“Rather than sending prisoners to Gitmo, [President Obama] is taking the high road by sending them to their maker.” – Stephen Colbert
When attempting to keep their countries secure, leaders are faced with many difficult choices in combating an adversary that hides in plain sight, targets noncombatants, and has shown a propensity to sacrifice themselves in the name of a cause.
The act of assassination has historically been capable of reducing collateral damage while surgically eradicating the enemy. However, in an age where who the combatant is or how one becomes – and remains – a combatant has never been more unclear, assassination or targeted killings, walk a very thin line on the border of legality.
Drone strikes in particular are often touted as “pinpoint” or “precision” attacks. While they are comparably more accurate than most non-autonomous weapons, modest estimates of US drone attacks under the Obama administration still list that 750 of 2,900 killed have been civilians, with an additional 1,100 people injured. However, the true number of civilians killed in drone strikes is heavily disputed, as many accuse the American government of being guilty of the same numerical inconsistencies as during the Vietnam War.
Without question, the use of drones has been the most controversial tactic in the “War on Terror,” most of which have occurred under the current US administration. From 2004 to 2008 there were forty-five drone strikes in Pakistan; from 2009 to June 2012, there have been 255, with over 200 strikes hitting the region of Waziristan alone. The CIA has also extended its strikes to regions in eastern Africa such as Yemen and Somalia. Currently, at least a dozen strikes have occurred in Yemen, one of which killed US-muslim cleric and known al-Qaeda recruiter, Anwar al-Awlaki. Additionally, recent leaks note that the US is developing drone bases in both Ethiopia and the Seychelles.
The current conventions of war state that soldiers identify one another by uniforms or insignia; terrorists, however, do not afford their adversaries the same luxury. In his book, Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict, Dr. Michael L. Gross suggests that when non-uniformed combatants, “fight as part of either organization, they are first combatants, subject to lethal force. When they lay down their arms, they enjoy the rights of any criminal suspect.” By manipulating the notion of this “faceless” enemy, the Obama administration has set a dangerous precedent under the claim of self-defence. Law Scholar, Philip Aston states, “the Congressional committees, have, as far as anyone knows, never exercised oversight in any specific way in relation to these killings,” and that claiming self defence in response to September 11th is a manipulation of the international laws governing conflict. This manipulation operates in conjunction with the obvious loophole that would allow the US to use that force against any target at any time.
In Torture, Assassination, and Blackmail Dr. Gross differentiates the often-blurred lines between war and law enforcement and their separate paths governing lethal force, “War permits combatants to use lethal forces against enemy soldiers with relatively few restrictions. Law enforcement, on the other hand, permits police officers to employ lethal forces against suspected criminals but remains tightly circumscribed. Police officers may kill in self-defence in unusually threatening and dangerous circumstances, but they may not otherwise harm a criminal in the absence of due process.” The concept of “due process” is non-existent in the current drone offensive by the American government, because those responsible for signing off on the attacks operate along outdated laws that do not apply.
Harvard Law Professor, Philip Heymann and lecturer in public policy, Juliette Kayyem developed a policy that limited targeted killings to “situations in which it is necessary to prevent a greater, reasonably imminent harm or in defence against a reasonably imminent threat to the lives of the targets of the planned terrorist attack.” Given that there is no regulatory body to determine when this “imminent threat” is over, this carte blanche serves as an indicator that laws are not scaling with the development of technology, and this lack of legal oversight is fine for those in control. If all perceived threats are always classified as combatants in the “war” on terror, there is no requirement to detain, question, and try them.
Guerillas vs. Terrorists
While discussing the location of where to try Khalid Sheikh Mohammed, President Obama read aloud the sentencing transcript of the civilian criminal trial of Richard Reid, the “shoe bomber,” who would be sentenced to life in prison in 2003. Reid stated, that “I am at war with your country,” to which Judge William, replied: “There is all too much war talk here… you are not an enemy combatant. You are a terrorist. You are not a soldier in any way. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature… So war talk is way out of the line in this court…”
If those who are responsible for enforcing the laws of the state battling terrorism disagree with the notion that all terrorists are combatants, how can the American government overlook such a polarizing view?
