A fully armed MQ-9 Reaper taxis down a runway in Afghanistan
Less than a week before Farea Al-Muslimi testified on Capitol Hill in April, a missile launched from a U.S. drone struck his home village in Yemen.
Now a journalist based in Sana’a, Yemen, Al-Muslimi testified April 23 that he was “torn between this country I love and the drone above my head.” It was the first hearing the Senate Armed Services Committee held on U.S. drone policy.
“Drone strikes are the face of America to Yemenis,” he testified. “I have a personal experience of the fear they cause.”
Al-Muslimi and his villagers are part of the debate over the use of drones in targeted killings. Also at issue are the legality of such strikes and widening concerns that U.S. action is setting a dangerous precedent for when and how technologically superior nations can and should wage war.
Few dispute the legitimate use of drones for scouting and information gathering in combat zones. Unmanned aircraft of all shapes and sizes have given troops an unmistakable tactical edge in both Iraq and Afghanistan.
But using drones offensively has stirred emotions and brought to light legal concerns that distress foreign policy experts, lawmakers and some members of the American public. The process of choosing targets for drone strikes has been largely shrouded in secrecy while the Central Intelligence Agency continues to fire on militants on sovereign soil.
Sen. Richard Durbin, D-Ill., called the April 23 SASC hearing to weigh the issue and attempt to solicit transparency from the Obama administration about how it chooses targets for drone strikes. The administration declined to send a representative to the hearing. The snub riled Republicans, who worry Obama’s policy on targeted killings is so broad and vague that armed unmanned aircraft could potentially be launched against U.S. citizens on American soil.
Since President Obama took office, there have been at least 300 drone strikes inside Pakistan that have caused at least 3,000 deaths and many more casualties, Peter Bergen, director of the national security studies program at the New America Foundation, said during the hearing.
The Bureau of Investigative Journalism has counted 13 CIA drone strikes in Pakistan since Jan. 1 that killed between 50 and 100 people.
Bergen said Obama has authorized at least 47 similar attacks in Yemen that caused between 400 and 700 casualties, mostly of low-level operatives loosely tied to al-Qaida. With each authorized strike, there are fewer legitimate targets to kill, Bergen said.
“Militant leaders are not being killed in any great number,” Bergen said. “What started as a program to kill high-level al-Qaida leaders has devolved into a kind of counter-insurgency air force.”
In a May 23 speech to the National Defense University, Obama vowed drone strikes would taper off in coming months. Yet days later a Reaper strike reportedly killed seven people in Pakistan.
Strikes have also been launched against suspected Islamist militants in the African country of Mali and in the Philippines, said Rosa Brooks, a professor at the Georgetown University Law Center.
Ten years ago, the use of drones in targeted killings was occasional and restricted largely to high-value targets, Brooks said. Over the ensuing decade, armed unmanned aircraft have increasingly targeted lower-ranking and fringe al-Qaida militants in more and varied geographic locations outside the two major U.S.-led wars, Brooks said at a forum on drone policy hosted by the Cato Institute in April.
“Many targets are associated with an affiliate or an affiliate of an affiliate,” she said. “al-Shabab may not be a nice group of people, but no one would argue that they had a hand in 9/11 or that they pose an imminent threat to the United States,” she said of the Islamist militant group based in Somalia.
“When we have a technology like this that enables us to engage in targeted killing far more frequently at lower short-term risk … are we creating new terrorists faster than we can kill them?” Brooks asked, paraphrasing former Defense Secretary Donald Rumsfeld.
Retired Marine Corps Gen. James Cartwright, who now holds the Harold Brown chair in defense policy studies at the Center for Strategic and International Studies, warned that U.S. drone operations outside of active war zones was eroding the nation’s international reputation.
“My concern is that we may have ceded some of our moral high ground in this endeavor,” Cartwright testified at the SASC hearing. “Some element of transparency in the process, in decision making, and an understanding of the people of … the countries we are working in is going to be essential to regaining that moral high ground. I believe that in several areas of the world, our current drone policies have left us in a situation where we are engendering more problems than we are solving.”
The 2001 Authorization for Use of Military Force (AUMF), which was reinforced by the 2012 National Defense Authorization Act, gives the president war powers against al-Qaida, especially militants and terrorists that can be linked to the 9/11 attacks.
In defense of his authorization of drone strikes against targets he deems viable, Obama in his NDU speech challenged Congress to repeal the powers the AUMF affords his administration.
