Obama 19. Drones: The Normative Debate 27.02.13

by

Howard Adelman

Al Qaeda and its associated forces, that is a co-belligerent organized force committed to fight alongside al Qaeda against the United States and its allies even if the primary goals differ, have enough coherence to be called an enemy and enough intent to attack the United States, its assets and its allies so that the violent conflict with them can be called a war. The ethical and legal issue is whether the conduct of that war, particularly in the use of drones, follows the norms of just war theory.

One can find a profusion of writing criticizing the drone program for being illegal and unethical as well as counter-productive. Most of that writing is polemical though there are a small number of legal critiques. As an example of a polemical critique, read Saijad Shaukat, "Killing Civilians: Obama’s Drone War in Pakistan," Global Research, 14 December 2012: "these strikes are illegal, unethical and a violation of Pakistan’s sovereignty as well as the UN Charter." The denunciations contain neither evidence nor arguments and are simply critical opinions.

Ignoring opinionated screeds, broadly speaking, the debate over strikes targeted at individual members of al-Qaida has centered on their legality, their ethics, the wisdom of using them, and the standards by which they are approved. The assumption all around is that a war against the terrorists who perpetrated or who are allied with the perpetrators of 9/11 is a just war for a just cause and a just war if proportionate to the continuing harm being carried out. The questions are about the conduct of the war, in this case the conduct of employing drones from which missiles can be sent to assassinate individual members of the enemy.

The question should not be about targeting per se, though some seem to think that is questionable. The use of lethal force against known individuals who are members of an enemy group has long been regarded as legal and in accordance with the laws of war. See Harold Koh, "International Law and the Obama Administration," American Society of International Law, Washington, 25 March 2010; Koh, now Dean of the Yale Law School, was then Legal Adviser to the State Department and offered the first legal justification for the use of drones by the Obama administration in response to a request from Philip Alston, the UN special rapporteur on extrajudicial killings who claimed that the use of drones by the CIA, not per se, butabsent appropriate cautions and accountability mechanisms, would be illegal under international law.

There are associated groups allied with al Qaeda that the United States has not yet attacked. Jabhat al-Nusra is one. It constitutes the Islamist faction of the rebel group attempting to overthrow the Assad regime in Syria. Recently it took responsibility for the Damascus bombings and for the rout the day before yesterday of the Syrian army from the Golan Heights. (See Salem Al-Dimashki, "Syria’s Druze Grapple With Jabhat al-Nusra,", ALMONITOR, 8 February 2013) Israel now faces extremist Islamist forces not only in Gaza (Hamas) and in Lebanon (Hezbollah), but now on its Syrian border. The great fear is that Jabhat al-Nusra will gain access to Syria’s stockpile of chemical weapons.

In war, chemical weapons are now banned from use. Weapons that are used must be authorized by a proper authority, be motivated by the right intentions, must have a reasonable probability of success, must be proportionate in the harm done relative to the good in eliminating enemies – this is often referred to as the principle of discrimination since all efforts possible must be in place to minimize collateral damage to civilians while still allowing the military mission to go ahead. Finally, the initiative must be employed as a last resort and, as we shall see, this norm is the one most often misinterpreted. It is rare in public life that a policy is debated primarily in just war terms, so I will take enough space to deal with the various issues.

Right Authority

Usually right authority is taken to mean the authority source that tells a soldier to implement the decision – that is the source of the top-down command. In the case of the Obama administration, the leadership accepted the challenge to establish and make sure that the democratic voter also supported their use of drones in the war against the Islamic extremists. They went further and thought that the public in the countries in which they were being used also should support America’s use of drones and should not get caught up in a mistaken belief that drones were employed careless of the harm they do and can cause. John Brennan in his 2012 speech at the Woodrow Wilson Centre acknowledged "that we, as a government, along with our foreign partners, can and must do a better job of addressing the mistaken belief among some foreign publics that we engage in these strikes casually, as if we are simply unwilling to expose U.S forces to the dangers faced every day by people in those regions." This latter is not really an ethical norm that can be attached to the agent utilizing the weapon, but is really only one of the success measures. On that measure, as can be seen in the last blog, the Obama administration has not been successful. However, Brennan viewed the fulfillment of that norm as dependent on America taking due diligence to avoid or minimize civilian casualties and fulfilling the principle of discrimination. As Brennan insisted, "there is absolutely nothing casual about the extraordinary care we take in making the decision to pursue an al-Qaida terrorist, and the lengths to which we go to ensure precision and avoid the loss of innocent life."

