drone strikes: the moral, political, and legal
TRANSCRIPT
Drone Strikes: The Moral, Political, and Legal Implications of the Changing
Character of War
by
Ryan Ali Khalife
A THESIS
submitted to
Oregon State University
Honors College
in partial fulfillment of
the requirements for the
degree of
Honors Baccalaureate of Arts in Political Science
(Honors Scholar)
Honors Baccalaureate of Science in Economics
(Honors Scholar)
Presented May 25, 2018
Commencement June 2018
AN ABSTRACT OF THE THESIS OF
Ryan Ali Khalife for the degree of Honors Baccalaureate of Arts in Political Science
and Honors Baccalaureate of Science in Economics presented on May 25, 2018. Title:
Drone Strikes: The Moral, Political, and Legal Implications of the Changing Character
of War.
Abstract approved:_____________________________________________________
Christopher McKnight Nichols
Drone strikes have become a defining strategy in the US War on Terror. Since the
first combat drone strike in 2001, the executive branch has intentionally increased the
deployment of drones for counterterrorism operations throughout the Middle East and
North Africa. This thesis explores the moral and legal justifications for drone strikes,
the political repercussions of strikes, and the broader implications of this new method
of warfare. It finds that while just war rationale is shared amongst various cultures,
differing proximities to strikes result in contradictory narratives. This creates a
disconnect between the domestic and international politics of strikes. Nonetheless,
drone strikes remain popular in the US because they distance Americans from the
battlefield. Such popularity has motivated the US reliance on drones, allowing for
their bureaucratic normalization. The use of drones has been defended by
interpretations of international law that permit broadly applied force given the legal
rights as well as obligations afforded during wartime. The occurrence of drone strikes
across vast geographic regions necessitates critical thought about the contemporary
utility of Just War Theory, and the appropriate role of the laws of armed conflict.
Key Words: foreign policy, drone strikes, war, Just War Theory, politics, Middle East
Corresponding e-mail address: [email protected]
©Copyright by Ryan Ali Khalife
May 25, 2018
All Rights Reserved
Drone Strikes: The Moral, Political, and Legal Implications of the Changing
Character of War
by
Ryan Ali Khalife
A THESIS
submitted to
Oregon State University
Honors College
in partial fulfillment of
the requirements for the
degree of
Honors Baccalaureate of Arts in Political Science
(Honors Scholar)
Honors Baccalaureate of Science in Economics
(Honors Scholar)
Presented May 25, 2018
Commencement June 2018
iii
Honors Baccalaureate of Arts in Political Science and Honors Baccalaureate of Science
in Economics project of Ryan Khalife presented on May 25, 2018.
APPROVED:
_____________________________________________________________________
Christopher McKnight Nichols, Mentor, representing History
_____________________________________________________________________
Hua-Yu Li, Committee Member, representing Political Science
_____________________________________________________________________
Amy Below, Committee Member, representing Political Science
_____________________________________________________________________
Toni Doolen, Dean, Oregon State University Honors College
I understand that my project will become part of the permanent collection of Oregon
State University, Honors College. My signature below authorizes release of my project
to any reader upon request.
_____________________________________________________________________
Ryan Ali Khalife, Author
iv
Acknowledgements
This thesis project was made possible thanks to the support, ideas, and feedback
from numerous friends, family, and mentors.
I would like to thank my thesis mentor, Dr. Christopher Nichols, for his continued
commitment to my work on this project. From the beginning stages, he was a critical
thinking partner and a reader of numerous drafts. Conversations with Dr. Nichols
consistently illuminated new ideas and approaches, which ultimately helped shape
direction of this thesis. His contributions to this project have been invaluable.
I would also like to thank Drs. Amy Below and Hua-Yu Li, members of my thesis
committee, for their support of this project. Both Dr. Below and Dr. Li have been
instrumental in my academic development, and their reading of this thesis provided
important feedback.
In the course of my research, I was fortunate to interview three individuals who
shared their expertise on some of my research topics. Dr. Amarah Khan discussed
Pakistani politics, and the impact of drone strikes in Pakistan. Mark Peters and Brian
Whiteside both shared their insights on the drone industry, explaining trends in drone
development and regulation. Thank you to these individuals for their time and
knowledge.
Finally, I would like to thank my parents, Maan and Traci Khalife. Their
continual support has made my work on this thesis possible.
5
Table of Contents
Introduction Page 1
Chapter 1: Just War Theory: A Historical Tradition in the Modern Context Page 10
Chapter 2: The Domestic Politics of US Drone Strikes Page 36
Chapter 3: The International Politics of US Drone Strikes Page 58
▪ Appendix A Page 81
▪ Appendix B Page 82
Chapter 4: The Legality of US Drone Strikes Page 83
Conclusion Page 109
Bibliography Page 122
1
Introduction
October 7th, 2001, was a balmy autumn day at the Langley Air Force base in
Virginia. At 12:27pm local time, the temperature was in the mid-50s and the sky was
blue.1 The chaos that ensued hardly one month prior, following the attacks of 9/11, had
now given way to a new war effort. This new war was not against a nation or singular
group, but on “terror” itself. Three weeks earlier, President George W. Bush proclaimed
before the nation, “Our war on terror begins with Al Qaeda, but it does not end there. It
will not end until every terrorist group of global reach has been found, stopped and
defeated.”2 The war had yet to commence, but Bush already warned of “a lengthy
campaign unlike any other we have ever seen.”3 On this October 7th, the first day of the
aerial campaign in the war, the US military already had Taliban Supreme Commander
Mullah Mohammed Omar in its sights.
News of this initial bombing campaign in the War on Terror hit the national
newspapers the following day. The New York Times ran a story detailing the events that
transpired. “The initial attack involved 15 American bombers, including heavy B-1 and
B-52 bombers…25 F-14’s and F/A-18’s from the aircraft carriers Carl Vinson and
Enterprise…and scores of aerial refuelers and reconnaissance aircraft.”4 Conspicuously
1 “Weather History for KLFI - October, 2001,” October 7, 2001, Weather Underground, https://www.wunderground.com/history/airport/KLFI/2001/10/7/DailyHistory.html?req_city=&req_state=&req_statename=&reqdb.zip=&reqdb.magic=&reqdb.wmo=. 2 George W. Bush, “Text: President Bush Addresses the Nation” (speech, Washington, DC, September 20, 2001), The Washington Post. http://www.washingtonpost.com/wp-srv/nation/specials/attacked/transcripts/bushaddress_092001.html. 3 Bush, “Text: President Bush Addresses the Nation.” 4 T. Shanker & Steven, L. M, “The Pentagon: Deploying Stealthy B-2’s, Military Promises Day-and-Night Bombing Campaign,” New York Times (1923-Current File), October 8, 2001, ProQuest Historical Newspapers: The New York Times with Index, http://proxy.library.oregonstate.edu.ezproxy.proxy.library.oregonstate.edu/login?url=https://search-proquest-com.ezproxy.proxy.library.oregonstate.edu/docview/92026974?accountid=13013.
