sovereignty is violated.  Honor is trampled.  In both Iraq and Afghanistan, difficult decisions have been made on the benefits of kinetic operations versus the negative repercussions generated.  Winning the battle cannot—and should not—be traded for winning the war.

The working “guess” in conducting drone strikes in Yemen, Pakistan, and other countries is that the benefits to national security policy outweigh the negative feelings and animosity generated by such strikes.  But is this correct?  Can kinetic operations without political, economic, and local security development operations be more effective on a strategic level than on the operational and tactical levels?  And really how dangerous is this indignation and ire that is generated towards the United States?  Drawing the causal link between a drone strike in Pakistan and an attempted bombing in the United States is, for all intents and purposes, impossible.  A man whose cousin was killed in an airstrike five years ago may not become the next terrorist mastermind, but he may be much less likely to tell foreign or local security forces that such a person is living in the same area.   To paraphrase Mao Zedong—who compared insurgents to fish and the population that supported them to water—even if our actions might not be generating more fish, they are still generating more water.     

The number of Al Qaeda members killed by such activities, though, is hard to ignore.  According to Bill Roggio in his blog Long War Journal, “2,300 leaders and operatives from Taliban, Al Qaeda, and allied extremist groups [have been] killed and 138 civilians [have been] killed” in Pakistan in 300 drone strikes since 2006.  Any civilian casualty is unacceptable, but removing a couple of thousand individuals who could potentially do harm to Americans and further destabilize the Afghan government seems to be a step forward in achieving our strategic goals.  If Mr. Roggio’s numbers are accurate, this is strong evidence in support of drone strikes. 

But even given these numbers, I am not sure how kinetic operations without the other non-kinetic activities would be more effective at the strategic level. We may believe that a comparatively small number of drone strikes in Yemen versus a large number of drone strikes in Afghanistan generate relatively less blowback, but in today’s internet and strategic communication reality this is not necessarily the case.  One drone strike magnified through the internet a thousand-fold may be just as detrimental to our overall goals as a hundred drone strikes in an analog world.  Detractors may say that such strategic communication really does not matter, even though we give lip service to its importance; removing terrorists from the battlefield matters above all else.  Such may be true.  Even if we wanted to support kinetic operations with political and economic operations, the scale would probably make such actions impossible given the lives, money, and time spent just in Iraq and Afghanistan.  We must make a frank assessment of the degree to which these strikes support our overall strategic goals when they are conducted without the full implementation of other necessary activities.    

So where does that leave us?  Stuck between bad options, it seems.  Politics demands that we “do something” to fight terrorist organizations, but that “something” may harm our overall goals.  Drone strikes may be part of an answer, but they are not the answer.