IV. Drones Don't Kill People. People Kill People.
The most ardent case against drone strikes is that they kill innocents. John Brennan has argued that claims of collateral carnage are exaggerated. In June 2011, he famously declared that there had not been “a single collateral death” due to a drone strike in the previous 12 months.
Almost no one believes this. Brennan himself later amended his statement, saying that in the previous 12 months, the United States had found no “credible evidence” that any civilians had been killed in drone strikes outside Afghanistan and Iraq. (I am using the word civilians here to mean “noncombatants.”) A fair interpretation is that drones unfailingly hit their targets, and so long as the U.S. government believes its targets are all legitimate, the collateral damage is zero. But drones are only as accurate as the intelligence that guides them. Even if the machine is perfect, it’s a stretch to assume perfection in those who aim it.
For one thing, our military and intelligence agencies generously define combatant to include any military-age male in the strike zone. And local press accounts from many of the blast sites have reported dead women and children. Some of that may be propaganda, but not all of it is. No matter how precisely placed, when a 500-pound bomb or a Hellfire missile explodes, there are sometimes going to be unintended victims in the vicinity.
How many? Estimates of body counts range so widely and are so politicized that none of them is completely credible. At one extreme, anti-American propagandists regularly publish estimates that make the drone war sound borderline genocidal. These high numbers help drive the anti-drone narrative, which equates actions of the U.S. government with acts of terror. In two of the most recent Islamist terror attacks as of this writing—the Boston Marathon bombing and the beheading of a soldier in London—the perpetrators justified their killings as payback for the deaths of innocent Muslims. At the other extreme, there is Brennan’s claim of zero civilian casualties. The true numbers are unknowable.
Secrecy is a big part of the problem. The government doesn’t even acknowledge most attacks, much less release details of their aftermath. The Bureau of Investigative Journalism, a left-wing organization based in London, has made a strenuous effort, using news sources, to count bodies after CIA drone strikes. It estimates that from 2004 through the first half of 2013, 371 drone strikes in Pakistan killed between 2,564 and 3,567 people (the range covers the minimum to the maximum credible reported deaths). Of those killed, the group says, somewhere between 411 and 890—somewhere between 12 percent and 35 percent of the total—were civilians. The disparity in these figures is telling. But if we assume the worst case, and take the largest estimates of soldier and civilian fatalities, then one-quarter of those killed in drone strikes in Pakistan have been civilians.
Everyone agrees that the amount of collateral damage has dropped steeply over the past two years. The Bureau of Investigative Journalism estimates that civilian deaths from drone strikes in Pakistan fell to 12 percent of total deaths in 2011 and to less than 3 percent in 2012.
No civilian death is acceptable, of course. Each one is tragic. But any assessment of civilian deaths from drone strikes needs to be compared with the potential damage from alternative tactics. Unless we are to forgo the pursuit of al-Qaeda terrorists entirely, U.S. forces must confront them either from the air or on the ground, in some of the remotest places on Earth. As aerial attacks go, drones are far more precise than manned bombers or missiles. That narrows the choice to drone strikes or ground assaults.
Sometimes ground assaults go smoothly. Take the one that killed Osama bin Laden. It was executed by the best-trained, most-experienced soldiers in the world. Killed were bin Laden; his adult son Khalid; his primary protectors, the brothers Abu Ahmed al-Kuwaiti and Abrar al-Kuwaiti; and Abrar’s wife Bushra. Assuming Bushra qualifies as a civilian, even though she was helping to shelter the world’s most notorious terrorist, civilian deaths in the raid amounted to 20 percent of the casualties. In other words, even a near-perfect special-ops raid produced only a slight improvement over the worst estimates of those counting drone casualties. Many assaults are not that clean.
In fact, ground combat almost always kills more civilians than drone strikes do. Avery Plaw, a political scientist at the University of Massachusetts, estimates that in Pakistani ground offensives against extremists in that country’s tribal areas, 46 percent of those killed are civilians. Plaw says that ratios of civilian deaths from conventional military conflicts over the past 20 years range from 33 percent to more than 80 percent. “A fair-minded evaluation of the best data we have available suggests that the drone program compares favorably with similar operations and contemporary armed conflict more generally,” he told The New York Times.
When you consider the alternatives—even, and perhaps especially, if you are deeply concerned with sparing civilians—you are led, as Obama was, to the logic of the drone.
But don’t drone strikes violate the prohibition on assassination, Executive Order 12333? That order, signed by Ronald Reagan in 1981, grew out of revelations that the CIA had tried to kill Fidel Castro and other leftist-leaning political figures in the 1960s and ’70s. It was clearly aimed at halting political assassinations; in fact, the original order, signed in 1976 by Gerald Ford, refers specifically to such acts. Attempting to prevent acts of mass murder by a dangerous international organization may stretch the legal definition of armed conflict, but it is not the same as political assassination. Besides, executive orders are not statutes; they can be superseded by subsequent presidents. In the case of President Bush, after the attacks of September 11, Congress specifically authorized the use of lethal operations against al‑Qaeda.