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absent from the article, though, was the one aircraft that was arguably the most historic to
fly that day. The aircraft that remained unmentioned in the Times article was not
successful that day, yet nonetheless earned a place in the Smithsonian Air and Space
Museum years later.5 On October 7th, 2001, the US deployed a drone armed with a
missile into a combat zone for the first time. This new technological application emerged
at a pivotal moment, and has had far-ranging implications in subsequent US
counterterrorism and foreign policy.
Drones have been the product of decades of development, failures, and
investment. The origins of the drone date to World War I. American inventor Elmer
Sperry pitched to the military a “flying bomb,” which involved a plane aimed to travel a
certain direction and distance before hitting its target.6 This ultimately unsuccessful
weapon was similar in purpose to the manned kamikaze planes Japan used in World War
II. However, it was not until the 1980s that unmanned drones became an effective tool for
intelligence. Konstantin Kakaes, a fellow at New America, notes, “It was with Israel’s
deployment of drones in Lebanon that the various constituent technologies of drones had
matured to the point that it became possible to watch a particular person from the sky,
and then to target and kill that person.”7 Between the 1980s and early 2000s, another
critical new technology emerged: Global Positioning System (GPS) navigation. Kakaes
wrote, “With this [GPS] innovation the problem of navigation was, for all intents and
5 Chris Woods, “The Story of America's Very First Drone Strike,” The Atlantic, May 30, 2015. https://www.theatlantic.com/international/archive/2015/05/america-first-drone-strike-afghanistan/394463/. 6 Konstanin Kakaes, “From Orville Wright to September 11,” in Drone Wars, ed. Peter Bergen and Daniel Rothenberg (New York: Cambridge University Press, 2015), 361-362. 7 Kakaes, 374-375.
3
purposes, solved.”8 Drone technology had matured by the dawn of the War on Terror to
the point where drones could be an effective weapon of war.
The term “drone” is itself neither an accurate nor a technical term. Remotely
Piloted Vehicle (RPV) and Unmanned Aerial Vehicle (UAV) are two terms that better
describe the type of aircraft in question. When considering the remotely stationed pilot
and all the technology associated with the aircraft, the term Unmanned Aerial System
(UAS) is applicable. Among these names, RPV is most appropriate because it specifically
refers to aircraft that are piloted by an individual in a remote location. Completely
autonomous aircraft are not presently used by the US military to conduct strikes, which is
why the word “unmanned” can be misleading in this context. Nonetheless, “drone” has
entered the public lexicon. Merriam-Webster claims that drone was first used in relation
to an aerial vehicle in 1946—a reference to both the monotonous noise emitted and its
likeness to the mindless male bee.9 In recent years, unmanned aircraft ranging in size and
function from commercially sold quadcopters to the armed Predator have been called
drones. Although the word drone lacks specificity, it is used widely by the public and
policymakers alike. For the sake of consistency and simplicity, this thesis will hereafter
refer to UAVs, UASs, and RPVs as drones.
Drones are a subject worthy of examination because they are not merely a weapon
of war, but are catalyzing a changing character of war. Carl Von Clausewitz, the
prominent 19th-century military theorist, famously proposed that the nature of war is
fixed, while the character of war changes over time. He explained features of war’s static
8 Kakaes, 378. 9 “Drones Are Everywhere Now: But How Did They Get Their Name?” Merriam-Webster, https://www.merriam-webster.com/words-at-play/how-did-drones-get-their-name.
4
nature, noting, “The invention of gunpowder and the constant improvement of firearms
are enough in themselves to show that the advance of civilization has done nothing
practical to alter or deflect the impulse to destroy the enemy, which is central to the very
idea of war.”10 Similarly to the past technological advancements Clausewitz referenced,
armed drones do not change the objective of destroying the enemy in combat. While
drones have the potential to be a precise means of war, violence remains essential to the
nature of war. However, drones are also spurring noteworthy changes in the character of
war—transforming the way war is fought. These shifts challenge existing understandings
and rules of war, demanding further consideration.
The unfamiliarity many have with drone strikes leads people to reevaluate broader
questions about war. Because US drone strikes have occurred in 7 nations, they provoke
thought about the geographic boundaries of war. Because US drone strikes kill some
number of innocent civilians, it forces people to consider the extent of collateral damage
that they believe is justified in war. And because drone strikes remain exclusively in the
realm of government, it prompts questions about the proper limits of governmental
authority. As religious and political scholar David True ponders, “Why are we fighting?
While this issue extends beyond their [drones] deployment, drones are at the core of these
questions and have come to stand for multiple issues associated with national security.”11
Any study of drones in war inevitably prompts thought on these related issues.
This thesis endeavors to identify and analyze the reasons for the increasing
reliance on drone strikes in US efforts in the War on Terror. To answer the question of
10 Carl Von Clausewitz, On War, Edited and translated by Michael Howard and Peter Paret (Princeton: Princeton University Press, 1976), 76. 11 David True, “Disciplining Drone Strikes,” in Drone Wars, ed. Peter Bergen and Daniel Rothenberg (New York: Cambridge University Press, 2015), 292.
5
why drones are so regularly deployed, relevant moral, political, and legal considerations
are examined: How and when is the use of drones considered just? Why have recent US
Presidents embraced the use of drone strikes in rhetoric and in practice? What are the
political implications—both domestic, and international—of drone strikes? What is the
legal basis for drone strikes, and how do drones challenge existing laws? These questions
do not constitute a comprehensive list of concerns, but they probe the rationale behind
drone strikes. To address these questions in this thesis, the application of Just War Theory
to drones is examined, the domestic and international political implications of drone
strikes are explored, and the legal and policy framework constructed to support and
continue the drone strike program is analyzed.
Chapter 1 begins with discussion of Just War Theory. Analyzing the historical
development of Just War Theory provides context about how people arrived at present-
day just war principles. Consideration is paid to the development of Just War Theory in
both the Christian and Islamic religious traditions to illustrate how different religions
have independently cultivated scholarship and critical thought on this matter. Primary-
source works from prominent Just War thinkers, such as Cicero, St. Augustine, and
Thomas Aquinas, are referenced to understand just war history. This chapter also builds
on the work of contemporary scholars such as David Kennedy and Michael Walzer, who
have studied the relationship between law, war, and morality. Their broader ideas about
justice and war are then applied specifically to drone strikes. The influence of Just War
Theory on Obama’s foreign policy worldview is also argued. While most people may not
be versed in the language of Just War Theory, this chapter seeks to explain how just war
ideas have shaped the way many conceive of war. These just war considerations are
6
relevant because discussion about the legitimate use of drone strikes in war provokes
explicit or implicit thought about just war principles. Accordingly, Just War Theory
serves as a foundation—albeit an imperfect one—for more practical debates about war.