During the American Civil War, Francis Lieber brought the Southern rebels under the umbrella of the law. This contribution to the laws of war asserted that despite the intent to kill his enemy, an enemy combatant is not considered a criminal, and all opposition forces enjoy their presumed innocence. As Dr. Gross concludes, “Unless they have committed war crimes, they are free to go home when hostilities end.” Which begs the question, in a seemingly perpetual “war,” who determines when the fighting is finished? Is it realistic to believe that this war will end when it grants so much liberty to one side? What may disable the concept of the legality of conflict is that the Obama administration has deliberately named targets, and therefore has assigned some semblance of guilt. If we have no distinct definition of when anyone associated with al-Qaeda is finished fighting, the use of drones are, by definition, legal. Conversely, however, in a war against a faceless foe, naming combatants has been the most effective way of attributing affiliation in the absence of a uniform. Therefore, the naming of a target in the war on terror does not imply “outlaw” in the same way it might have a century before.
Professor Gross points out that, “un-uniformed combatants can change status almost at will and, as a result, enjoy a unique advantage […], off the battlefield they hide their arms and seemingly revert to noncombatant status. Without uniforms of insignia, it is impossible to identify un-uniformed militants as combatants.” If this example is valid, one could make the case that the use of drones as a means of killing – by definition – enemy soldiers, is completely justifiable and would not require nearly as much oversight. However, under the current set of laws governing conflict and the ambiguities surrounding targeted killings in the age of terror, there is much evidence to purport that these actions may be illegal.
Uniform vs. List
By definition, war is not a fight that ends when one side annihilates the other. Officials within the Obama administration have met consistently to determine who is placed on the “kill list;” a list that, if possible, one might look to avoid being on. With no clear direction, virtually no consideration has been directed towards how this list will end. Will it end once the al-Qaeda custodial staff makes it to number two or three? Time will tell.
In addition to the named strikes on Obama’s kill list, the administration has also used “signature strikes” that target and kill groups of men that have not yet been identified as – but appear to be – militants or combatants. In the context of a raging war, one cannot always be entirely sure of the personal identity of his enemy. The use of this principle outside the battlefield, however, represents a large dilemma, as it is extremely difficult to determine whether an “enemy” is engaging in hostile military action or not. Therefore, we must adress another ambiguity surrounding this issue: where does the battlefield end? Does it end? Given that President Obama personally signs off on drone strikes as a means of oversight, what criteria does the leader of the free world use to substantiate these actions? Everyone makes mistakes; no world leader is immune to being at fault occasionally. In the case of drones, however, everything is final sale.
War. (Huhh!) What is it good for?
President Obama has insisted that his authority regarding the use of lethal force is limited by statutes, the constitution of international law, including the laws of war. His administration has justified its use of drones under the Authorization to Use Military Force, or as an act of self defence, when “(1) it identifies an individual who is part of al-Qaeda, the Taliban, or associated forces; (2) the individual poses an imminent threat to American interests at home or abroad; and (3) his capture is infeasible.” However, the assumption that terrorists are opportunists and will attack when they see fit suggests that a threat is, technically, always imminent. If a threat is consistently imminent, extrajudicial assassination suddenly becomes self-defence. Self-defence, however, is normally reserved as a last resort effort. As David Cole of The New York Review of Books stated, “absent of a truly imminent attack, one can – and should – wait, as even if the capture is infeasible now, it may become feasible later. Without imminence, killing is not truly the last resort.” Amidst the wide lack of clarity regarding the use of drones lies the question: Could all 255 drone strikes in the last three years possibly have been in self-defence of an imminent threat? What criteria determines this?
Changing Our Autonomous Tune
When considering the effectiveness and the morality of drone strikes, we must consider the repercussions beyond merely adding a check mark to a list. Empirical evidence suggests that targeted killings do result in more terror bombings, as seen in Israel’s targeted killing campaign during the second intifada, and as Gross states, “while researchers do not agree about whether civilian casualties increase or decrease following targeted killings, many are convinced that targeted killings increase the motivation of terrorists to respond, as well as incite sympathetic notions from the surrounding public, often resulting in recruitment.” The United States must look historically to when the Soviets entered Afghanistan and how their adversary was larger and more unified when they left than when they arrived. Reciprocity is often the name of the game in the age of terror; should insurgents achieve the means to respond in a similar manner, as Dr. Gross concludes, “states fielding conventional forces might then find cause to desist and restore the convention that forbids target killing.” One can only hope that it does not come to that. Perhaps in order to diminish the lack of transparency surrounding drone strikes by the US, we must consider that the drone initiative falls under the CIA’s mandate, not the military’s. It must be noted that the intention of this piece is not to suggest that drones are ineffective or have no place in the war on terror, but simply, that applying laws that are hundreds of years old to a rapidly advancing concept is highly impractical. More importantly, it gives the impression of deliberate legal manipulation.