Contrary to the popular slogan, the September 11 attacks did not change everything. They did, however, transform how Americans, and especially American officials, think about both war and executive power. The resulting “War on Terror” has been under way for a dozen years.
In a traditional war, whether formally declared or unofficially fought, the battlefield is defined, the conflict is time-limited, and the opposing sides are obvious. Not so in the “War on Terror.” At times, this new hybrid looks like traditional war; at others, like law enforcement. What rules apply?
The issue ended up in federal court in August 2010 when Nasser al-Awlaki sought a preliminary injunction to prevent the Obama administration from assassinating his son, Anwar al-Awlaki. The judge dismissed the lawsuit on procedural grounds and al-Awlaki fils later was killed by a Predator drone (as was his teenage son).
These issues have taken on special importance since the new war appears to be permanent, with the entire earth, including the American homeland, the battlefield. True, Washington was forced to end its involvement in Iraq, and American participation in the Afghanistan war appears to be coming to a welcome end. But elsewhere, especially in Pakistan and Yemen, war by other means has become routine.
The tactic du jour is targeted killing—assassination—even though U.S. officials often don’t know the names of, or much else about, the people being targeted. Sometimes, the task needs to be close and personal, or the identification needs to be certain, as when Osama bin Laden was the target. Then Uncle Sam calls in the SEALs. But drones are the typical weapon of choice, especially when the decision to kill is based on little more than profiling. Moreover, drone warfare keeps foreign policy in the shadows, impeding even the limited public debate that greets most issues of war and peace these days. It is highly unlikely the Bush and Obama administrations would have undertaken what amount to extended military campaigns in Pakistan and Yemen without drones.
This new form of warfare raises fundamental questions for what still purports to be a democratic, constitutional republic. The Constitution limits government and executive authority. International law prohibits arbitrary killing. Domestic law restricts the targeting of U.S. citizens and bans foreign assassinations in peacetime.
The authorization of force approved in response to September 11 has run its course. Most of those who “planned, authorized, committed, or aided” the terrorists, against whom the president is empowered to wage war, were killed or captured years ago. The president has inherent authority to act against imminent threats, which includes terrorists actively targeting Americans, but must obtain congressional approval for any broader campaign.
A deeper issue concerns whether “targeted killings” are legal. The Alien Tort Statute and the Torture Victim Protection Act prohibit arbitrary killing. International law, unenforceable but often cited, also aligns with traditional domestic limits on government’s power to kill its own citizens. According to traditional just-war theory, the use of force typically must be proportional—such as confronting a threat to life—and necessary, reserved as a last resort to prevent an imminent threat.
Wars, even unusual wars, should be conducted by the Armed Forces under the authority of the president as commander in chief, whereas the CIA should provide intelligence to guide targeting decisions. Of course, there may be instances when what otherwise looks like a military campaign must be kept secret, in which case Congress could authorize a covert CIA operation. Drone strikes, however, are impossible to hide. Use of drones should be subject to the same scrutiny faced by any other military intervention.
A leader of a violent terrorist group with the will and capacity to wage war against the United States is no different from a general officer commanding a foreign military formation arrayed against the United States in combat. Active membership in such a group looks a lot like being in the ranks of an opposing military. However, terrorists do not congregate on known battlefields. Leaders may make videos confirming their status, but most operatives do not.
Thus, inaccurate intelligence is the bane of this form of irregular warfare. In the name of fighting terrorism Washington has arrested innocent foreigners at home and captured even more innocent people abroad. Some of the latter were tortured and imprisoned. The fact that those improperly incarcerated can be released is cold comfort; those killed have no recourse.
The targeting process should give us pause. The New York Times reported on the regular interagency meeting that sets the administration’s kill list. President Obama was presented as thoughtful and judicious while giving a thumbs up or thumbs down on the individuals discussed. Meeting participants could dispute suggested targets, but there was no independent review of the President’s decisions.