Chapter 2 analyzes US domestic politics, and its influence on US counterterrorism
and drone strike decisions. Tracing the contours of post-9/11 US political trends, the
foreign policy preferences of the American public is explained. Tracking public opinion
polls through this period sheds light on the public’s fluctuating support for war, and its
prioritization of national security in relation to other areas of concern. To measure public
opinion, this section refers to polls from the Pew Research Center and Gallup. The work
of contemporary political scientists, such as John Mueller and Helmut Norpoth, is applied
to explain the meaning and significance of public opinion trends. These resultant political
trends arguably informed Obama’s decision to frequently deploy drones while
simultaneously deescalating other war efforts. As drone strikes continued throughout
Obama’s presidency, the US public expressed steady and substantial support for their use.
This supportive majority was complemented by a somewhat smaller grouping of critics
coming from both sides of the aisle. Such conflicting opinions came to a head in 2013,
when influential adviser to Obama’s drone program, John Brennan, faced a Senate
confirmation for the role of CIA director. Understanding the domestic politics of drone
strikes illustrates why they remained popular during a time when general support for war
was deteriorating.
Chapter 3 studies the corresponding public opinion and politics of drone strikes in
the international context. Attention is paid to Pakistan, as it is an example of a country
that has been regularly targeted by strikes for more than a decade. Pakistani public
7
opinion is illustrated by Pew polls and first-hand accounts from tribal regions. These
public sentiments are mapped on to important moments and changing trends in US-
Pakistani relations. The overwhelming opposition from Pakistanis to drone strikes is
examined, as are the consequences this has had on Pakistan’s politics. The primary
reasons for this opposition to drones are attributed to civilian casualties and concerns
about national sovereignty. Analyzing civilian casualty data—done by comparing US
government data to that compiled by non-governmental organizations and local news
accounts—illustrates the inconsistencies surrounding drone strike information. These
inconsistencies lead to differing conclusions about the justice and utility of strikes. Such
conflicting conclusions have been voiced at the global level, as nations have staked out
stances on drone strikes within bodies of the United Nations (UN). The effect of these
international reactions is a general decreased trust of the US, and a disconnect between
American diplomatic and military measures.
Chapter 4 explores the legal considerations relevant to drone strikes. Beginning
with an examination of the historical origins of international law, the influence of just
war ideas on international law is illustrated. Legal analyses of drone strikes, however,
produce more questions than they answer. Foundational matters, such as the very
applicability of the laws of war, remain subject to debate because the War on Terror lacks
a defined battlefield. Killing in war—assuming it is discriminate and proportionate—is
permitted under international law. However, can drone strikes occurring outside areas of
active hostilities be considered legal acts of war? Legal analyses of drone strikes are
further complicated by the overlap of domestic and international law. While US laws are
not explicitly at odds with international law, they demand consideration of due process
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protections and Congressional approval. The application of domestic law is especially
important when US citizens are targeted in strikes, as occurred in the case of Anwar al-
Awlaki. This chapter concludes by examining the Obama administration’s legal
justifications for drone strikes, as codified in the Presidential Policy Guidance (PPG) and
Office of Legal Counsel (OLC) memorandums. Despite the administration’s emphasis on
the legality of US drone strikes, it is problematic that the executive branch has
simultaneously created policies for authorizing drone strikes while also interpreting laws
to justify these policies.
This thesis structure lends itself well to identifying and explaining the different
factors that have influenced the short history of US drone strikes, allowing for pivotal
moments in this history to be highlighted, and for general critiques and conclusions to be
made. This is accomplished by layering the chapters so each analyzes drone strikes
through a unique lens. Each chapter accordingly emphasizes different aspects of drone
strikes, while the conclusion of the thesis ties the various ideas together and raises future
implications. However, this structure also presents limitations. Such a broad examination
of US drone strikes precludes the ability to conduct in-depth analysis into each individual
nation where strikes have been carried out. The situations in each of the seven countries
that have experienced US strikes are certainly unique, but this thesis does not
comparatively analyze these differences. Another limitation stems from the inherent
secrecy that surrounds national security matters. Declassified and redacted drone memos
are referenced, but there are undoubtedly many other relevant policies that remain
classified and inaccessible. In addition to secrecy, there is also much conflicting
information about the number of strikes and the casualties they cause. This project does
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not endeavor to determine which numbers constitute fact, but rather seeks to weigh the
competing claims and explain reasons for discrepancies.
Comprehensively explaining the application of morals, politics, and laws to US
drone strike would take volumes. This project cannot accomplish that ambitious
objective, but it does seek to draw connections between these different lenses of analysis.
It is important to understand how this emerging technology of war fits within existing
conceptual frameworks, and how it will also challenge these frameworks. The character
of war does not remain static, so thought must be given to the implications of change.
Development of drone technology will only continue to accelerate, so it will become
ever-more important to understand acceptable use and limitations of drones. The
precedents set in the War on Terror regarding drone strikes will remain influential in
future years, which demands consideration of both its merits and pitfalls.
10
Just War Theory: A Historical Tradition in the Modern Context
Lying within the long history of armed conflict, drone warfare is a relatively new
means of waging war. Armed conflict has been recurring throughout human history, and
for presumably just as long, people have theorized about war’s nature, character,
necessity, and alternatives. Leaders involved in war consistently employ arguments
demonstrating the justness of their cause—making public cases that their impetus for war
was reasonable. Numerous theories of war and peace have subsequently been
constructed, but Just War Theory has been one of the most enduring. Just War Theory
provides a framework through which questions about the justness of war can be analyzed.
This theory has shaped the way in which war is conceived and justified, and how war is
therefore regulated. Such regulations have been codified in widely-accepted laws of
armed conflict. Yet, applying Just War Theory to any type of conflict is not simple. No
singular text represents the formation of Just War Theory, nor can it be attributed to any
one person, group, or school of thought. Rather, Just War Theory has been developed
over the course of centuries, and has consequently been subject to the religious and
political influences of the times.
Just War Theory instructs that war can be justified only if it is initiated for a just
cause, fought in a just manner, and seeks just goals. These three components of Just War
Theory are respectively known as jus ad bellum, jus in bello, and jus post bellum. This
represents an ideological middle ground between the poles of pacifism and militarism.
Rather than arguing whether the use of force is moral or immoral, Just War Theory
directs that force should only be employed in situations that meet certain conditions.
Much debate has accordingly arisen regarding the details and applications of Just War
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Theory, but the three principles of jus ad bellum, jus in bello, and jus post bellum have
remained present over time.
While Just War Theory may seemingly promote peace and justice, it does not
necessarily prevent conflict. Instead, it stipulates when, how, and why to fight war. In the
contemporary context, Just War Theory remains relevant because it is the framework
through which many national leaders and everyday citizens conceive of war. Its
principles have become ingrained in both societal norms and law. This chapter will
provide a brief history of Just War Theory, apply this theory to drone warfare, analyze its
influence on President Obama’s worldview, and will offer criticisms of the theory in the
modern context.