When Bush branded our effort against al-Qaeda “war,” he effectively established legal protection for targeted killing. Targeted killing is a long-established practice in the context of war. According to international treaties, soldiers can be killed simply for belonging to an enemy army—whether they are actively engaged in an attack or only preparing for one, whether they are commanders or office clerks. During World War II, the United States discovered and shot down the plane carrying Admiral Isoruku Yamamoto, the commander in chief of the Japanese navy, who had been the architect of the attack on Pearl Harbor. The order to attack the plane was given by President Franklin Roosevelt.
But beyond what international treaties call “armed conflict” is “law enforcement,” and here, there are problems. The 1990 United Nations Congress on the Prevention of Crime and the Treatment of Offenders laid out basic principles for the use of force in law-enforcement operations. (The rules, although nonbinding, elaborate on what is meant by Article 6 of the International Covenant on Civil and Political Rights, to which the United States has agreed.) The pertinent passage—written more than a decade before weaponized drones—reads as follows:
Law enforcement officials shall not use firearms against persons except in self-defense or defense of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable to protect life.
Once the “war” on al-Qaeda ends, the justification for targeted killing will become tenuous. Some experts on international law say it will become simply illegal. Indeed, one basis for condemning the drone war has been that the pursuit of al‑Qaeda was never a real war in the first place.
Sir Christopher Greenwood, the British judge on the International Court of Justice, has written: “In the language of international law there is no basis for speaking of a war on al-Qaeda or any other terrorist group, for such a group cannot be a belligerent, it is merely a band of criminals, and to treat it as anything else risks distorting the law while giving that group a status which to some implies a degree of legitimacy.” Greenwood rightly observes that America’s declaration of war against al-Qaeda bolstered the group’s status worldwide. But history will not quarrel with Bush’s decision, which was unavoidable, given the national mood. Democracy reflects the will of the people. Two American presidents from different parties and with vastly different ideological outlooks have, with strong congressional support, fully embraced the notion that America is at war. In his speech at the National Defense University in May, Obama reaffirmed this approach. “America’s actions are legal,” he said. “Under domestic law and international law, the United States is at war with al-Qaeda, the Taliban, and their associated forces.” He noted that during his presidency, he has briefed congressional overseers about every drone strike. “Every strike,” he said.
Bin Laden himself certainly wasn’t confused about the matter; he held a press conference in Afghanistan in 1998 to declare jihad on the United States. Certainly the scale of al‑Qaeda’s attacks went well beyond anything previously defined as criminal. But what are the boundaries of that war? Different critics draw the lines in different places. Mary Ellen O’Connell, a law professor at the University of Notre Dame, is a determined and eloquent critic of drone strikes. She believes that while strikes in well-defined battle spaces like Iraq and Afghanistan are justified, and can limit civilian deaths, strikes in Pakistan, Yemen, Somalia, and other places amount to “extrajudicial killing,” no matter who the targets are. Such killings are outside the boundary of armed conflict, she says, and hence violate international law.
Philip Alston, a former United Nations special rapporteur on extrajudicial, summary, or arbitrary executions, concedes that al-Qaeda’s scope and menace transcend criminality, but nevertheless faults the U.S. drone program for lacking due process and transparency. He told Harper’s magazine:
[International] laws do not prohibit an intelligence agency like the CIA from carrying out targeted killings, provided it complies with the relevant international rules. Those rules require, not surprisingly when it’s a matter of being able to kill someone in a foreign country, that all such killings be legally justified, that we know the justification, and that there are effective mechanisms for investigation, prosecution, and punishment if laws are violated. The CIA’s response to these obligations has been very revealing. On the one hand, its spokespersons have confirmed the total secrecy and thus unaccountability of the program by insisting that they can neither confirm nor deny that it even exists. On the other hand, they have gone to great lengths to issue unattributable assurances, widely quoted in the media, both that there is extensive domestic accountability and that civilian casualties have been minimal. In essence, it’s a ‘you can trust us’ response, from an agency with a less than stellar track record in such matters.
President Obama has taken steps in recent months to address Alston’s concerns. He has begun transferring authority for drone strikes from the CIA to the Pentagon, which will open them up to greater congressional and public scrutiny. He has sharply limited “signature strikes,” those based on patterns of behavior rather than strict knowledge of who is being targeted. (Because most signature strikes have been used to protect American troops in Afghanistan, this category of drone attack is likely to further diminish once those forces are withdrawn.) In his May speech, he came close to embracing “the full Harold,” publicly outlining in general terms the targeting constraints drafted by Koh. He also made clear that the war on al-Qaeda will eventually end—though he stopped short of saying when. American combat troops will be gone from Afghanistan by the end of next year, but the war effort against “core al-Qaeda” will almost certainly continue at least until Ahman al Zawahiri, the fugitive Egyptian doctor who now presides over the remnants of the organization, is captured or killed.