1. Public Opinion

61% of American voters approve the use of drones to target Islamist radicals. 18% are opposed. (Huffington Post, "Omnibus Poll" 10-11 January 2013) though by a margin of 2:1 they regarded targeting American citizens who had joined al Qaeda abroad as illegal. (Fairleigh Dickinson Poll, 7 February 2013). That latter poll were confident in the military carrying out such attacks (75%) but 10% less, 65%, supported making the CIA responsible for the CIA attacks. Thus, except for targeting American Islamists, the administration enjoys strong support for using drones for such purposes and assigning that task to the CIA even if they would prefer that the military carry the responsibility.

Support from the public of the countries in which drones are being used is not required for their use to be legally and ethically justified. For, as I indicated in my last blog, America is woefully lacking in such support. However, if drones create a backlash in the countries that host Islamicist warriors, that is nothing compared to the backlash against American boots on the ground. The strategic, but not ethical or legal requirement, could be the principle of using a method of fighting that, if at all possible, minimizes a local backlash.

2. Political Authority

John Brennan defended the strategic wisdom of using drones.

Targeted strikes are wise. Remotely piloted aircraft in particular can be a wise choice because of geography, with their ability to fly hundreds of miles over the most treacherous terrain, strike their targets with astonishing precision, and then return to base. They can be a wise choice because of time, when windows of opportunity can close quickly and there just may be only minutes to act. They can be a wise choice because they dramatically reduce the danger to U.S. personnel, even eliminating the danger altogether. Yet they are also a wise choice because they dramatically reduce the danger to innocent civilians, especially considered against massive ordnance that can cause injury and death far beyond their intended target. In addition, compared against other options, a pilot operating this aircraft remotely, with the benefit of technology and with the safety of distance, might actually have a clearer picture of the target and its surroundings, including the presence of innocent civilians. It’s this surgical precision, the ability, with laser-like focus, to eliminate the cancerous tumor called an al-Qaida terrorist while limiting damage to the tissue around it that makes this counterterrorism tool so essential.

The geographic issue is much more complicated than Brennan implies for the issue is not simply about the difficulty of the terrain, but that the target is not living in an area of battle but located in a region in which there are no ostensible hostilities. Such objections were made by Mary Ellen O’Connell from the University of Notre Dame Law School who served as chair of the International Law Association (ILA) on its Committee on the Use of Force. (See the interview with her posted on the International Relations and Security Network on 20 February 2013. http://www.isn.ethz.ch/isn/Digital-Library/Articles/Detail/?lng=en&id=159629)

Brennan in his ethical as opposed to his strategic defence of the use of drones went beyond the simple argument that Barack Obama as Commander in Chief of the United States forces was fully authorized to use drones. Congress passed the AUMF, the Authorization for the Use of Military Force one week after 9/11. (Pub. L. No. 107-40, 115 Stat. 224 2001) The congressional authorization mandated the use of all necessary and appropriate force against those nations, organizations, or persons that the president determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Brenner also said that in such authorization, Obama was accountable to Congress. "Ensuring the ethics and efficacy of these strikes also includes regularly informing appropriate members of Congress and the committees who have oversight of our counterterrorism programs." He credited oversight with also improving the effectiveness of the use of drones, but since he did not explain himself, and since it is difficult to see how a committee could help make a weapon more effective, I have no idea what he meant by that claim.

In addition to the formal status of the president in the governing structure of America, Brennan required subjecting that authority to a system of accountability in response to a subsequent op-ed in The New York Times by Mary-Ellen McConnell (6 February 2013) who implied that this was the key weak link in the Obama administration’s justification for the use of drones. (See her 2012 book, What is War? An Investigation in the Wake of 9/11. I will note that McConnell, whatever her legal reasoning and her excellent bona fides as a lecturer on the subject to members of the US defense department, was just totally off base in that op-ed in claiming that Brennan has refused "to openly discuss the legal basis for America’s campaign of targeted killings of terrorism suspects." In my reading, he gave speech after speech in 2010 and 2011 doing precisely that, as did other members of the administration. More to the point, though it is a joy to read impassioned critiques, and while I would have loved to be convinced, I personally found her criticisms not only to be very unrepresentative of the vast majority of legal scholarship but simply unpersuasive. Further, she did what many others critics have done, confused human rights protections with just war law and ethics. The two are radically different.