Western Origins of Just War Theory
The foundations of Just War Theory are deeply intertwined with Christianity, but
do not derive directly from the scripture itself. Rather, the prevailing understanding of
Just War Theory is a synthesis of the work of prominent philosophers, theologians, and
academics. Presently, it is most often interpreted and referenced by humanitarians,
lawyers, politicians, and military leaders. Nonetheless, Just War Theory in the Western
world is commonly considered an exclusively Christian tradition. This is somewhat of an
ethnocentric assumption in that it excludes analogous just war traditions coming from
other parts of the world, while also muddying the history of the Western Just War
tradition. Cicero, who lived from 106 BCE to 43 BCE, is considered a founding father of
the Western Just War tradition. In his influential written dialogue, Republic, Cicero
asserts that “no just war can be waged except for the sake of punishing or repelling an
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enemy… no war is deemed to be just if it has not been declared and proclaimed, and if
redress has not previously been sought.”12 This constitutes an early definition of jus ad
bellum. Cicero’s work laid a theoretical foundation for Just War Theory by distinguishing
certain conditions that were necessary for a just war. The independent development of
Just War Theory from Christianity is also demonstrated, because Cicero’s life predated
Christianity.
As an agent of the Roman Empire, it was the interests of Rome that likely had the
greatest influence on Cicero’s writings. In Republic, Cicero privileges the role of the
state. Cicero attributes to Laelius—a participant in the dialogue—the claim that “a state
should be organized in such a way as to last for ever. And so the death of a state is never
natural…when a state is destroyed, eliminated, and blotted out, it is rather as if (to
compare small with great) this whole world were to collapse and pass away.”13 This
privileged position of the state could not be a component of early Christian Just War
tradition. Early Christians were persecuted by the Roman Empire, so granting a state the
authority to wage war would have been self-destructive. Charles Amjad-Ali of the Luther
Seminary noted, “It takes the church well over 300 years to even imply some sort of just
war concept as a part of its doctrinal, theological and ethical concern.”14 While Cicero
made important contributions to the development of Just War Theory, aspects of his
formulation are accordingly self-serving. For instance, as noted by the bishop Craig J. N.
de Paulo and philosophy professor Patrick Messina, “Cicero also considered the quest for
12 Cicero, Marcus Tullius, and Niall Rudd, The Republic and The Laws, Oxford World’s Classics (Oxford: Oxford University Press, 1998), ProQuest Ebook Central, 119. 13Cicero, Marcus Tullius, and Niall Rudd, The Republic and The Laws, 119. 14 Charles W. Amjad-Ali, “Jihad and Just War Theory: Dissonance and Truth,” Dialog: A Journal Of Theology 48, no. 3 (Fall 2009): 239-247, Academic Search Premier, EBSCOhost, 239.
13
empire justifiable so long as it secured a pax Romana for the greater and common
good.”15 Such a pursuit of empire is no longer considered just, evidencing both the
evolution of conceptions of justice and Cicero’s deference to the ambitions of Rome.
Cicero was succeeded by others who further developed Just War Theory and
explicitly linked it to Christianity. St. Augustine of Hippo, living in the 4th century, was
one of the most prominent Christian Just War thinkers. Augustine’s interpretation of
Christianity led him to emphasize the importance of internal motivations and the
salvation of others. A just war should correspondingly be divinely motivated—a method
of righting the evils of the world. Augustine wrote, “When war is undertaken in
obedience to God, who would rebuke, or humble, or crush the pride of man, it must be
allowed to be a righteous war.”16 However, in Augustine’s focus on internal morality and
obedience to God, his writings seem to neglect the physical pain inflicted by war.
Religious scholar John Langan notes that Augustine “is really interested in the
preservation of a moral order which is fundamentally a right internal order of dispositions
and desires and in which the question of whether action is violent or not is not
fundamental.”17 By deemphasizing the violence of action, Augustine overlooks
individual concerns.
Individuals generally prioritize their own safety and security, and are less
concerned about the broader moral order of the world. Yet, Augustine did not identify
self-defense as a just cause for war. Contemporary scholars assert that Augustine’s belief
15 Craig J. N. de Paulo, Patrick A. Messina and Daniel P. Tompkins, eds., Augustinian Just War Theory and the Wars in Afghanistan and Iraq: Confessions, Contentions, and the Lust for Power, (New York: Peter Lang Publishing Inc., 2012), ProQuest Ebook Central, 24. 16 John Langan, “The Elements of St. Augustine's Just War Theory,” The Journal of Religious Ethics 12, no. 1 (1984), 22. 17 John Langan, “The Elements of St. Augustine's Just War Theory,” 25.
14
was “that since one’s own life is something that can be taken away against one’s will, it is
not worth killing to preserve it.”18 The essence of Augustine’s theory is that anything not
in one’s own hands is in the hands of God, and people should thus not interfere with
God’s work—even if that means risking personal safety. This interpretation of Just War
Theory is no longer widely held. It has been largely replaced by the Hobbesian view
expressed in Leviathan, supporting the “Liberty each man hath, to use his own
power…for the preservation of his own Nature; that is to say, of his own Life.”19 Hobbes
thus places self-defense at the forefront of the justifiable use of force. Augustine’s
interpretation of Just War Theory is not merely influenced by his Christianity, but is
rather an extension of his Christianity, as his religious views seem to fully inform his
views on war.
In the 13th century, Thomas Aquinas succeeded Augustine in the succession of
prominent Just War Theory philosophers. His writings on Just War brought
understanding of this topic closer to the present-day formulation of Just War Theory.
Aquinas’ famous text, Summa Theologiae, devotes a section to Just War. In this, he lays
out three necessary conditions for a war to be just: war must be waged by a proper
sovereign authority, war must be waged for a just cause, and war must be waged with
ultimate intention of peace.20 These components—borrowing from the work of his
predecessors—constitute a broad framework of Just War Theory. Aquinas delineates the
guidelines for how a war may be just, but maintains that clerics should not partake in
18 Craig J. N. de Paulo, Patrick A. Messina and Daniel P. Tompkins, eds., Augustinian Just War Theory and the Wars in Afghanistan and Iraq: Confessions, Contentions, and the Lust for Power, 29. 19 Thomas Hobbes, Leviathan (Project Gutenberg Ebook, 2009), Chapter XIV. 20 Thomas Aquinas, “Summa Theologiae,” (Question 40, Second Part of the Second Part) Second and Revised Edition, 1920, Literally translated by Fathers of the English Dominican Province, New Advent, http://www.newadvent.org/summa/index.html.
15
war—regardless of whether it is just. He wrote, “clerics may, by the authority of their
superiors, take part in wars, not indeed by taking up arms themselves, but by
affording spiritual help to those who fight justly.”21 What Aquinas is doing, according to
political scientist Gregory Reichberg, is simultaneously validating just war and
evangelical nonviolence.22 Aquinas’ argument is not that fighting in war is wrong, but
that those who are devoted to the work of God have a purpose that is higher than fighting.
