Has America’s Drone Policy Really Changed in the Last Year?
It’s been nearly a year since Obama outlined America’s new drone policy. Last May, he outlined stricter rules and regulations for drones, which have been used to target suspected militants in Pakistan, Yemen, Afghanistan, and other countries. Critics had blamed these drone strikes for high numbers of civilian casualties.
Under the new policy, the Defense Department, not the CIA carries out drone attacks, and only in established conflict zones. However, the policy that governs these assassinations is classified – although Obama insisted that his administration would only ever launch a drone strike against any suspect to stop a planned attack, when it was not possible to capture a suspect, and when there was “near certainty” that civilians would not be injured or killed.
Yet, the drone attacks continue and critics say that Obama isn’t carrying out his own policy outlined in May. The Bureau of Investigative Journalism estimates unmanned aerial vehicles have killed between 2,296 and 3,718 people, as many as 957 of them civilians.
In fact, the drone war has increased so much in the last few years that there is a manning shortage for drone pilots. A recent government report also said that these drone operators are not receiving adequate training, which may cause additional civilian casualties in the future.
In December 2013, a drone strike on a wedding procession in Yemen raised questions amongst human rights groups. The December 12th attack killed 12 men and wounded at least 15 other people, including the bride. US and Yemeni officials said the dead were members of the armed group Al-Qaeda in the Arabian Peninsula (AQAP), but witnesses and relatives told Human Rights Watch the casualties were civilians. This was in direct conflict with Obama’s statement that US policy requires “near-certainty” that no civilians will be harmed in targeted attacks.
In February, the European Union, with an overwhelming vote of 534-49, passed a resolution calling on EU Member States to “oppose and ban the practice of extrajudicial targeted killings” and demanding that EU member states “do not perpetrate unlawful targeted killings or facilitate such killings by other states.” This resolution was designed to pressure individual European nations to stop their own production and/or use of weaponized drones (especially the UK, Germany, Italy and France), and to stop their collaboration with the US drone program.
On February 13, the World Council of Churches–the largest coalition of Christian churches, came out in opposition to the use of armed drones. The Council said that the use of armed drones poses a “serious threat to humanity” and condemned, in particular, US drone strikes in Pakistan.
The continued use of drones led the UN Human Rights Council to issue a report a few weeks ago that asked the administration to review its drone policy and reveal how it picked its targets. The report said the United States should give more information on how it decided someone was enough of an “imminent threat” to be targeted in covert operations in Pakistan, Afghanistan, Yemen and Somalia and other countries. It should “revisit its position regarding legal justifications for the use of deadly force through drone attacks,” investigate any abuses and compensate victims’ families, the committee added in its conclusions.
There is a push for the UN to review drone warfare policy. Pakistan is trying to pass a resolution in the council that would mandate an impartial investigation into U.S. drone strikes there that may have violated human rights, and the council had its third discussion about the topic on March 19. The resolution would also ensure a more accurate record of death totals from those attacks, according to “Foreign Policy.” The U.S., which claims the strikes are necessary to thwart potential terrorists, says the council shouldn’t have jurisdiction over human rights violations that come from drone strikes, so it won’t be a part of the conversation.
The U.S. vowed to be a collaborative member of the council when it decided to join in 2009 but has so far refused to declassify much of the information it has on drone strikes in Pakistan. “We just don’t see the Human Rights Council as the right forum for discussion narrowly focused on a single weapons delivery system,” an unnamed State Department official told “Foreign Policy.” By avoiding the talks, the US can ignore any rules that come from the discussions.
Nor will there be any domestic pressure to modify the drone policy, especially since the US federal courts have given Obama legal cover for his drone attacks. Two weeks ago, federal judge Rosemary M. Collyer dismissed a lawsuit brought by Nasser al-Awlaki, the relative of two U.S. citizens who were killed by American drone strikes in Yemen and Pakistan.
Attorney General Eric Holder asserted Anwar al-Awlaki was directly and personally involved “in the continued planning and execution of terrorist attacks against the U.S. homeland.” The administration also believed that al-Awlaki was directly linked to the 2009 attempted Christmas Day bombing of a Detroit-bound jetliner and the 2009 FortHood shooting.
But in reaching that conclusion, the court also found it “plausible” that Awlaki’s Fifth Amendment due-process rights were violated. Ultimately, the judge decided, there was no remedy available, so the lawsuit was dismissed. But this sets a dangerous precedent for the targeted-killing program because it means there is no legal recourse for anyone attacked by a drone.