Brennan then introduced a third factor that buttressed his case for rightful authority – the extreme care in the process of making the decisions. "This is the seriousness, the extraordinary care, that President Obama and those of us on his national security team bring to this weightiest of questions: Whether to pursue lethal force against a terrorist who is plotting to attack our country."

But what if the drone attack is not against a named terrorist but against a group who seem to be demonstrating behavioural patterns as if they were terrorists, the so-called "signature strikes"? (Cf. Cora Courier and Justin Elliott "Drone war concerns go far beyond the killing of American citizens," Pro Publica 26 February 2013) How can suspicious behaviour justify the use of lethal force by unmanned drones? Further, what about the authority for killing American citizens abroad by using drones that the American public does not seem to support? Four American citizens have been killed abroad by the use of drones compared to 2,600-3,000 militants and civilians. Kmal Derwish who was killed in a drone attack in Yemen, the first drone attack outside of Afghanistan, was an American citizen. He was the first of four American citizens killed in drone attacks. As I wrote yesterday, Anwar al-Awlaki and Samir Khan, both American citizens, were killed in Yemen on 30 September 2011. Two weeks later, the fourth American citizen, al-Awlaki’s son, Abdulrahman, was also killed.

By what legal authority does the government justify such assassinations? I should note that Jeh Johnson found the use of the term "assassination" to be repugnant, both legally and because of psychological associations with the murders of President Kennedy, Robert Kennedy and Martin Luther King. I would strongly defend its use for it accurately describes in ordinary language what takes place even if it is a term that would not want to be employed by a defence attorney in a legal case defending such killings. Perhaps I am more comfortable with its use because I am a Canadian.

Brennan answered the latter question of killing American citizens abroad by citing Attorney General Holder’s legal brief. "When that person is a U.S. citizen, we ask ourselves additional questions. Attorney General Holder has already described the legal authorities that clearly allow us to use lethal force against an American citizen who is a senior operational leader of al-Qaida. He has discussed the thorough and careful review, including all relevant constitutional considerations, that is to be undertaken by the U.S. government when determining whether the individual poses an imminent threat of violent attack against the United States." I will discuss that justification in the next section.

3. Legal Authority

John Brennan in his 2012 Woodrow Wilson talk summarized the legal defence of drone attacks as follows:

First, these targeted strikes are legal. Attorney General Holder, Harold Koh, and Jeh Johnson have all addressed this question at length. To briefly recap, as a matter of domestic law, the Constitution empowers the president to protect the nation from any imminent threat of attack. The Authorization for Use of Military Force, the AUMF, passed by Congress after the September 11th attacks authorized the president “to use all necessary and appropriate forces” against those nations, organizations, and individuals responsible for 9/11. There is nothing in the AUMF that restricts the use of military force against al-Qaida to Afghanistan.

As a matter of international law, the United States is in an armed conflict with al-Qaida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense. There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.

The full legal justification can be found in the Department of Justice White Paper released by NBC News.

(http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf)

Those targeted can be a senior operational leader of al-Qa’ida or an associated force of al-Qa’ida – that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans. Three conditions were specified:

1) the determination is made by an informed high-level official of the U.S. government that the target poses an immanent threat of violent attack against the United States;

2) capture is infeasible;

3) the operation would be conducted in a manner consistent with applicable law of war principles.

The Presidential authority was sanctioned by international law and the law of defence, Congressional authorization "to use all necessary and appropriate military force" and his own role as Commander-in-Chief and his sworn duty to protect the country. (Cf. Charlie Savage and Scott Shane, "Memo Cites Legal Basis for Killing U.S. Citizens in Al Qaeda," The New York Times, 5 February 2013) Not included in the memo is any reference to the 2006 endorsement by the U.S. Supreme Court that determined that the United States is in an armed conflict with al Qaeda. The legality has been backed by all three branches of government in the United States.

The memo referred to indicated that the lawfulness of the use of lethal force in a foreign country would require the consent of the host nation’s government in order not to offend the principles of sovereignty and neutrality if the host nation is unable or unwilling to suppress the threat posed by the individual targeted. But as I indicated yesterday, Pakistan, at least in public, vociferously criticized the drone campaign, though in noticeably slippery language.