This differentiation between the clergy and laymen allow each to act as they must, while
protecting the church from becoming too embroiled in conflicts. This was a step towards
a more secularized Just War Theory, which has allowed scholarship on just war to
advance while the role of the Church has minimized within society.
Islam and Just War Theory
The aforementioned philosophers of Just War Theory have been instrumental in
its development in the Western context. However, one would be remiss to assume that
Just War Theory is an exclusively Western idea. In fact, Amjad-Ali writes that “the just
war theory in Islam has its roots much earlier in the tradition than Christianity.”23 Islam’s
Just War tradition is the only non-Western Just War tradition explored in this paper
because it is most applicable to the regions that drone strikes occur. However, this does
not mean that other religions lack their own analogous Just War traditions. To better
21 Thomas Aquinas, “Summa Theologiae,” (Question 40, Second Part of the Second Part) Second and Revised Edition, 1920, Literally translated by Fathers of the English Dominican Province, New Advent, http://www.newadvent.org/summa/index.html. 22 Gregory M. Reichberg, "Thomas Aquinas Between Just War and Pacifism.” The Journal of Religious Ethics 38, no. 2 (2010): 238. 23 Charles W. Amjad-Ali, “Jihad and Just War Theory: Dissonance and Truth,” Dialog: A Journal Of Theology 48, no. 3 (Fall 2009), Academic Search Premier, EBSCOhost, 239.
16
understand how many people in targeted areas view drone strikes, it is necessary to
understand how Just War is commonly conceptualized in these areas.
Islamic Just War literature contains many similarities to the Christian tradition,
but the development of the two theories over time has not occurred in tandem. Charles
Amjad-Ali’s article entitled “Jihad and Just War Theory: Dissonance and Truth,” argues
that Islamic Just War tradition emerged early because governing territory and engaging in
conflicts were aspects of early Islamic history. These real-world conditions necessitated
consideration of the topic. Political scientist Ron Hassner noted, “Unlike Christian just
war theory, which was designed for employment in conflicts between Christian rivals
only and could be disregarded when facing a Muslim opponent, Muslim just war theory
was designed to regulate Islam's wars of expansion.”24 This assertion illustrates how the
development of Just War ideas is often a response to and justification for the world in
which people live. Like Cicero, early Muslims lived in a polity that intended to expand,
and this was reflected in the ideas they produced.
These wars of Islam’s early expansion were constrained, however, by religiously-
inspired teachings. Islamic scholar Liyakat Takim notes, “The Qur'an originated in the
multicultural milieu of seventh century Arabia,” and accordingly emphasized coexistence
with those outside of the faith. 25 The Qur’an encourages non-believers to find the way of
God, but by and large does not advocate for differential treatment of non-believers. Early
Islamic scholarship also differs from Augustine’s formulation of Just War in that there is
greater justification for wars of self-defense, and less validation of wars meant to correct
24 Ron E. Hassner, “Islamic Just War Theory and the Challenge of Sacred Space in Iraq,” Journal Of International Affairs 61, no. 1 (Fall/Winter 2007), Academic Search Premier, EBSCOhost, 135. 25 Liyakat Takim, “Peace and War in the Qur'an and Juridical Literature: A Comparative Perspective,” Journal of Sociology and Social Welfare 38, no. 2 (2011), 140.
17
sinful behavior. “The Qur'an suggests that jihad is a product of defense against
aggression rather than initiation of hostilities against enemies (22:39-40),” writes
Takim.26 While deviating from Augustine’s ideas, these aspects of Islamic Just War
Theory align more closely to Hobbes and contemporary understandings of Just War
Theory.
Like any well-known theory, Islamic Just War Theory has been interpreted in a
variety of ways—occasionally perverting original interpretations beyond recognition. The
word “jihad” is perhaps the best example of a concept that has drastically shifted in
meaning over time. In the Qur’an, this term implies a struggle—though not necessarily a
physical struggle. Sohail Hashmi, scholar of Islamic ethics and politics, wrote of the
development of the word’s meanings. “In the Meccan period of revelation (610– 622),
jihad appears in the Qur’an in a purely metaphysical sense; there is no implication that it
may be manifested as war.”27 In the present context, however, it is associated with
extremism and holy war. This ahistorical interpretation comes from the multitude of ways
religious texts can be interpreted. There are verses of the Qur’an that connect jihad with
violence, but not in terms of unrestricted holy war. Quranic theologian Muhammad Asad
cautioned that “every verse of the Qur’an must be read and interpreted against the
background of the Qur’an as a whole.”28 Thus, reading specific verses without context
can distort their meaning.
26 Liyakat Takim, “Peace and War in the Qur'an and Juridical Literature: A Comparative Perspective,” Journal of Sociology and Social Welfare, 143. 27 Sohail H.Hashmi, ed. Just Wars, Holy Wars, and Jihads: Christian, Jewish, Muslim Encounters and Exchanges. Cary: Oxford University Press, Incorporated, 2012, ProQuest Ebook Central, 9. 28 Charles W. Amjad-Ali, “Jihad and Just War Theory: Dissonance and Truth,” Dialog: A Journal Of Theology 48, no. 3 (Fall 2009), Academic Search Premier, EBSCOhost, 246.
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Despite controversy around jihad, less-debated components of Islamic Just War
Theory have been incorporated into international law. Muhammad al-Shaybani, an author
of the Hadith—a famed collection of accounts of the Prophet Muhammad—wrote on
protections for sacred places. “According to the International Committee of the Red
Cross, Shaybani's prohibitions on the destruction of monasteries and churches during
war…provided one source for the 1954 Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict.”29 Other concepts in Islamic writings that have
been integrated into international laws include non-combatant immunity, treatment of
war prisoners, and proportional response.30 The development of Islamic Just War Theory
has not followed the same trajectory as Christian Just War Theory, but the two should not
be understood as completely separate ideas. Both draw heavily off their respective
religious texts in the attempt to justify and rationalize violent conflicts. In analyzing wars,
it is important to understand that nearly all involved parties adhere to some moral code,
even if such codes differ.
The historical development of different branches of just war thought sheds light
on divergent present-day interpretations. The Western Just War tradition predates
Christianity, but has undoubtedly been greatly influenced by Christian ideas about
morality. In more recent centuries, however, Western Just War thinking has become more
secularized. This has led to debate about the degree of Christian influence in present-day
Just War Theory and international law. In the Islamic tradition, Just War Theory arose
out of the necessity of governing a state and its conflicts. Hashmi writes, “For Islam, the
29 Ron E. Hassner, “Islamic Just War Theory and the Challenge of Sacred Space in Iraq,” Journal Of International Affairs, 137. 30 Liyakat Takim, “Peace and War in the Qur'an and Juridical Literature: A Comparative Perspective,” Journal of Sociology and Social Welfare, 142-143.