Ironically, the problem began with the Obama administration itself, which argued several years ago that the determination to target Awlaki complied with due process. The essence of due process, as Harvard Law Professor Noah Feldman recently argued at an Intelligence Squared debate, is that “the government would not kill its own citizens without a trial.” That principle comes from the English Magna Charta of 1215, and the Framers of the U.S. Constitution had that in mind when, in the Fifth Amendment, they wrote that no onemay “be deprived of life, liberty, or property, without due process of law.”
The question is when due process takes place and when the situation demands other recourses. The Constitution is clear that due process is required before the federal government takes a citizen’s life. But in many cases, that would fly in the face of common sense.
Noted legal expert and law professor Alan Dershowitz points out a bank robber firing at police as he flees is not entitled to a trial before police can shoot back at him. Rather, the dangerous and imminent threat posed by the robber justified an exception to due process. This exception is widened in the case of war, which is why the laws of war have never required a prior hearing before incapacitating an enemy combatant that is on the battlefield.
So, what does the US consider due process? A Department of Justice white paper leaked last year stated that the current policy of the executive branch is that it can lawfully target and kill Americans abroad who pose an imminent threat of violent attack to the US.
The court in the al-Awlaki case agreed that he met this standard: The decision stated, “The fact is that Anwar Al-Aulaqi was an active and exceedingly dangerous enemy of the United States.”
But, the court did go on to say that it is plausible that Awlaki’s due-process rights were violated because the DOJ’s white paper argued that it actually is affording due process to targeted Americans.
This is an issue that will cause considerable debate because the definition is so flexible. The DOJ argues that “the process due in any given instance is” determined by weighing the interests involved. The private interest involved, e.g., someone’s life, is weighed against the government’s asserted interest in protecting American lives. While both interests are weighty, the government’s interest is weightier, so due process can be expedited and simplified for those targeted.” In other words, due process depends on how important the issue is, not by legal norms. According to the DOJ white paper, the administration thinks due-process requirements are met “where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat.” However, no one knows what constitutes a “high-level official.”
This is an interpretation that has been criticized by Administration critics on both sides of the political spectrum. Conservative Justice Antonin Scalia vehemently criticized this malleable interpretation of due process in 2004 when it was applied to wartime detention.
The criticism also comes from Obama’s own party. Democratic Senator Wyden asked, “Are there any geographical limitations to the president’s ability to kill people with drones? Put another way, could the president send a drone armed with a “Hellfire” missile to kill an American on American soil in their home?”
Although the number of drone strikes has declined in the last year (8 attacks in Yemen in 2014), the question of how they are used remains a hot subject – especially in the light of the federal court ruling and the growing use of drones for surveillance within the United States. The secretive nature of the process bothers many because due process was written into the US Constitution to prevent governments from secretly ruling that people could lose their property, freedom, or life.
Drones have been used recently in the US to track and arrest American citizens. The first known incident of a drone-aided arrest took place in North Dakota in 2011 when farmer Thomas Brossart was taken into custody after he refused to return some cows that had wandered onto his property. Police across the US now regularly use drones for surveillance.
The American Civil Liberties Union (ACLU) is concerned about where that data ends up. “The trick is, we need a system of rules to ensure we can enjoy the benefits of drone technology without becoming a surveillance society,” said Allie Bohm, advocacy and policy strategist for the ACLU. “We want to prohibit drones for massive surveillance and still allow law enforcement to use them in cases of wrongdoing.” The ACLU supports the warrant requirements some states have enacted.
Although Obama promised a new drone policy last year, it’s clear that despite worldwide condemnation, the American Administration will continue use drones as a weapon. The recent court case will only make it politically easier for them to continue on the same course.
PUBLICATIONS
Evolving Threats and Strategic Partnerships in the Gulf
By Anthony Cordesman
Center for Strategic and International Studies
April 15, 2014
Key Threats: Internal ethnic and sectarian tensions, civil conflict, continued instability, failed governance and economy. Syrian civil war. Iraq, Lebanon, “Shi’ite crescent.” Sectarian warfare and struggle for future of Islam through and outside region. Sunni on Sunni and vs. Shi’ite struggles. Terrorism, insurgency, civil conflict linked to outside state and non-state actors. Wars of influence and intimidation. Asymmetric conflicts escalating to conventional conflicts. Major “conventional” conflict threats: Iran-ArabGulf, Arab-Israeli, etc. Economic warfare: sanctions, “close the Gulf,” etc. Missile and long-range rocket warfare. Proliferation, preventive strikes, containment, nuclear arms
race, extended deterrence, “weapons of mass effectiveness”.