Aren’t American citizens protected by the Fourth Amendment on the rights of citizens and the prohibition against unreasonable seizures and the due process clause of the Fifth Amendment? How could they be targeted? Killing American citizens abroad is not illegal according to the leaked legal brief citing Mathews v. Eldridge since the individual’s interest in protecting his/her own life would be offset by the United State’s obligation to forestall the threat of violence. Such an interpretation has evidently been upheld in a series of Supreme Court decisions beginning with Hamdi, 542 U.S. at 518. The Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if “an informed, high-level official” of the government decided that the target was a ranking figure in al Qaeda or its associated organizations who posed “an imminent threat of violent attack against the United States.” The key criteria are:

• Is the individual a senior operative?
• Is the threat immanent? A threat would be considered immanent even if the individual were engaged in planning operations to kill Americans. Immanence in the document is defined to include: the relevant window of opportunity; the possibility of reducing collateral damage to civilians and: the likelihood of heading off future disastrous attacks on America.
• The threat does not have to take place on a hot battlefield for there is no geographic limit when the enemy is involved in a non-international (i.e. non-inter-state) armed conflict.

(The 16-page classified legal memo leaked through NBC News is also available online at other sites. Cf. http://openchannel.nbcnews.com/_news/2013/02/04/16843014-justice-department-memo-reveals-legal-case-for-drone-strikes-on-americans?lite)

Whether such a legal briefing holds up in the courts, it did seem to settle down much of the furor and cries for transparency concerning the legal justification for drone attacks. (Cf. Sarah Holewinski, "Drones: An Outlier in a Transparent Presidency, Politics, 19.01.2013) Further, although the leakage of the legal justification did seem to quiet down the large number of Americans critical of killing American citizens abroad, it served to raise new questions about deliberately targeting low level operatives or for targeting behaviour rather than identity-based targets, the so-called "signature strikes".

Another legal justification was offered by the Pentagon General Counsel, Jeh Johnson, in his speech at the Oxford Union on 30 November 2012. The speech, "The Conflict Against Al Qaeda and its Affiliates: How Will It End?" (Johnson at Oxford) has been published online by Benjamin Wittes on "Lawfare". Benjamin Witte is a Senior Fellow in Governance Studies at Brookings and co-directs the Harvard Law School-Brookings Project on Law and Society. (http://www.lawfareblog.com/2012/11/jeh-johnson-speech-at-the-oxford-union/) Johnson’s job is to ensure that everything the Defense Department does is consistent with U.S. and international law. I will leave aside for the moment whether the defence he offered applies to CIA operations, but it is generally assumed that the legal doctrine binding the military is much stricter than one binding the CIA. On 22 February 2012, Jeh Johnson also gave the Dean’s Lecture at Yale Law School entitled, "National Security Law, Lawers and Lawyering in the Obama administration. (Jonson at Yale) I will now cite both speeches and suggest they are fully consistent with the 16-page leaked memo. There is also a forthcoming conference at the Notre Dame Law School on "The Ethical, Strategic and Legal Implications of Drone Warfare" 19-21 March 2013.

In his account, Johnson indicated that the US had signed agreements with the Afghan government on "strategic operations". He said nothing about an equivalent agreement with the Pakistan government. Johnson also indirectly referred to Obama’s decision to rename the war as a war against al Qaeda and its affiliates and not the abstract category, Bush’s "War on Terror". "We have made clear that we are not at war with an idea, a religion, or a tactic. We are at war with an organized, armed group — a group determined to kill innocent civilians." The definition specifically excludes journalists, activists or propagandists solely engaged in those pursuits or even self-radicalized terrorists inspired by al Qaeda for they remain civilian suspects subject to criminal law and are not part of an armed force. The targeted individuals have to be part of an armed force and they are attacked in a way consistent with the law of war and its principles of proportionality, necessity and distinction. Such a war will end only when a tipping point is reached that al Qaeda and its affiliates are degraded to such an extent that it is no longer to be regarded as an effective military force but only clusters of bedraggled terrorists.

In my review of the legal justification of Obama’s drone policy that involves what I already have argued is a conventional even if transforming mode of arms delivery to nonconventional targets, I am convinced that is arises from a healthy and robust debate among legal professionals rather than a pre-packaged response to fit a predetermined policy. I have pointed out where I find lacunae – deliberately attacking low level targets or signature strikes. However, in general, the reasoning is careful and credible, pragmatic and carefully delineated. The courts will determine whether the rationale is definitive.

Whatever the results, the rule of law is once again the supreme authority in the United States in generals and governs the use of drones.