“Outside of the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal,” Alston wrote in 2010. Mary Ellen O’Connell agrees. “Outside of a combat zone or a battlefield, the use of military force is not lawful,” she told me.
Yet this is where we seem to be headed. Obama has run his last presidential campaign, and one senses that he might cherish a legacy of ending three wars on his watch.
“Our commitment to constitutional principles has weathered every war, and every war has come to an end,” he said in his May speech. “We must define the nature and scope of this struggle, or else it will define us. We have to be mindful of James Madison’s warning that ‘no nation could preserve its freedom in the midst of continual warfare.’
The changes outlined by the president do not mean we will suddenly stop going after al-Qaeda. If the war on terror is declared over, and the 2001 Authorization for Use of Military Force (AUMF) is withdrawn, then some other legal justification for targeting al-Qaeda terrorists with drones would be necessary, and would likely be sought.
“We believe we have a domestic and international legal basis for our current efforts,” Ben Rhodes, who is Obama’s deputy national-security adviser for strategic communications, told me. “If you project into the future, there are different scenarios, you know, so they are kind of hypothetical, but one is that you might have a narrower AUMF that is a more targeted piece of legislation. A hypothetical: the Taliban is part of the AUMF now, but we could find ourselves not in hostilities with the Taliban after 2014.” In that case, the military authority to attack Taliban targets, which account for many drone strikes and most signature strikes, would be gone. Another scenario Rhodes sketched out was one in which a local terrorist group “rose to the level where we thought we needed to take direct action. You might have to go back to Congress to get a separate authorization. If we need to get authority against a new terrorist group that is emerging somewhere else in the world, we should go back to Congress and get that authorization.”
You can’t know in advance “the circumstances of taking direct action,” Rhodes said. “You may be acting to prevent an imminent attack on the United States or you may be acting in response to an attack, each of which carries its own legal basis. But you have to be accountable for whatever direct action you are taking,” rather than relying on some blanket authority to strike whomever and whenever the president chooses. “You would have to specifically define, domestically and internationally, what the basis for your action is in each instance—and by each instance, I don’t mean every strike, per se, but rather the terrorist group or the country where you are acting.”
Seeking such authorization would help draw the debate over continued drone strikes out of the shadows. Paradoxically, as the war on terror winds down, and as the number of drone strikes falls, the controversy over them may rise.
V. Come Out With Your Hands Up!
Once the pursuit of al-Qaeda is defined as “law enforcement,” ground assaults may be the only acceptable tactic under international law. A criminal must be given the opportunity to surrender, and if he refuses, efforts must be made to arrest him. Mary Ellen O’Connell believes the Abbottabad raid was an example of how things should work.
“It came as close to what we are permitted to do under international law as you can get,” she said. “John Brennan came out right after the killing and said the seals were under orders to attempt to capture bin Laden, and if he resisted or if their own lives were endangered, then they could use the force that was necessary. They did not use a drone. They did not drop a bomb. They did not fire a missile.”
Force in such operations is justified only if the suspect resists arrest—and even then, his escape is preferable to harming innocent bystanders. These are the rules that govern police, as opposed to warriors. Yet the enemies we face will not change if the war on terror ends. The worst of them—the ones we most need to stop—are determined suicidal killers and hardened fighters. Since there is no such thing as global police, any force employed would likely still come from, in most cases, American special-ops units. They are very good at what they do—but under law-enforcement rules, a lot more people, both soldiers and civilians, are likely to be killed.
It would be wise to consider how bloody such operations can be. When Obama chose the riskiest available option for getting bin Laden in Abbottabad—a special-ops raid—he did so not out of a desire to conform to international law but because that option allowed the possibility of taking bin Laden alive and, probably more important, because if bin Laden was killed in a ground assault, his death could be proved. The raid went well. But what if the seal raiding party had tripped Pakistan’s air defenses, or if it had been confronted by police or army units on the ground? American troops and planes stood ready in Afghanistan to respond if that happened. Such a clash would likely have killed many Pakistanis and Americans, and left the countries at loggerheads, if not literally at war.
There’s another example of a law-enforcement-style raid that conforms to the model that O’Connell and other drone critics prefer: the October 1993 Delta Force raid in Mogadishu, which I wrote about in the book Black Hawk Down. The objective, which was achieved, was to swoop in and arrest Omar Salad and Mohamed Hassan Awale, two top lieutenants of the outlaw clan leader Mohammed Farrah Aidid. As the arrests were being made, the raiding party of Delta Force operators and U.S. Army rangers came under heavy fire from local supporters of the clan leader. Two Black Hawk helicopters were shot down and crashed into the city. We were not officially at war with Somalia, but the ensuing firefight left 18 Americans dead and killed an estimated 500 to 1,000 Somalis—a number comparable to the total civilian deaths from all drone strikes in Pakistan from 2004 through the first half of 2013, according to the Bureau of Investigative Journalists’ estimates.