Ilya Somin, a professor at the George Mason University School of Law, echoed the concern over the secrecy of Obama’s methods for choosing targets. Targeted killing in wartime is nothing new, nor is it illegal, he told SASC members, citing the assassination of Japanese Adm. Isoroku Yamamoto during World War II as a lawful example.
But relying on other governments to detain or kill a terrorist who poses an imminent threat to the United States also carries a number of risks, he said.
“It depends on if the foreign country has a reasonable rule of law and is reasonably cooperative with us in prosecuting an enemy combatant,” Somin said. “For groups we’re at war with, we can target them at any time. We should amend the AUMF to more precisely define which groups we can legally target. It would be a mistake to ban a particular technology once we have determined that we’ve chosen the right target and that it is legal for us to strike.”
Benjamin Wittes, senior fellow and research director in public law at The Brookings Institution, said remotely piloted warplanes are unique among weapons of war because the very characteristics that make them useful also stray from public impressions of how war should be conducted. They are a weapon like any other and should be considered along with jets and ballistic missiles once a strike is deemed necessary and lawful, he said.
“There are many ways to target and kill somebody,” Wittes said at the Cato forum. “Drones are only one of them. The person is no less dead if you insert a SEAL team and kill them at point-blank range with a rifle. Instead, we should look at how and when and under what legal construct we should target individuals for killing.”
“One question is, when do you want to be doing this, if at all?” he added. “The second question is, if you want to be doing this, what is the optimal weapons system with which to do it?” he asked.
From a humanitarian point of view, unmanned aircraft are actually more discriminatory than manned aircraft or long-range ordnance. Their ability to loiter over a certain area allows for extended surveillance of a target, which makes UAVs “more lethal and more careful at the same time,” Wittes said.
Stephen Vladeck, a professor and associate dean for scholarship at American University’s Washington College of Law, voiced concerns held by many drone detractors that the technology could open the door to war where the United States would not otherwise project military might, but chooses to because an unmanned aircraft is less risky than dispatching manned jets.
“When we are the only country in the world to have the technology to carry out these operations, we might not be so worried about the consequences. We may not be so worried about things coming home to roost,” Vladeck said at the Cato forum. “But increasingly … it is a very serious concern that we make sure we are not setting a precedent pursuant to which other countries … would claim similar if not broader powers.”
“That’s not about drones specifically. It’s about the use of force on the territory of a foreign sovereign,” he added.
While some lawmakers are worried about a drone strike on an American sitting in a cafe on Main Street, U.S.A., the precedent being set overseas could lead to unilateral strikes on foreign nationals on U.S. soil, experts feared. That concern was the thrust of a marathon, 13-hour filibuster launched by Sen. Rand Paul, R-Ky., earlier in April.
In conflicts like World War II or Vietnam, there was little doubt whether there was a state of armed conflict and where it was taking place. That was the case even in recent conflicts like the civil wars in Libya and Syria, Brooks said.
In a geographically diffuse war against international terrorism by non-state actors, the ability to distinguish the boundaries of armed conflict go out the window, she said.
By using unmanned aircraft in targeted killings on the soil of a foreign sovereign, the United States is essentially declaring to the world that its military and civilian leaders choose where there is declared armed conflict, who is a combatant and which of them are imminent threats to the United States, she said.
“We also decide whether [a foreign nation] can be relied upon to capture or kill that threat without our intervention,” she said.
Nations that are actively developing robust unmanned aircraft capabilities are taking notes, experts warned. When the United States and its close allies are no longer the sole operators of offensive drone technology, American foreign policy over the last decade could be a blueprint for unilateral global oppression, they said. What developed nations could once denounce as illegal assassinations or extrajudicial killings, the U.S. government may have tacitly approved by its actions in countries like Yemen.
Brooks offered the 1976 assassination of former Chilean defense minister Orlando Letelier as an example. When Letelier was ousted by the military regime of Augusto Pinochet, he moved to the United States. Pinochet found his outspoken criticism of the Chilean junta distasteful, so he ordered Letelier’s assassination. He and his American assistant were killed when a car bomb exploded beneath their vehicle in Washington, D.C.
When the U.S. strikes unilaterally within sovereign nations, “it’s pretty hard to assume that is not going to come back to bite us,” Brooks said. “What would the Chilean government say to us today if they carried out that assassination? We just told them what to say. We have just handed every despot in the world a little playbook for explaining why it’s acceptable for them to kill dissidents in foreign countries.”Photo Credit: Air Force