Finally, when considering lethal force I am of course mindful that there are important checks on our ability to act unilaterally in foreign territories. We do not use force whenever we want, wherever we want. International legal principles, including respect for a state’s sovereignty and the laws of war, impose constraints. According to the Obama doctrine, the United States of America respects national sovereignty and international law.

4. Ethical

In President Barack Obama’s speech in Oslo accepting the Nobel Peace Prize, the president said that “all nations, strong and weak alike, must adhere to standards that govern the use of force.” And he added: “Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. And even as we confront a vicious adversary that abides by no rules, I believe the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength.” This reflected his approach to broader questions regarding the use of force and the importance he placed on the use of force conforming to international legal norms.

John Brennan insisted that targeting enemies with drones was not only legal but ethical as well.

Targeted strikes conform to the principle of necessity, the requirement that the target have definite military value. In this armed conflict, individuals who are part of al-Qaida or its associated forces are legitimate military targets. We have the authority to target them with lethal force just as we target enemy leaders in past conflicts, such as Germans and Japanese commanders during World War II.

Targeted strikes conform to the principles of distinction, the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted. With the unprecedented ability of remotely piloted aircraft to precisely target a military objective while minimizing collateral damage, one could argue that never before has there been a weapon that allows us to distinguish more effectively between an al-Qaida terrorist and innocent civilians.

Targeted strikes conform to the principle of proportionality, the notion that the anticipated collateral damage of an action cannot be excessive in relation to the anticipated military advantage. By targeting an individual terrorist or small numbers of terrorists with ordnance that can be adapted to avoid harming others in the immediate vicinity, it is hard to imagine a tool that can better minimize the risk to civilians than remotely piloted aircraft.

For the same reason, targeted strikes conform to the principle of humanity which requires us to use weapons that will not inflict unnecessary suffering. For all these reasons, I suggest to you that these targeted strikes against al-Qaida terrorists are indeed ethical and just.

If we begin with the use of lethal force via drone attacks, the use of drones armed with missiles is considered as conforming to the principle of necessity if those firing the drones are properly trained and, after careful consideration of the evidence, conclude that the individual targeted poses a significant threat to U.S. interests and the action is necessary to prevent future attacks and to mitigate an actual ongoing threat to save American lives. The threat cannot be an abstract one so the individuals targeted must be either high level leaders who initiate such plans or mid-level leaders either with expertise to produce the explosives or train others in their production or responsible for the execution of those plans. Thus, the threat must be a significant one. The targets cannot be low level militants, though low level militants can be killed in such attacks.

The strike against a particular individual must be intended to prevent an attack before it can be carried out or to disrupt the planning process in preparing such attacks. There is one other criterion in applying the "necessity" criterion: capture must be the preferred option, not elimination. And it is on this factor that the Obama program of using lethal drone attacks is most vulnerable to criticism. The administration has simply not justified its actions in showing that in every case capture was not feasible and lethal drones had to be used. Using the drones did not make their use illegal, but unless the option of capture was truly weighed, then the actions are unethical. With respect to Zero Dark Thirty and CIA objections to mis-portrayal in the film, the argument was never made that the account of bin Laden’s killing was basically inaccurate. There is no explanation of why he was not captured alive since he was by all accounts not armed when he was killed and the Americans were never able to possibly probe and find what intelligence might have been in his head. The Americans did capture Ahmed Warsame, a member of al-Shabaab in the Arabian Peninsula when he was traveling from Yemen to Somalia, but he stands out as a rare exception rather than the more predominant course of action.

What about the principle of distinction that requires attacks to be limited to military objectives. Civilians may be killed in accordance with the principle of proportionality which I have yet to discuss, but civilians and civilian structures should not be the object of the attack. "Signature strikes" pose a challenge to such a principle since by their nature, the object of the attack lacks clarity. Noticing a pattern of behaviour that accords with a militant group’s behaviour is precisely why signature strikes should not be authorized. The evidence is insufficient to support the objective and, in addition, the risk of collateral damage and breaking the principle of proportionality is too great.

The third principle of proportionality requires that any innocent civilian life lost in such an attack, or anticipated to possibly be sacrificed, must be in proportion to the military objective to be achieved. Put bluntly, the higher the value of the target, the greater the loss of civilian lives that can be tolerated. This cannot be interpreted to mean that one can simply ignore collateral damage to civilians or civilian property. Quite the reverse! In all cases, the greatest effort must be taken to minimize and mitigate harm to civilians and their property. It just means that after taking such care, the damage of civilians and their property cannot be excessive in relation to the target of the attack.

