The political and legal implications of President Obama's drone policy were explored by a panel of experts, all of whom urged greater transparency concerning the U.S. use of drones in targeting killings.
“What we've done with the definition of armed conflict post-9/11 poses a fundamental threat to the existence of human rights law…. as the law of war expands, the space for human rights law necessarily shrinks.” —Deborah Pearlstein
by Kevin Sprague and Peggy McInerny
Obama’s drone legacy: Conference summary
UCLA International Institute, December 20, 2016 — The legacy of President Obama’s drone program was the topic of an October 2016 conference at UCLA sponsored by the Burkle Center for International Relations, Center for Near Eastern Studies and the International & Comparative Law Program of UCLA School of Law.
The conference’s featured speakers were General Wesley K. Clark (ret.), chairman and CEO, Wesley K. Clark & Associates and senior fellow, Burkle Center; journalist and writer Conor Friedersdorf; Marty Lederman, associate professor, Georgetown University School of Law, and veteran of the Office of the Legal Counsel, U.S. Department of Justice (2009–10, 1994–2002); Kate Martin, senior fellow, Center for American Progress; Alex Moorehead, director of the Counterterrorism, Armed Conflict and Human Rights Project, Human Rights Institute, Columbia School of Law; and Deborah Pearlstein, associate professor, Cadrozo Law School of Yeshiva University.
Panel 1 (from left): General Wesley Clark (ret.), Conor Friedersdorf, Kate Martin, and
moderator Kal Raustiala (director, Burkle Center).
Panel 1: Political and military perspective
Kate Martin of the Center for American Progress began by addressing the perception that many of Obama’s drone strikes are illegal. She noted that the conversation often stops there, saying, “as if something is illegal, it needs to stop.” Under international humanitarian law, she reminded the panel, the U.S. government can kill enemy fighters if it is taking precautions to protect citizens, “and the United States swears it is doing just that.”
“What are the policy consequences of conducting wars in this way?” asked Martin. While she foresaw a decreased risk to U.S. soldiers and a decrease in violence on the ground in countries where conflict is occurring, Martin predicted that the U.S. government would find it easier to initiate and expand warfare by means of drones. As a result, she argued for greater government transparency and accountability in their use. “We have to talk about how we ensure that that decision… is [taken] with full and adequate consideration of the cost and the alternatives,” she remarked.
In closing, Martin urged the next presidential administration return to Congress and obtain a new authorization to use force against specific groups in specific countries, rather than continue to use the blanket Authorization for Use Military Force (AUMF) adopted days after the 9/11 attacks in 2001.
A skeptic of the Obama drone program, staff writer for The Atlantic Conor Friedersdorf also advocated greater governmental transparency. He contended that most Americans were not aware of the number or gravity of strikes, referring to Pew Research Center data that shows widespread support for drone strikes.
It is impossible to judge, he argued, whether or not drone strikes minimize the deaths of innocents because the Obama administration has not released sufficient information to make such a judgment. For the same reason, he stressed, it is impossible to evaluate the overall costs and benefits of drone strikes.
Questioning the ethics of secrecy with which U.S. government uses drones, he insisted that his reservations did not constitute opposition to a specific target or mission. “Using drones,” he argued, “like using bioweapons, has implications that transcends any one drone strike.” He lamented in particular what he termed "the shortsightedness of the international norms that will surround this weapon as it proliferates."
Specifically, Friedersdorf argued that the positive features of drone strikes lauded by proponents are actually negative. For example, the ability of drones to hover overhead for days purportedly allows for discrimination and thoughtfulness in targeting. However, hovering drones have been linked to severe mental trauma and PTSD in the communities that they surveil. The journalist specifically referenced Yemen, where many communities have ceased gathering in large numbers due to the presence of drones. Friedersdorf was adamant that the impact on civilians, not simply targets, ought to be a major consideration in the use of drones.
And he contended that the grey area of ethics and law surrounding drone use begged the question: “If our drone program is of questionable morality, and of questionable legality, does it at least keep us safer?” Friedersdorf was unsure of the answer. Where the U.S. government sees a few civilian casualties, he saw a breeding ground for anti-American sentiment that could intensify tensions in the Middle East.
General Wesley Clark responded to Friedersdorf by arguing that targeted killings by the U.S. government have happened for decades. He asked the panel and audience to “take a step back and put [the issue] in perspective,” reminding them that the United States had a right to self-defense, one that it has repeatedly been invoked with respect to non-state terrorism following 9/11.