It is essential to minimize the deaths of noncombatants. Civilians die in every war, and in World War II they were targeted for contributing to war production. However, the “War on Terror” is much narrower than war against a nation, let alone “total war.” Allowing drone strikes on those with no connection to terrorism exceeds the president’s constitutional and congressionally declared authority.
Terrorism is treated with special abhorrence because it targets innocent noncombatants. But counterterrorism is little better if it does the same. A Yemeni youth activist, Farea al-Muslimi, testified before Congress in August that the gap between the United States and Al Qaeda “has actually shrunk in the eyes of many Yemenis: there is very little difference between what the two are doing to ordinary people.”
Drones can result in “collateral damage” just like any other armament. When President Obama spoke on the issue in May, he acknowledged the “hard fact that U.S. strikes have resulted in civilian casualties” but contended that “by narrowly targeting our action against those who want to kill us . . . we are choosing the course of action least likely to result in the loss of innocent life.” However, despite drones’ reputation for accuracy, Larry Lewis with the Center for Naval Analyses concluded that in Afghanistan they were no more accurate than air attacks.
Killing noncombatants has practical consequences. Americans are hated abroad more because of what their government does than because of who they are. The issue is not whether drone strikes “work”: The routine bombing and killing of people by the United States—effectively “terrorizing” entire regions—has made many foreigners and even some Americans want to retaliate. Most will simply fume, but some will take action. Faisal Shahzad, the Pakistani-American who sought to bomb New York City’s Times Square, pointed to drone strikes and the killing of Pakistani civilians as his motivation.
How many innocents are killed? The White House acknowledges that there have been mistakes in the past, but says errors today are few. In June 2011 John Brennan, then director of the National Counterterrorism Center, claimed that, for the previous year, “there hasn’t been a single collateral death because of the exceptional proficiency, precision of the capabilities that we’ve been able to develop.”
Unsurprisingly, locals dismiss the Obama administration’s claim of immaculate assassination. Of course, people simply may not believe their neighbors are terrorists or that terrorists are doing bad. However, the New America Foundation and London-based Bureau for Investigative Journalism both estimated that 150 to 200 noncombatants died between 2006 and 2009, 20 percent or more of the total deaths. From 2004 through 2013 the BIJ figured that drones had killed between 2,500 and 3,600 people in Pakistan, between 400 and 930 of whom had been civilians. The New America Foundation estimated a lower but still substantial civilian death toll.
Even Sen. Lindsey Graham (R-SC) admitted that “Sometimes you hit innocent people, and I hate that,” while defending the use of drones. Presumably those who are killed, not to mention their families, also “hate that.”
Giving credence to critics, the White House apparently treats many civilians as terrorists by definition. The New York Times reported, “In Pakistan, Mr. Obama had approved not only personality strikes aimed at named, high-value terrorists, but signature strikes that targeted training camps and suspicious compounds in areas controlled by militants.”
The administration, the Times continued,
in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent. Counterterrorism officials insist this approach is one of simple logic: people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good.
This policy will inevitably kill innocents.
The President has exacerbated the problem by targeting domestic insurgent groups in Pakistan and Yemen. For instance, as a courtesy to the Pakistani government, the Obama administration used a drone to kill Baitullah Mehsud, head of the Pakistan Taliban. Washington rationalized that the group threatened Americans working in Pakistan.
In Yemen, reported the Washington Post, “A growing number of attacks have been aimed at lower-level figures who are suspected of having links to terrorism operatives but are seen mainly as leaders of factions focused on gaining territory in Yemen’s internal struggle.” In fact, Washington has been played by its supposed ally. A presumably embarrassed U.S. official complained to the Post that “There were times when we were intentionally misled, presumably by [then-President Ali Abdullah Saleh], to get rid of people he wanted to get rid of.”
Yet the Obama administration did not sharpen its focus even when it recently stepped up use of drones in Yemen. After claiming to have killed 38 “suspected militants,” U.S. officials admitted to the Washington Post that they had “no indication that senior al-Qaeda operatives in Yemen have been killed” or that “we’ve actually disrupted anything. What the U.S. government is trying to do here is to buy time.”
