A lethal game of hide-and-seek

On the one hand, the United States is rightly exercised about the gruesome killings, almost certainly by government-supported thugs, of Syrians. On the other hand, the Obama administration has so greatly expanded the Bush policy of drone strikes as to leave neutral observers queasy about the legal regime governing the new tools of warfare. As in so many other aspects of human life, the march of technology has greatly outpaced the laws and institutions to regulate the behaviour they make possible.

The country that is most closely associated with targeted assassinations of its enemies in recent decades is, of course, Israel. Because of the existential threats it faces, the make-up of its geographical neighbourhood, the virulent rhetoric often directed at it, the unexpiated historical guilt over the Holocaust, and the terrorist attacks that it has been subjected to, Westerners unconvinced of the lawfulness or wisdom of the policy have nonetheless managed to live with it. But with the greater U.S. technological sophistication and the global reach of its military, the hard questions can no longer be avoided.

These silent, terrifying killers from the air are a potent, unnerving symbol of unchecked and potentially cruel and capricious American power. On September 30, 2011, Anwar al-Awlaki, an American of Yemeni descent, was killed by a U.S. drone strike somewhere in Yemen — the first instance of a U.S. citizen being the victim of a targeted assassination. Also killed in the same strike was a Pakistani-American jihadist, Samir Khan. Awlaki's 16-year-old son (that is, a juvenile) was killed in a follow-up strike some weeks later.

The New America Foundation estimates that between 1,819 and 2,808 people were killed in such strikes in Pakistan alone from 2004-end to May this year. Of these, around 80 per cent have been killed during the Obama administration. Three-quarters of those killed were claimed to be militants, a figure impossible to verify. Others claim that drone strikes kill seven times as many followers as top-level terrorists — that is, supporters and sympathisers, not ‘enemy combatants'.

Who is the enemy?

An Alice in Wonderland definition eases any lingering legal and moral concerns. The Obama administration “counts all military-age males in a [drone] strike zone as combatants unless there is explicit intelligence posthumously proving them innocent”. This is certainly convenient in claiming minimum loss of innocent civilian lives in the strikes. Little wonder that the respected Washington columnist Aaron David Miller concluded in a Foreign Policy article that “As shown through his stepped-up drone campaign, Barack Obama has become George W. Bush on steroids”.

Given the memorable record of the U.S. intelligence community on the ‘slam dunk' evidence proving Saddam Hussein's pursuit of weapons of mass destruction, one cannot but be troubled by the substitution of secretive determinations of guilt and imposition of capital punishment by intelligence-bureaucratic processes instead of open and contested judicial trials.

Unease over the policy intensified with revelations that the Obama administration has authorised so-called ‘signature strikes', in which drones can kill not just identified high-value targets, but also unknown targets based on patterns of suspicious behaviour observed from drones, electronic surveillance and on-the-ground intelligence sources.

An imperial presidency

Having criticised the Bush administration for the secret practices of surveillance, interrogation and detention, Mr. Obama has dramatically expanded the practice of secretly putting people on kill lists. Drone warfare greatly stretches the boundaries of the imperial presidency. It has expanded presidential power enormously relative to Congressional checks and judicial oversight.

It also raises the question: is the extrajudicial of killing foreigners (and Americans living abroad) following a bureaucratic determination, as Obama is doing, more or less frightening and morally condemnable than capturing them and sending them to detention and torture in Guantánamo Bay, as Mr. Bush did and Mr. Obama condemned? As with other administrations in most countries around the world, the government forgets or chooses to ignore that the expanded, unchecked power will be available to subsequent administrations.

The policy is justified on grounds of neutralising imminent threats. In a speech at Northwestern University Law School in Chicago on March 5, Attorney General Eric Holder explained that “an ‘imminent threat' incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States”.

Because of al-Qaeda's proven ability and willingness to attack with little or no notice and cause devastating casualties, he added, the President is not required “to delay action until some theoretical end-stage of planning — when the precise time, place, and manner of an attack become clear. Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed”.

This is not a definition of ‘imminent' that most scholars of international law would recognise. Mr. Holder did not address some fundamental questions: how is a threat determined? What counts as decisive evidence on determining the status of operational commander? And, how do officials conclude that arrest is not feasible? It is at least possible that drone dependency has grown owing to its convenience: it is faster, less complicated and more expedient to eliminate the enemy terrorist — as with Osama bin Laden in May 2011 — than to arrest and try him; and it reduces the risk to U.S. soldiers to zero.

But is convenience enough to justify remote-controlled war in law and international humanitarian law (IHL)? U.N. Special Rapporteur Philip Alston argues that extrajudicial killings using weapons like drones pose a challenge to international law and may constitute war crimes as intelligence agencies “do not generally operate within a framework which places appropriate emphasis upon ensuring compliance” with IHL. Moreover, “because operators are based thousands of miles away from the battlefield, and undertake operations entirely through computer screens and remote audio-feed”, they risk developing “a ‘PlayStation mentality' to killing”. In the aftermath of the terrorist attacks of September 11, 2001, adherence to human rights law, the laws of war and IHL had softened. “The result has been the displacement of clear legal standards with a vaguely defined license to kill, and the creation of a major accountability vacuum.”

In sum, there is both a legal and a strategic problem with the increasing use of drones to kill the enemy. First, “Justice as dealt out by drones cannot be reconciled with the rule of law”. Second, Sir Sherard Cowper-Coles, Britain's former special representative to Afghanistan and Pakistan, insists that drone attacks are counterproductive because of the hatred they generate.

In a now-famous memo on the war on terror on October 16, 2003, then Defence Secretary Donald Rumsfeld had posed the prophetic and critical question: “Are we capturing, killing or deterring and dissuading more terrorists every day than the madrasas and the radical clerics are recruiting, training and deploying against us?”

Cause and effect

What he did not ask was the cause-and-effect link between U.S. successes in capturing and killing terrorists and more terrorists being recruited. For the answer would have called into question the entire Iraq war rationale. It was in this sense that Sir Ivor Roberts, the British Ambassador to Italy, remarked to the annual meeting of British and Italian political leaders in Rome on September 19, 2004 that the al-Qaeda had cause to celebrate the re-election of President George W. Bush. For “Bush is al-Qaeda's best recruiting sergeant”.

In a matching vein, Faisal Shahzad, the failed Times Square bomber of May 2010, when asked about potential innocent victims of his plot, replied: “U.S. drone strikes don't see children, they don't see anybody. They kill women, children; they kill everybody.”

Last October, tribal elders from North Waziristan travelled to Islamabad to protest against the drone strikes. With them was a 16-year old boy named Tariq Khan. He did not want to return home for fear of the drones. He did and died in a drone attack four days after the Islamabad jirga.

(Ramesh Thakur is professor at the Crawford School of Public Policy, Australian National University, Canberra.)