The takeaway from the languishing Middle East peace process
By John R. Bolton
American Enterprise Institute
April 12, 2014
Barack Obama has announced a “pause” for a “reality check” in his Israeli-Palestinian diplomacy, although no one is really deceived by this euphemism. His “peace process” is verging on collapse, despite a year’s investment of U.S. diplomatic time and effort. Not only will the negotiations’ impending failure leave Israelis and Palestinians even further from resolving their disputes than before but America’s worldwide prestige will be significantly diminished. Our competence and influence are again under question, Israel has been undermined and by misallocating our diplomatic priorities, we have impaired our ability to resolve international crises and problems elsewhere, such as Russia’s annexation of Crimea.
The Roots of Crisis in Northern Lebanon
By Raphaël Lefèvre
Carnegie Endowment
April 15, 2014
As the conflict in Syria enters its fourth year, it continues to spill over the borders of neighboring countries and alter local dynamics, sometimes with significant consequences. Lebanon, in particular, has been greatly affected by the Syrian civil war. An influx of Syrian refugees, now exceeding 1 million in a population of 4.4 million, has impacted the country’s local socioeconomic and religious fabric. The ongoing stalemate in Syria has also further polarized Lebanon’s already-tense domestic political situation, which is shaped by a schism between the March 8 coalition, broadly sympathetic to the Syrian regime, and the March 14 alliance, which is opposed to the government in Damascus. Most recently, the rise of Sunni extremism in the Syrian conflict has unleashed disturbing religious and security dynamics in Lebanon, with al-Qaeda affiliates that are fighting in Syria, such as the Nusra Front and the Islamic State of Iraq and the Levant, launching Lebanese chapters.
The Next Huddle on US-Israel Security Technology Cooperation
By Ben Lerner
Center for Security Policy
April 7, 2014
One of the many benefits of the US-Israel relationship has been the extent to which American and Israeli security have been significantly bolstered by security technology cooperation. Joint US-Israel missile defense programs such as Iron Dome and the Arrow system have demonstrated their utility in obstructing rocket fire directed at Israel by terrorist organizations and their Iranian patrons, and Elbit Systems will soon be bringing Israel’s border security expertise to bear on our persistent southwest border vulnerabilities. As with missile defense and border security, the United States and Israel now need to huddle on another area of security technology that is emerging as an imperative for both nations: counter-drone technology.
Ruling vs. Governing: Pluralism and Democracy in Turkey, Egypt, and Tunisia
By Sebnem Gumuscu and E. Fuat Keyman
German Marshall Fund
April 15, 2014
The past few months have been marked by critical developments in Turkey, where corruption allegations against the government ignited a power struggle between the ruling Justice and Development Party (AKP) and the Gulen movement over control of the state. We contend that the AKP’s increasing tendency to rule through domination instead of governing through leadership in the ongoing political predicament exacerbates the crisis by undermining the rule of law and political pluralism. Political leaders may be tempted to rule and dominate rather than to govern and lead. However, as we see in Turkey (also in Egypt), this temptation makes incumbents weak and vulnerable while governing through leadership makes them stronger.
Sending a Bunker-Busting Message to Iran
By Lt. General David Deptula, USAF (ret.) & Dr. Michael Makovsky
Jewish Institute for National Security Affairs
April 8, 2014
The Wall Street Journal
Prussian leader Frederick the Great once lamented, “The ways of negotiation have failed up to the present, and negotiations without arms make as little impression as notes without instruments.” The same could be said about nuclear negotiations with Iran. The Obama administration has cut a deeply flawed interim deal, forgone new sanctions, and effectively taken the military option off the table. It’s time to increase the pressure on Tehran by boosting Israel’s military capacity to cripple Iran’s nuclear program. It’s hard to imagine negotiations succeeding. The interim deal has undercut the leverage of the U.S. and its partners. It has triggered a rise in Iran’s oil-export revenue, while its nuclear-breakout timing remains unchanged due to increased centrifuge efficiency, as permitted in the deal. Tehran continues to deny inspectors access to key nuclear facilities. Recent tensions with Russia will only create new opportunities for Iran to exploit the U.S. in negotiations.