Targeting the enemies of America’s most dubious allies turns their enemies into America’s enemies. When Shahzad, the would-be Times Square bomber, arrived in his native land seeking terrorist training, the Pakistan Taliban was happy to oblige. Friends and neighbors of those killed also seek revenge. The New York Times observed that “Drones have replaced Guantanamo as the recruiting tool of choice for militants.” Last year the Washington Post reported on Yemen that “an escalating campaign of U.S. drone strikes is stirring increasing sympathy for al-Qaeda-linked militants and driving tribesmen to join a network linked to terrorist plots against the United States.”
In August author Gregory Johnsen reported that Al Qaeda in the Arabian Peninsula had more than tripled in membership since 2009. Something about Washington’s policy isn’t working. He explained that despite obvious successes there have been “tragic failures—drone strikes that went wrong and killed women and children or tribesmen who had no connection to al-Qaeda. And even the successes may breed more militants.” Retired Gen. Stanley McChrystal, who commanded U.S. forces in Afghanistan, said that “The resentment created by American use of unmanned strikes . . . is much greater than the average American appreciates. They are hated on a visceral level, even by people who’ve never seen one or seen the effects of one.”
Of course, in Washington’s view, the increased number of terrorists requires the use of more drones.
Targeted assassinations must surmount even greater legal barriers when U.S. citizens are involved. That doesn’t mean the government is barred from using drones against citizens. In fact, U.S. governments at all levels routinely kill Americans without facing legal complaints. However, the government’s discretion is more limited: Police must act under lawful authority; the threat must be imminent; use of deadly force must be a last resort; and U.S. officials are legally accountable for their actions.
The same standards should govern the use of deadly force against U.S. citizens overseas.
Reportedly, several Americans are on the Obama administration’s kill list, but the only recent cases we know of are Anwar al-Awlaki, who lived in the United States until 2002, and his son, killed in separate strikes. (The White House contended that the latter was not a target.) If the administration’s claims, reportedly detailed in a secret memo, are true, Awlaki may well have deserved his fate: He was allegedly engaged in an ongoing terrorist enterprise that had developed several plots which were only narrowly thwarted, and he could not be captured without great risk and cost.
Whatever the justification in this case, the president should not be able to compile secret kill lists with no debate, review, or oversight. Congress should compel the White House to release its target memo regarding Awlaki.
The president will always have an advantage in confronting alleged security threats. The executive branch dominates information and controls intelligence. Thus, the administration should develop internal checks and balances, including a process of independent review.
Congress should establish outside oversight as well. Facing a similar challenge from the rise of electronic surveillance, Congress passed the Foreign Intelligence Surveillance Act, which allows the government to spy on foreigners without a court order, but requires a warrant, granted by a special court, for surveillance of Americans. In practice, however, the special courts reject few warrant requests.
Congress could establish a process for targeted assassinations against U.S. citizens that involves specially trained judges who are authorized to issue time-limited but renewable assassination warrants. Then at least some republican norms would govern the president’s life-and-death decisions. In fact, in May President Obama committed to “actively engaging Congress to explore . . . options for increased oversight,” including the establishment of special courts.
The United States should also stop making so many enemies. Promiscuous meddling in other countries’ affairs has cost a great amount of American blood and treasure. Washington’s proclivity to intervene everywhere is creating more enemies and, ultimately, terrorists. If necessary, they must be killed. It would be better, however, if they simply didn’t exist. Washington should provide terrorists with fewer recruiting opportunities by adopting the “humble” foreign policy advanced more than a decade ago by candidate George W. Bush.
Before meeting his well-deserved end, Osama bin Laden successfully encouraged Americans to sacrifice their liberties and even their republic in a vain effort to guarantee their security. President Obama’s claim that he has the unrestricted power to kill anyone anywhere in the world should be a bridge too far for a free people. To paraphrase Benjamin Franklin, if Americans continue to sacrifice their liberty for security, they will end up with neither.