“Do we want to live in a world where the U.S.’s justification for killing is so infinitely malleable?”
– Rosa Brooks, Professor of Law at Georgetown University
Drones (also known as remotely piloted aircrafts) are the warfare of the 21st century. They make it possible for an American soldier, sitting comfortably at the Haddock Air Field Base in New York, to targeted individual in Afghanistan, 7,000 miles away. This capacity to engage in warfare without putting boots on the ground has generated significant debate, a debate which recently took place at the United States Senate.
On June 23rd 2013, the United States Senate Judiciary Committee held a hearing to which legal, public policy, and military officials were asked to testify regarding the potential constitutional and counterterrorism implications of using drones in targeted killings. As we continue to contemplate the use of drones, there are four main questions that should be considered.
Are Drones Inherently Bad?
Drones are a tool of warfare, just as missiles, guns, swords, and cannons are tools of warfare. It is a mechanism of force, a means of eliminating an adversarial target. What does differentiate the use of drones from other tools of war is that they are operated remotely, causing some to believe that they are inherently bad. In reality, however, the use of drones requires the highest level of scrutiny; there are certain criteria that need to be met before a drone attack can be launched. Moreover, after the attack has been launched, it can be aborted until the very last second. Yes, capture mission might be ideal; however, when taking into consideration the high opportunity costs of such missions, from military standpoint, the use of drones is a better option.
From a legal standpoint, drones do not create any new rule of law issues in the traditional battlefield. They are well within the scope of international law. Ilyam Somin, Professor of Law at George Mason University stated, “[the] means doesn’t matter so long you have the target right.” In saying this, he calls attention to the protocol that bridges the gap between suspect and launching of an attack. Once the appropriate steps have been taken to determine that an individual is a legitimate threat and therefore a legitimate target, the means of attack becomes irrelevant, except in terms of opportunity costs.
Who Can Become the Target of a Drone Killing?
Traditionally, drone attacks have been authorized under the Authorization for the Use of Military Force (AUMF) joint-resolution passed by the United States Congress in 2001. The AUMF gives the President the authority to use all ‘necessary and appropriate’ force against those individuals who ‘planned, authorized, committed, or aided’ the September 11th attacks. This question recently took on another dimension, when it was asked if Americans can be targeted by US drones, and if this answer is different depending on whether the American is on US soil or on foreign soil.
Senator Cruz set out four criteria to keep in the consideration of a drone strike: is the individual a terrorist target?, where is their geographic location?, are they active in a foreign hostile force?, and is there an imminent threat?
The question here is not really about citizenship but more about the capacity of the individual to be apprehended and captured. If the individual is a terrorist target, his active in a foreign hostile force, and is an imminent threat, then yes, they could be drone attack. However, a drone attack should be the last resort, not the de facto action. If the individual can be apprehended and captured, without the use of drones, this is ideal. By this logic, an American citizen on American soil would not be subject to a drone strike, as the United States has the police and law enforcement capacity to apprehend, detain, and try the person in question. It is by this same logic that al-Qaeda affiliates in the mountains of Pakistan – who are difficult to reach via a deployment mission and where the government does not have the capacity/willingness to apprehend and detain these individuals – are subject to drone attacks. Thus, the nationality of an individual is not the primary determinate in the decision use of drones, but rather one’s criminality and the capacity for him or her to be apprehended determines the employment of drones.
When Can Drones be Employed?
The ambiguity in the decision to employ the use of drones is threefold: ambiguity in the legal framework governing the use of drones, ambiguity of the terminology, and ambiguity the determination of war. Each of these make it difficult to develop a clear understanding as to when drones can be employed as a mechanism for targeted killings.
As stated above, the AUFM provides the legal framework uses to justify the employment of drones. However, it is limited in scope to those individuals who carried out the 9/11 attacks. At this point, almost 12 years after the 9/11 attack and with Bin Laden having been killed, can it really be argued that the perpetrators of 9/11 are still the targets? The targets have largely remained Al-Qaeda affiliates, but to say that they were actively involved in the 9//11 attacks might be an unwarranted exaggeration. If this framework is to be the justification for the targeted killings in the future, it needs to be amended to reflect the present day situation: the war on terror not a targeting of 9/11 perpetrators.
The AUFM uses the term ‘imminent threat’ to describe those who can become targets. This term, however, is largely subjective. Historically, the term imminent threat has come to mean that if one does not act, the target will carry out an attack against. This is also known as -1 stage, with 0 being the launch of the attack, and -1 being the moment just before the attack is launched. It is this principle that governed the Bush Doctrine of Preemption. This raises the following questions: can someone over 7,000 kilometers away, hiding in the mountains be considered an imminent threat? What are the criteria to determine an individual is an imminent threat and thus a legitimate target? Without definition this term can be used very loosely to justify the any target killing; thus, the development of accountability measure becomes tremendously important (see below).
There is also difficulty in determining the state of war, and thus the legality of an attack. Within the context of war, the concept of imminent threat becomes void and the targeting of adversarial combatants is supported by international law. In peacetime, however, there is a system of processes that determines the use of force. A police officer in the United States, for example, has a set of criteria that he or she must meet before he or she can employ the use of force against a suspect. The problem with ‘war on terror’ and the targeted killing of Al Qaeda leaders is that it is not a formal war as the United States never formally declared war on Afghanistan. This makes the definition of war ambiguous and the determination of targeted killing within the traditional legal framework all the more difficulty. Once again, this calls attention to the need to develop transparency and accountability mechanisms for this process of determination.
What Mechanisms are Necessary to Ensure Transparency and Accountability?
Presently, the decision as to who can be the target of an attack is made by a very small group of people under a framework that is ambiguous at best. This is a slippery slope. Without transparency and accountability mechanisms, how can it be determined that only legitimate threats are targeted and how can those who make mistakes be held accountable for their actions?
At the hearing, it was suggested that a court system be developed with the function of vetting potential targets to ensure that they are legitimate threats and can be rightful targeted under a predetermined framework. This would allow for a level of transparency in the process, expand the number of people involved in the decision-making process, and legitimize the process of targeted killing as a whole. Such a court, however, would need to be front-ended. That is to say, the court should have the capacity to give the okay for a potential target to be targeted, but the ‘go’ order should remain in the ranks of the military. Due to the checks within the military and the degree of certitude needed for an operation to be given the ‘go’ order, when the stars align and the attack can be launched against a target, waiting for court approval could result in a loss of the target.
Furthermore, in dealing with targeted killings, there needs to be accountability mechanisms. Although the number of civilian casualties from the use of drones has significantly decreased in recent years, these cannot be completely eliminated. In the case of civilian casualties resulting from the use of drone, there needs to be a system of accountability, a capacity of holding individuals responsible for the harm of civilians. Moreover, there should be a process to make amends to harmful action against civilian population, a recognition of their suffering and an effort to mitigate future suffering. Civilians are not the targets of war, by rather the innocent bystanders. When their protection status under international law is violated, be it intentional or accidental, there need to recognition and accountability for these casualties. With accountability mechanisms and without making amends to civilians harmed in conflict, we risk the inflation of anti-American attitudes. Rather than work against a country as whole, we should seek to work against criminals and with the governments of a given country whenever possible. And if accidental harm is caused to civilians, be it in Yemen, Somalia, Pakistan, or elsewhere, amends should be promptly made.