The Somalia example is an extreme one. But the battle that erupted in Mogadishu strikes me as a fair reminder of what can happen to even a very skillful raiding party. Few of the terrorists we target will go quietly. Knowing they are targets, they will surely seek out terrain hostile to an American or UN force. Choosing police action over drone strikes may feel like taking the moral high ground. But if a raid is likely to provoke a firefight, then choosing a drone shot not only might pass legal muster (UN rules allow lethal force “when strictly unavoidable in order to protect life”) but also might be the more moral choice.
The White House knows this, but it is unlikely to announce a formal end to the war against al-Qaeda anytime soon. Obama’s evolving model for counterterrorism will surely include both raids and drone strikes—and the legality of using such strikes outside the context of war remains murky.
Ben Rhodes and others on Obama’s national-security team have been thinking hard about these questions. Rhodes told me that “the threat picture” the administration is mainly concerned with has increasingly shifted from global terrorism, with al-Qaeda at its center, to “more traditional terrorism, which is localized groups with their own agendas.” Such groups “may be Islamic extremists, but they are not necessarily signing on to global jihad. A local agenda may raise the threat to embassies and diplomatic facilities and things like [the BP facility that was attacked in Algeria early this year], but it diminishes the likelihood of a complex 9/11-style attack on the homeland.”
If terrorism becomes more localized, Rhodes continued, “we have to have a legal basis and a counterterrorism policy that fits that model, rather than this massive post-9/11 edifice that we built.” This means, he said, that post-2014 counterterrorism will “take a more traditional form, with a law-enforcement lead. But this will be amplified by a U.S. capability to take direct action as necessary in a very narrowly defined set of circumstances.” What U.S. policy will be aiming for, Rhodes said, is “traditional [law-enforcement-style] counterterrorism plus a limited deployment of our drone and special-forces capabilities when it is absolutely necessary.”
To accommodate the long-term need for drone strikes, Obama is weighing a formal process for external review of the target list. This might mean appointing a military-justice panel, or a civilian review court modeled on the Foreign Intelligence Surveillance Court, which oversees requests to monitor suspected foreign spies and terrorists in the United States. But this raises thorny constitutional questions about the separation of powers—and presidents are reluctant to concede their authority to make the final call.
How should we feel about drones? Like any wartime innovation, going back to the slingshot, drones can be used badly or well. They are remarkable tools, an exceedingly clever combination of existing technologies that has vastly improved our ability to observe and to fight. They represent how America has responded to the challenge of organized, high-level, stateless terrorism—not timidly, as bin Laden famously predicted, but with courage, tenacity, and ruthless ingenuity. Improving technologies are making drones capable not just of broader and more persistent surveillance, but of greater strike precision. Mary Ellen O’Connell says, half jokingly, that there is a “sunset” on her objection to them, because drones may eventually offer more options. She said she can imagine one capable of delivering a warning—“Come out with your hands up!”—and then landing to make an arrest using handcuffs.
Obama’s efforts to mitigate the use of drones have already made a big difference in reducing the number of strikes—though critics like O’Connell say the reduction has come only grudgingly, in response to “a rising level of worldwide condemnation.” Still, Obama certainly deserves credit: it is good that drones are being used more judiciously. I told Ben Rhodes that if the president succeeds in establishing clear and careful guidelines for their use, he will make a lot of people happy, but a lot of other people mad.
“Well, no,” Rhodes said. “It’s worse than that. We will make a lot of people mad and we will not quite make people happy.”
No American president will ever pay a political price for choosing national security over world opinion, but the only right way to proceed is to make targeting decisions and strike outcomes fully public, even if after the fact. In the long run, careful adherence to the law matters more than eliminating another bad actor. Greater prudence and transparency are not just morally and legally essential, they are in our long-term interest, because the strikes themselves feed the anti-drone narrative, and inspire the kind of random, small-scale terror attacks that are bin Laden’s despicable legacy.
In our struggle against terrorist networks like al-Qaeda, the distinction between armed conflict and law enforcement matters a great deal. Terrorism embraces lawlessness. It seeks to disrupt. It targets civilians deliberately. So why restrain our response? Why subject ourselves to the rule of law? Because abiding by the law is the point—especially with a weapon like the drone. No act is more final than killing. Drones distill war to its essence. Abiding carefully by the law—man’s law, not God’s—making judgments carefully, making them transparent and subject to review, is the only way to invest them with moral authority, and the only way to clearly define the terrorist as an enemy of civilization.