In the case of terrorist groups like the Islamic State, Clark claimed that military invasions were unsustainable. In the Middle East, he said, drone strokes bring together technological innovation and a desire for efficiency in military operations. “Technology drives policy,” he said, “and with it, we picked the course of least resistance.”
Terrorist organizations provide a relatively small physical threat, but attacking them poses the political risk of retaliation. Drone strikes put stress on these organizations, Clark explained, arguing that “every time we strike and we take out the head, or even the financial [person], we are substantially impacting that organization.” Drones don’t just take out terrorist leaders, he emphasized, they “also [impact] those who want to join that organization... they see what’s happening, they hear the buzz of the drones.”
Panelists concurred that the precedent being set by the U.S for other countries was troubling. In the future, asked Clark, would China be wrong for using drones against Americans who met with the Dalai Lama, who is considered a “subversive leader” by the Chinese government? The retired general considered future use of drones for military strikes and law enforcement inevitable. Accordingly, he recommended that the U.S. “chart a sensible path forward that preserves our democracy, American standards and the safety of our society.”
Panel 2 (from left): Alex Moorehead, Marty Lederman and Deborah Pearlstein.
Panel 2: Legal perspective
The second panel explored the challenges of President Obama’s drone program for both international human rights law and international humanitarian law. These two bodies of law govern situations of peace and war, respectively, said Cardozo Law School Professor Deborah Pearlstein.
Expansion of the state’s right to kill in the post-9-11 era. As Pearlstein explained, international human rights law is embodied in a fairly robust set of multilateral treaties created after World War II and outlaws such things as genocide, slavery, arbitrary state killing, deprivation of liberty and many other rights. It is intended, she specified, to be the law that protects human rights at all times and everywhere — even in states where there is no constitution or other human rights protections.
International humanitarian law — also known as the laws of war — establishes humanitarian protections that states are required to observe during armed conflict, such as treatment of the detained, treatment of the wounded, who is targeted by armed forces, etc. That law, said Pearlstein, is embodied primarily in the four Geneva Conventions. In return for observing these protections, she said, “State parties to an armed conflict can use force anytime against any member of an opposing force — you can kill on the basis of status alone in armed conflict and in no other circumstances.”
International humanitarian law recognizes two types of armed conflict: international armed conflict between states and non-international armed conflict (NIAC) between a state and a non-state actor. The concept of NIAC, she explained, applies when a government is: 1) fighting an organized armed group and 2) there is prolonged violence. The classic case for its application is a civil war, she remarked, which occurs in a geographically identifiable place.
The Obama administration has elaborated a novel new theory of “global non-international armed conflict” to legally justify its drone attacks against terrorist forces. That theory describes the armed conflict between the United States and al-Qaida and “associated forces,” which Pearlstein claimed the U.S. loosely defines as successor organizations to al-Qaida. Not only does this type of armed conflict have neither geographical nor temporal limits, but the definition of the “non-state party” to the conflict, she said, “can, by our own terms, change in perpetuity as new groups arise, whether or not they are actually part of al-Qaida.”
Noting that no other state in the world embraces this theory, Pearlstein said, “What we’ve done with the definition of armed conflict post-9/11 poses a fundamental threat to the existence of human rights law…. State killing and detention without charge can be lawful in wartime. Any other time it is practiced, it violates a core prohibition of human rights. And as the law of war expands, the space for human rights law necessarily shrinks.”
Obama curtails and proceduralizes Bush doctrine. Georgetown School of Law Professor Marty Lederman, who worked in the U.S. Justice Department during President Obama’s first term, claimed that Obama had consciously reduced the scope of President George W. Bush’s “global war on terror,” which he described as “a very broad theory of pre-emptive authority that was global and did not rely on the need to define that an armed conflict between the United States and any particular group [existed], or even that an armed conflict or attack was likely or imminent.”
By contrast, the Presidential Policy Guidance (PPG) on the use of drones, released in short form in 2013 and in longer form in 2016, makes “the use of legal force more restrictive than what international [humanitarian] law requires,” said Lederman. Specifically, President Obama has implemented detailed procedures that involve the president personally and his top advisors — not simply military leaders — to authorize drone strikes. That authorization requires:
- proof that there is a compelling and imminent threat to U.S. persons by the people being targeted
- near certainty that the target is present
- near certainty that non-combatants will not be killed or injured at all, even collaterally
- an assessment that capture is unfeasible
- an assessment that the relevant governmental authorities in the country [where the target(s) are located] cannot or will not effectively handle the threat to U.S. persons, and
- no reasonable alternative exists.