19
problem is how to deal with domestic and international politics and law from the
perspective of a religious community deeply involved in political life from the first and
whose own legal tradition developed a very different conception of political community
and world order.”31 While Christian Just War Theory developed largely separate from
political life, in Islam the two developed in closer tandem. In both faiths, this leads to the
present-day challenge of how to interpret both faith and law, when the two are separate
yet related. The just war teachings of each faith are similar due to their shared Abrahamic
roots, but the contexts in which they developed have given rise to different applications.
Just War Theory in the Modern Context
Present-day drone warfare confronts Just War Theory with many new challenges.
The seemingly obvious distinction between war and peace is often unclear, muddying the
very applicability of Just War Theory. Drone warfare occurs in an ill-defined battlefield,
against an array of enemy actors, and with great variance in frequency and
destructiveness of strikes. Some areas are the target of a singular drone strike, while other
areas may experience repeated strikes. These unique implications of drone warfare
require Just War principles be reinterpreted in the contemporary context.
The question of what geographic regions or nations are considered warzones is at
the forefront of such Just War considerations. The Obama administration carried out
drone strikes in “six countries across Central and South Asia, North Africa, and the
Middle East” in early 2016 alone.32 The list of regions targeted evidences the disparate
31 Sohail H.Hashmi, ed. Just Wars, Holy Wars, and Jihads: Christian, Jewish, Muslim Encounters and Exchanges. Cary: Oxford University Press, Incorporated, 2012, ProQuest Ebook Central, 414-415. 32 Jameel Jaffer, The Drone Memos (New York: The New Press, 2016), 2.
20
nature of an aerial counterterrorism campaign. Such regular drone strikes in countries
spanning two continents has made the warzone of the War on Terror simultaneously
discontinuous and ill-defined. 18th-century German philosopher Immanuel Kant wrote in
his essay, Perpetual Peace: A Philosophical Sketch, that “the natural state is one of war.
This does not always mean open hostilities, but at least an unceasing threat of war.”33 By
such a definition, the battlefields that targeted drone strikes play out on certainly meet the
standard of a war. Many regions in the Middle East may not experience open hostilities,
but they are nonetheless subject to the fear that a drone strike or act of terror is imminent.
Hobbes supports this view, noting that war exists “during all the time there is no
assurance to the contrary.”34 The most practical distinction between war and peace in the
contemporary context is probably provided by the contemporary political theorist,
Michael Walzer. He writes that “what is war and what is not-war is in fact something that
people decide.”35 Thus, what constitutes war is less a matter of legal distinction than the
way people interpret violence. If people assign meaning to violence that makes it war,
then it is war. With this definition in mind, drone warfare certainly constitutes a form of
war. People generally interpret targeted drone strikes as a tactic that is part of the broader
War on Terror, rather than a police function targeting specific terrorists.
The morality of drone warfare is complicated by the fact that jus ad bellum
considerations for US war efforts in the Middle East do not focus on a singular enemy.
The terrorist attacks of September 11th, 2001, catalyzed the US to declare a War on
Terror on the groups responsible for the attacks. Yet, the Authorization for the Use of
33 Immanuel Kant, Perpetual Peace: A Philosophical Sketch, 1795, Mount Holyoke, https://www.mtholyoke.edu/acad/intrel/kant/kant1.htm. 34 Thomas Hobbes, Leviathan (Project Gutenberg Ebook, 2009), Chapter XIII. 35 Michael Walzer, Just and Unjust Wars, Fourth ed. (New York: Basic Books, 2006), 24.
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Military Force (AUMF) passed in response to 9/11 was purposefully broad in defining
the enemy. It permitted force against “those nations, organizations, or persons he [the
President] determines planned, authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organizations or persons.”36 With a
compelling case of self-defense following 9/11, the US met the jus ad bellum criteria to
respond to the attacks. The AUMF served as a formal declaration of conflict by a
legitimate state authority, which provided the US effort with credibility.
However, the justness of the US cause was obscured by the 2002 Authorization
for the Use of Military Force Against Iraq and the evolving nature of terror groups in the
Middle East. The preemptive declaration of force against Iraq stretched the notion of self-
defense. Walzer states, “The cause [of the Iraq War] was regime change, directly—which
means that the US government was arguing for a significant expansion of the doctrine of
jus ad bellum.”37 In the US fight against ISIL and other terror groups, the government has
argued for a broad interpretation of the 2001 AUMF, asserting that it still operates as an
applicable declaration of war. Yet, ISIL did not exist at the time of 9/11, many of its
fighters were young children on 9/11 and thus wholly uninvolved, and al-Qaeda has
publicly separated itself from ISIL.38 The US has targeted numerous terror groups—al-
Shebaab (Somalia), al-Qaeda in the Islamic Magrheb (Libya), al-Qaeda in the Arabian
Peninsula (Yemen)—that are loose affiliates of al-Qaeda, but which likely played no role
in the planning or execution of 9/11. While the US War on Terror began in accordance
with Just War principles, it is difficult to argue that the same jus ad bellum considerations
36 Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001). 37 Michael Walzer, Just and Unjust Wars, Fourth ed. (New York: Basic Books, 2006), xiii. 38 Colin Dueck, The Obama Doctrine: American Grand Strategy Today (New York: Oxford University Press, 2015), 52.
22
from 2001 still apply in 2017. Targeted drone strikes emerged as a military strategy years
after the 2001 AUMF, so the justness of drone strikes is temporally removed from the
initiation of the wars.
The justness of one’s cause in war is contingent not only on why that actor is
waging war, but also who that actor is, and what legitimacy they have. Aquinas placed
war waged by a legitimate sovereign authority as his first condition for a just war.39 The
term “legitimate sovereign authority” is often misunderstood to merely mean any state
actor, though. Aquinas opined that a sovereign was necessary to wage war because “it is
not the business of a private individual to declare war, because he can seek for redress of
his rights from the tribunal of his superior.”40 States, on the other hand, have nowhere to
reliably seek redress for their grievances.41 Thus, war is the space in which these
grievances are often addressed. War is a public matter, which means that it should not
simply be carried out by sovereign state actors—it should also be carried out with the
consent and knowledge of the citizens involved. A state actor that has little legitimacy
amongst its citizens, such as Syria’s government under Bashar al-Assad, has a weakened
position when arguing its authority to declare war because it lacks the consent of the
governed. Democratic governments typically have more legitimacy in the eyes of their
citizens because the citizenry can demand accountability. However, such accountability is
not present when the public is uninformed about an issue.
39 Thomas Aquinas, “Summa Theologiae,” Second and Revised Edition, 1920, Literally translated by Fathers of the English Dominican Province, New Advent, http://www.newadvent.org/summa/index.html. 40 Thomas Aquinas, “Summa Theologiae,” (Question 40, Second Part of the Second Part) Second and Revised Edition, 1920, Literally translated by Fathers of the English Dominican Province, New Advent, http://www.newadvent.org/summa/index.html. 41 When Aquinas lived, international organizations that could mediate inter-state conflicts (e.g. the United Nations) did not exist. While such organizations presently exist, their efficacy is hindered by the political interests of member-states, and they are often unable to mediate issues to the satisfaction of involved parties.
