Yemen's fractured tribal politics reveal the shallowness of Washington's current debate about targeted killing.
The Sheikh's son looked more like an American cowboy that a Yemeni tribesman. Wiry and weathered with a black, close-cropped beard, Abdullah wore the wry smile and haunted intensity of a leader under siege. Where other men of his station strutted about Sana'a with mirrored Ray-Bans and semiautomatic pistols, this tribal militia commander carried a battered revolver in a leather holster stained with sweat and gun oil. Abdullah and his brothers had little time for social pretence or political intrigues. Here, in the barren moonscape outside Aden, they were waging their own private war against al-Qaeda in the Arabian Peninsula.
We sipped green coffee from a thermos as Abdullah described U.S. drone strikes and the indigenous backlash against them. "It's not black and white," he explained. "In my region, the drones are hurting al-Qaeda, but there's no coordination with sheikhs at the local level." He shrugged and started at the floor, pausing to think. "We need the help," he sighed. "As leaders we can accept the drones, but America must know that our people will never accept another massacre like Majala."
Abduallah's words capture the dilemma facing decision-makers across Yemen. Cognizant of their own divisions and al-Qaeda's persistent presence, the tribal and religious leaders I interviewed last summer privately described drones strikes as a necessary evil. Yet in the same breath many recalled the December 2009 cruise missile strike on Majala, which killed forty-one innocents -- including twenty-two children and five pregnant women. Framed by this tragedy and fueled by deep suspicion of U.S. intentions, many of the Yemenis I met associated airstrikes with drone strikes, and drone strikes with civilian casualties. In their view, drones presented an irreconcilable choice between justice and security.
Similar dilemmas shape U.S. debates on drone-based targeted killing. Where White House officials describe drones as "legal, ethical, and wise," civil libertarians cast them as part of an inexorable march toward unconstitutional wars, unaccountable leaders, and unchecked executive power. Where military commanders emphasize the efficacy and necessity of targeted killings, legal scholars see looming threats to due process, human rights, and international peace. Against the backdrop of John Brennan's recent Senate confirmation hearing for CIA director, drones have become a proxy for normative battles over the War on Terrorism in much the same way that they encapsulate the frustrations shaping Yemen's Arab Spring.
These debates are as sterile as they are predictable. By recycling familiar pro- and anti-war tropes, pundits and policy makers ignore nuances in the field. By reducing liberty and security to immutable absolutes, they animate political activists with no common language and even less common ground. And by focusing on platforms rather than policies, they perpetuate a dangerous tendency to divorce the laws and instruments of war from the objectives they serve. These false dichotomies make for great headlines, but ultimately they tell us little about the principles that govern how we fight or the places where we are actually fighting.
Recent furor over the Justice Department's memorandum on targeted killings is a case in point. Although the memo focused narrowly on "a U.S. Citizen who is a senior al-Qaeda operational leader" in a foreign war zone, commentators speculated broadly about a "permanent drone war" and its implications "U.S. civilians" on the home front. Many likened targeted killings to torture, casually comparing drone strikes against belligerents found on the battlefield with the Bush Administration's decision to waterboard detainees in U.S. custody. So long as terrorism is concerned, it seems, the U.S. Government is guilty until proven innocent.
On one level, these critiques reflect growing frustration with the Global War on Terror. Despite more than a decade of enhanced surveillance at home and extended campaigns abroad, U.S. officials have never articulated clear, objective criteria distinguishing al-Qaeda and its followers from indigenous groups with more parochial motives. This approach leaves them over-reliant on intelligence from host governments. It also produces an over-inclusive target set based on the so-called "signatures" associated with terrorist activity. The costs of these oversights are evident in Yemen today, where drone strikes have mistakenly killed tribal leaders who were fighting al-Qaeda. While drones may be less risky than boots on the ground, no strategy can succeed by turning potential allies into resentful neutrals.
This insight is lost amidst the facile conflation of Bush and Obama administration policies. Torture, to be clear, is never legal. The waterboarding of detainees violates international law and undermines constitutional prohibitions against cruel and unusual punishment. Yet unlike torture, targeted killings are legal in certain circumstances -- particularly when foreign countries request U.S. assistance, when the operation occurs in a foreign warzone, and when the target is waging war on the United States and its allies. Under these conditions, the legal issue is not whether force is used, but whether that force is discriminating, proportional, and tailored to the threat.
Due process doesn't change this calculus. Although the Fifth Amendment mandates trials for terrorist suspects arrested in the United States, the U.S. Supreme Court has not extended these protections to hostile forces fighting on foreign battlefields. Nor are they likely to do so. From the Civil War to the Cold War, the federal judiciary has consistently recognized armed conflict as an inherently political act that within the domain of the political branches. As troubling as the Justice Department's characterization of "imminent threats" may be, the Constitution provides few protections for citizens that travel to foreign war zones, publicly ally with our adversaries, and actively conspire against the United States. To presume otherwise mistakes political advocacy for legal precedent.
Our preoccupation with such advocacy misses the point. Drones are instruments. They do not change the fundamental nature of war. Nor do they alter the norms governing how and when we fight. Hence, the essential question is not whether drone strikes are effective, or even whether targeted killings are legal. Instead, the issue Americans should be debating is whether our current counterterrorism strategy is wise. Even if drone strikes are lawful and effective, their consequences must ultimately be judged in political rather than legal or military terms.
This is particularly true in Yemen. In many respects, the Obama administration's emphasis on targeted counterterrorism operations represents a substantial improvement over the bloody counterinsurgency campaigns in Iraq and Afghanistan. Remote aerial warfare reduces the costs and risks of engaging our adversaries in hostile terrain. This "light footprint" approach still leaves an impression, however --particularly where covert action and collateral damage are concerned. Angered by reports of civilian casualties, and enraged by the Yemeni Government's efforts to conceal them, Yemen's Arab Spring generation views drones as prima facie evidence of a corrupt government in league with unaccountable foreign powers.
These perceptions have a direct impact on Yemen's security. To the extent that drones strikes marginalize Yemen's transitional government, they undermine efforts to convene a national dialogue, draft a new constitution, and hold parliamentary elections in 2014. To the extent that civilian casualties alienate ordinary tribesmen, they leave local militia leaders like Abdullah with few followers and ever fewer options. Viewed in this light, an overemphasis on counterterrorism operations could jeopardize the political and economic processes necessary to stabilize Yemeni society and disrupt al-Qaeda's indigenous support structures. The result is a misalignment of ends and means, rather than an inherent conflict between law and war.
The drone debate obscures this distinction. Rather than dwelling on legal precedents or weapons platforms, the real challenge is managing the unintended consequences of our current counterterrorism strategy. This requires renewed investment in Yemen's political transition. It means identifying and engaging local leaders who are fighting our adversaries on their own terms. Most importantly, it means confronting short-term security threats in a manner that contributes our long-term policy objectives. Stated simply, out strategy must defeat adversary and win the peace. Striking that balance is something that law cannot accomplish alone, and something that war will never achieve without law.