John Brennan argues that, "we only authorize a strike if we have a high degree of confidence that innocent civilians will not be injured or killed, except in the rarest of circumstances. The unprecedented advances we have made in technology provide us greater proximity to target for a longer period of time, and as a result allow us to better understand what is happening in real time on the ground in ways that were previously impossible. We can be much more discriminating and we can make more informed judgments about factors that might contribute to collateral damage."

This suggests that the more technology advances, the standards for proportionality increase so that we should expect fewer and fewer civilian casualties per militant killed. Brennan has even implied an almost zero tolerance for civilian casualties which I consider an impossible standard. "[T]here have indeed been occasions when we decided against conducting a strike in order to avoid the injury or death of innocent civilians. This reflects our commitment to doing everything in our power to avoid civilian casualties, even if it means having to come back another day to take out that terrorist, as we have done previously. And I would note that these standards, for identifying a target and avoiding the loss of innocent — the loss of lives of innocent civilians, exceed what is required as a matter of international law on a typical battlefield." According to the stats, they may have approached those standards in 2012, but I remain sceptical.

Brennan insists that, " despite the extraordinary precautions we take, civilians have been accidentally injured, or worse, killed in these strikes. It is exceedingly rare, but it has happened. When it does, it pains us, and we regret it deeply, as we do any time innocents are killed in war. And when it happens we take it very, very seriously. We go back and we review our actions. We examine our practices. And we constantly work to improve and refine our efforts so that we are doing everything in our power to prevent the loss of innocent life. This too is a reflection of our values as Americans." This suggests a new modification to the discrimination and proportionality rule – that when mistakes are made, reviews must follow to see what lessons can be learned to prevent collateral damage in the future.

CONCLUSION

Steve Coll ended his New Yorker piece, "Name Calling" (4 March 2013) with the following paragraph: "Jihadist violence presents an enduring danger. Its proponents will rise and ebb; the amorphous threats that they pose will require adaptive security policies and, occasionally, military action. Yet the empirical case for a worldwide state of war against a corporeal thing called Al Qaeda looks increasingly threadbare. A war against a name is a war in name only." Obama had replaced Bush’s War Against Terror with a war against al Qaeda and associated forces that seems to be a war without end.

I believe Jeh Johnson provided a reasonable answer to Steve Coll for defining that end. I also think that the various justifications for the use of drones to target enemies have answered such questions as clarifying why the war against al Qaeda counts as an armed conflict, that the issue of "immanent threat has been clarified, and made clear that the authorization for drone attacks must be under the direct authorization of the Executive Branch but without clarifying why the CIA rather than the armed forces have been charged with the task of implementation, though it has been suggested that it is a combination of their more direct access to eyes on the ground and the CIA’s greater nimbleness, practical matters of delivery rather than an assessment in terms of legal and ethical issues. The Obama administration has insisted that drone attacks cannot be carried out in countries where the ruling government objects to such attacks as an infringement on its sovereignty, but has not clarified the process whereby such objections can be registered. In fact, the administration has suggested that the sovereign state must explicitly concur in permitting such attacks, but given the behaviour of Pakistan, it also means that the sovereign state can publicly disavow any such approval.

According to the Obama doctrine, pre-emptive strikes are permitted, but here are three areas in which the Obama doctrine appears to fall woefully short. The Obama administration does not seem to have explicitly rules out targeting low level militants though the doctrine clearly implies they should be ruled out as targets, but the practice suggests this is certainly not always the case. The doctrine is clear in theory that capture is preferred, but the practice seems to point to killing as the first order of business. Third, the whole doctrine of signature strikes based on patterns of behaviour need to be explicitly ruled out if the Obama doctrine is to be taken at face value.

Finally, I want ironically to return to the principle of "last resort". Last resort does not mean that you try all other options first. It does mean that you consider other options as preferable if they are also both feasible and prudent. Since no outsiders have had access to the discussions on the use of drones, and since we have only had reassurances that the principle has been taken into consideration, I am unable to assess the degree to which this has been the case.

Tomorrow: Obama’s Resurrection of the Israeli-Palestinian Peace Process 28.02.13

[Tag Obama, drones, Brennan,
Johnson, discrimination, necessity, proportionality, just war]

Obama 19.Drones.Normative Debate.26.02.13.doc