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Drone warfare demands fewer sacrifices from the citizenry than previous forms of
warfare, allowing citizens of the nation leading strikes to be more unaffected and
uninformed about the developments of war. David Kennedy, a scholar of international
law at Harvard, commented that in recent history, warfare has become “the project of the
government, not the society.”42 While Kennedy argues that it is primarily the laws of
armed conflict which have led the practice of war to be relegated to a small realm of
government professionals, technology has also had a similar effect. A combination of
ignorance about US involvement abroad, belief in the desirability of new technologies,
and the complexity of modern war technology have resulted in few Americans
understanding drones and their role in war. This is evidenced by the incorrect
assumptions most Americans have about drones—for instance, that they are more precise
and less constrained by law than manned aircraft.43 Wars that are primarily fought and
debated by only a small group of military and government professionals are less public in
nature. A lack of consent and knowledge of war among the citizenry threatens a state’s
status as a legitimate sovereign authority.
The absence of drone warfare from public discourse in the US is a product of the
highly specialized manner that drone warfare is waged. The specialization demanded by
drone technology has necessitated the military to employ professionals who know more
about computer programming than military strategy. These experts develop drone
technology, analyze intelligence, visually map potential strike targets, and operate drones
during strikes. This division of labor is such that many people who work in the field are
42 David Kennedy, Of War and Law, (Princeton: Princeton University Press, 2006), 64. 43 Jacquelyn Schneider and Julie Macdonald, “U.S. Public Support for Drones Strikes,” Center for a New American Security, September 20, 2016, https://www.cnas.org/publications/reports/u-s-public-support-for-drone-strikes.
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never required to consider broader moral implications. In fact, 60% of influential drone
technologists surveyed found no “‘social, ethical or moral problems with the continued
development of unmanned systems.’”44 In their work, there is little to no direct
connection between the drones they develop and their use in war. Such specialization
occurs at multiple levels. Targeted drone strikes have compelled the creation of a
completely new position within the military: “targeteers.” These professionals “study 3-D
computer models as they calibrate the angle of attack.”45 The detailed process of planning
a strike can thus resemble the designing of a video game.
The danger of such specialization is illustrated by the phenomena 20th-century
political theorist Hannah Arendt labelled “the banality of evil.”46 Arendt claimed that
those who commit wrong are not necessarily bad people, but conversely people who have
been conditioned to do regimented tasks that perpetuate evil within a much larger system.
As Arendt scholar Simon Swift explains, “The doing of evil deeds in the modern
world…had become institutionalised, depersonalised and mundane.”47 While a targeted
drone strike program is not necessarily evil nor bad, it nonetheless detaches the act of
killing in war by dividing it into a series of specialized tasks.
The ability to exert force from a distance is not a new moral dilemma presented
by drones, but drones have furthered the delivery of force from warzones more than ever
before. Legal scholars Samuel Issacharoff and Richard Pildes note, “The history of
44 P.W. Singer, “The Five Deadly Flaws of Talking About Emerging Military Technologies and the Need for New Approaches to Law, Ethics, and War,” in Drone Wars, ed. Peter Bergen and Daniel Rothenberg (New York: Cambridge University Press, 2015), 218. 45 Azmat Khan and Anand Gopal, “The Uncounted,” The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html?_r=0. 46 Hannah Arendt, Eichmann in Jerusalem: a report on the banality of evil (New York: Penguin Books, 1994). 47 Simon Swift, Hannah Arendt (London: Taylor & Francis Group, 2008), ProQuest Ebook Central, 99.
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military technology has always focused on the ability to deliver lethal force from a
distance.”48 Thus, drones are simply the latest iteration in a long line of military
innovation. However, drone strikes are the most targeted and discriminate attacks that can
be carried out far from a warzone. Those operating drones face no physical risk in their
work, while other populations live in fear of being subjected to unexpected drone strikes.
Fear of drone strikes is not merely hypothetical—it has been evidenced in a study
commissioned by researchers at Stanford and New York University that examined the
effect of US drone strikes on Pakistanis. “[Drones] presence terrorizes men, women, and
children, giving rise to anxiety and psychological trauma among civilian communities.”49
In contrast, philosophers have warned of the potentially “detached and even indifferent
attitudes on the part of the warrior-technicians who actually direct and use the
weapons.”50 Essentially, one party to a conflict may live in a warzone, while the other
party never experiences the war first-hand.
In practice, there may be less apathy on the part of drone operators than some
have predicted. One drone operator explained, “Observing the horrors of war, over and
over again—even from a distance—carries a heavy burden.”51 Accounts such as this
indicate that drone operators psychologically experience the burden of war even if they
are spared from its physical consequences. Another drone operator explained, “You had
to kill part of your conscience to keep doing your job every day – and ignore those voices
48 Samuel Issacharoff and Richard Pildes, “Drones and the Dilemma of Modern Warfare,” in Drone Wars, ed. Peter Bergen and Daniel Rothenberg (New York: Cambridge University Press, 2015), 395. 49 International Human Rights and Conflict Resolution Clinic (Stanford Law School) and Global Justice Clinic (NYU School of Law), Living Under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan, September, 2012, vii. 50 John Langan, “The Elements of St. Augustine's Just War Theory,” The Journal of Religious Ethics, 34. 51 Sarah McCammon, “The Warfare May Be Remote But The Trauma Is Real,” NPR, April 24, 2017, https://www.npr.org/2017/04/24/525413427/for-drone-pilots-warfare-may-be-remote-but-the-trauma-is-real.
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telling you this wasn’t right.”52 Over time, this process leads to a normalization of the
work carried out. This normalization is reinforced by the fact that drone operators are
often unaware of the consequences of the strikes they oversee. Following one drone
operator’s honorable discharge in 2011, he was given a report card for his years of duty,
which notified him that he had assisted in the killing of 1,626 individuals.53 Nations and
groups with access to employable drone technology face a lowered human cost in war—
an asymmetry that can make the recourse to war more probable, and the continuation of
war less costly.
Jus in bello considerations about the practice of targeted drone strikes must
consider the fact that drones have not been used reciprocally in a conflict. Drone warfare
has thus far consisted of the US and coalition partners targeting groups that lack
employable drone technologies. This counters Carl Von Clausewitz’s assertion that wars
lead to extremes, as “each side, therefore, compels its opponent to follow suit; a
reciprocal action is started which must lead, in theory, to extremes.”54 The vast
technological advantages for the US in the War on Terror are one reason asymmetrical
warfare has been adopted by enemies of the US. The result is less a mutual escalation of
force, and instead a cat-and-mouse game. Insurgents and terrorists attempt to strike the
US or its forces abroad in one-off attempts, and the US consequently attempts to hunt the
responsible individuals down. While such an imbalance of military resources inevitably
52 Ed Pilkington, “Life as a drone operator: 'Ever step on ants and never give it another thought?'” The Guardian, November 19, 2015, https://www.theguardian.com/world/2015/nov/18/life-as-a-drone-pilot-creech-air-force-base-nevada. 53 Ed Pilkington, “Life as a drone operator: 'Ever step on ants and never give it another thought?'” The Guardian, November 19, 2015, https://www.theguardian.com/world/2015/nov/18/life-as-a-drone-pilot-creech-air-force-base-nevada. 54 Carl Von Clausewitz, On War, Edited and translated by Michael Howard and Peter Paret (Princeton: Princeton University Press, 1976), 77.