President Obama, observed Lederman, has insisted that the president’s powers are bounded and restricted by law — including statutory, constitutional, international and treaty law — and that he will abide by those restrictions. In addition to shrinking the definition and application of the Bush doctrine, the scholar said that Obama had virtually eliminated the use of long-term military detention and military commissions.
Lederman claimed that the Obama administration’s use of drone strikes was in compliance with both international humanitarian law and international human rights law because the U.S. reserves the right to use force against groups with which it is in an armed conflict. “Human rights law only prohibits arbitrary taking of life, and in an armed conflict the taking of life of organized armed forces who are arrayed against you and already fighting with a certain degree of organization is not arbitrary,” he remarked.
The U.S. conducts drone strikes, he added, largely in small ungovernable spaces to which such armed groups have repaired, areas that host states are unable to govern or where they cannot or will not stop the threat posed by these groups. Lederman also claimed that in 98 percent of drone strikes, the U.S. has the consent of the host government of the given territory.
Pearlstein took exception to part of this argument. Authorizing a drone strike in a state where the authorities are unwilling to act against forces engaged in armed conflict with the U.S. implies a transgression of sovereignty, she said. By contrast, a state’s inability to act creates a more reasonable basis for an outside power to launch an attack on such forces.
Obama himself believes that more transparency about the use of drones is needed to set the right legal precedents for drone use in the future, said Lederman. Nevertheless, he argued, “The U.S. in this armed conflict has said exponentially more about its standards for use of legal force than any military or any state in any armed conflict, ever.”
Obama expands drone program in secrecy, blurring lines of war and peace. Although Obama put a stop to the most egregious practices of the administration of President George W. Bush (e.g., indefinite detention, torture and extrajudicial killings), he oversaw an almost sixfold increase in the number of drone strikes and a fourfold increase in the number of consequent deaths during his first two years in office alone, said Alex Moorehead of the Institute of Human Rights of Columbia Law School.
“At the outset, it was a total secretive killing program… there was no disclosure at all,” said the speaker. Over time — aided by what he called “the dogged work of NGOs, human rights organizations, journalists, others and to an extent, insiders pushing for greater transparency” — more information became available about the drone program, first through speeches by senior officials and ultimately, the partial (2013) and fuller (2016) release of the PPG and other documents.
For Moorehead, the Obama drone program is controversial because of the precedents it has set for other countries (who have drones), its lack of transparency and external judicial accountability and, above all, the legal theory on which it rests. “This notion that there is an armed conflict with a whole disparate group of actors is, I think, a very dangerous notion… Other states could use these theories to justify killing a whole number of groups around the world.”
He urged that the U.S. administration disclose more about the legal basis of its drone strikes, including why and on what basis strikes are carried out, what definitions are used in the legal documents that justify the strikes, how these definitions are applied and how standards are assessed for the government. Accountability, he argued, requires both greater transparency and some kind of external judicial accountability for the targeted killing program, even if that takes the form of some kind of post-strike court review.
Legal legacy. Pearlstein also stressed the danger of the legal theory being used by the Obama administration. “You have to draw the line, as a matter of law, between when killing is OK and when killing is not OK,” she said. “And the line that we’ve drawn and become accustomed to over 15 years is a line that says, in an enormous number of more circumstance than used to be the case, it’s ok to kill.”
Pearlstein emphasized that prior to 9/11, U.S. administrations responded to acts of terrorism and terrorist forces by applying a combination of criminal law, diplomacy and in rare instances of actual or imminent attack, a bombing raid. But in that period, direct military action was far more transparent: if the U.S. president authorized a bombing raid, he went on television and explained it to the American people, as did President Clinton after bombing suspected al-Qaida sites in Sudan and Afghanistan after two U.S. embassies in Africa were attacked by the terrorist group in 1998.
Moorehead agreed with Pearlstein, saying that in essence, “The Obama administration has overseen a continuation of a loosening of the constraints on the use of force and on killing, and that applies to its interpretations of when it is justified to use force in self-defense.” The legal scholar also stressed that the authority of the executive branch in the U.S. political system is too broad — even the PPG, he noted, constitutes policy standards, not legal standards.
Lederman alone contended that “U.S. actions are consistent with historical practice: armies have gone after the military leaders of their enemy outside of armed conflict zones in various armed conflicts over time…” He predicted, however, that internal government agencies would pressure the next president and administration to cut back and/or weaken the PPG to give them greater leeway to act in various circumstances.
Beyond anxieties about the geography, technology, targeting criteria and intelligence associated with using drones for targeted killing, Lederman believed that people were most troubled by the drone program because they didn’t trust the U.S. to correctly evaluate the available evidence and make the right decision.
* All speaker photos by Kevin Sprague/ UCLA.