27
informs the strategies of each party to the conflict, a discrepancy of resources is not
reason for a war tactic to be unjust. So long as superior military technology is employed
in a manner consistent with Just War principles, such technology is permitted for use in
war.
In terms of proportionality and discrimination when using force, targeted drone
strikes are one of the most justifiable means of waging war available. Unlike other uses
of force that may indiscriminately destroy both military and civilian targets, drone strikes
allow for precision. The isolation of drone operators from the battlefield—which raised
previously discussed moral implications—can be one reason for this. “Remoteness from
the immediate battlefield—with operators able to see much more of what is going on—
almost surely enables much more deliberate responses.”55 The precision of drone strikes
is also a product of the intelligence-gathering that can occur prior to a strike. Intelligence
is processed by targeteers, and strikes are then vetted by lawyers and military personnel
to ensure both legality and a probability of success.56 Such deliberation of drone strikes
led US Central Command Maj. Shane Huff to conclude that the US and coalition forces
“are conducting one of the most precise air campaigns in military history.”57 There is no
doubt that drone strikes can be a precise means of waging war, but it is difficult to assess
such a claim when accounts of civilian drone strike casualties vary widely. A recent New
York Times report indicated that US-led coalition strikes have resulted in civilian
55 Samuel Issacharoff and Richard Pildes, “Drones and the Dilemma of Modern Warfare,” in Drone Wars, ed. Peter Bergen and Daniel Rothenberg (New York: Cambridge University Press, 2015), 399. 56 Drone strike approval procedures will be discussed in greater detail in Chapter 4. 57 Azmat Khan and Anand Gopal, “The Uncounted,” The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html?_r=0.
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casualties at a rate 31 times higher than what the coalition has acknowledged.58 Such a
discrepancy raises critical questions about transparency of the current campaign.
However, the fact that governments are aiming to minimize the number of civilian
casualties in war is a positive sign, and targeted drone strikes is a potential means of
doing so.
The Influence of Just War Theory on Obama’s Foreign Policy
President Obama’s foreign policy outlook was certainly informed by Just War
teachings, even though the implementation of his foreign policy was influenced by many
of other factors. Obama favored multilateralism, “smart power,” and approached war
through more scholarly, legalistic, and moral lenses than many of his predecessors. The
writings of prominent Just War philosophers unquestionably influenced Obama. A 2012
New York Times article explained that as “a student of writings on war by Augustine and
Thomas Aquinas, he [Obama] believes that he should take moral responsibility for such
[drone strike] actions.”59 The influence of these philosophers was consistently apparent in
the rhetoric of Obama. Upon receiving the Nobel Peace Prize in 2009, the acceptance
speech Obama delivered in Oslo was entitled “A Just and Lasting Peace.” This speech
addressed practical concerns, such as the necessity of force in a world containing evil, as
well as more idealistic ambitions. “The nature of the peace that we seek,” Obama
explained, is “not merely the absence of visible conflict. Only a just peace based on the
58 Azmat Khan and Anand Gopal, “The Uncounted,” The New York Times Magazine, November 16, 2017. 59 Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” The New York Times, May 29, 2012, http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html.
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inherent rights and dignity of every individual can truly be lasting.”60 This vision of
peace echoes Kant’s assertion that war is the norm in the world. Strides must thus be
taken to advance human institutions, neutralize threats, and lift individuals to a level of
well-being necessary for a lasting peace to take root.
Despite his idealistic vision of peace, Obama was realistic about the probability of
realizing that vision. In Oslo, he conceded, “We will not eradicate violent conflict in our
lifetimes. There will be times when nations – acting individually or in concert – will find
the use of force not only necessary but morally justified.”61 Throughout his presidency,
Obama’s pragmatism seemed to overrule his idealism. Yet even his pragmatic foreign
policy outlook was framed in accordance with the precepts of Just War Theory. Force,
Obama repeatedly argued, should only be utilized in times when it is “morally justified.”
This aligns with the concept of jus ad bellum. In his 2009 inaugural address, Obama
emphasized both the morality and utility of constricting the use force to a last resort.
“Power alone cannot protect us,” Obama asserted. “Our security emanates from the
justness of our cause, the force of our example, the tempering qualities of humility and
restraint.”62 Obama’s reticence of armed conflict aside, he inherited and presided over
two wars, and supported numerous drone strikes. Thus, the initiation of conflict was of
less importance during his presidency than continuation of conflict.
The wars that Obama inherited forced contradictions between his rhetoric and his
policies. That is why Obama’s grand strategy during his time in office remains subject to
60 Barack Obama, “A Just and Lasting Peace,” (speech, Oslo, Norway, December 10, 2009), Nobel Prize, https://www.nobelprize.org/nobel_prizes/peace/laureates/2009/obama-lecture_en.html. 61 Obama, “A Just and Lasting Peace.” 62 Barack Obama, “President Barack Obama's Inaugural Address,” (speech, Washington, D.C., January 21, 2009), The White House, https://obamawhitehouse.archives.gov/blog/2009/01/21/president-barack-obamas-inaugural-address.
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much debate. Political scientist Colin Dueck identified no less than five different
interpretations of Obama’s grand strategy—engagement, leading from behind, drone
strikes, a kind and gentle empire, and a lack of genuine strategic thinking—that are
simultaneously plausible and at odds with one another.63 Obama made the effort to
address concerns of morality in most of his foreign policy speeches, but often fell back on
realist concerns justifying the use of force. In contrast to Obama, Walzer pushes back
against this sort of realism, as he sees it lending itself to war. “Strategy, like morality, is a
language of justification.”64 By simply mentioning the strategic reasons why force—or
more specifically, drone strikes—was necessary, Obama was also rationalizing his
justifications for those strikes.
The Obama administration intentionally constructed a targeted drone strike
program that could align with just in bello principles of war. The principles of necessity,
humanity, proportionality, and distinction central to jus in bello were emphasized in the
policies of Obama’s drone program.65 In his desire to embody these principles, Obama
and his advisers quickly initiated a shift in US strategy in the War on Terror. The Obama
administration immediately began to heavily rely on targeted drone strikes, conducting
more strikes in Pakistan in 2009 alone than the Bush administration did in the previous
eight years.66 Obama viewed it as his moral duty to be involved in the nomination process
of when it was viable to call for a drone strike on a purported terror target. If the US had
63 Colin Dueck, The Obama Doctrine: American Grand Strategy Today (New York: Oxford University Press, 2015), 1. 64 Michael Walzer, Just and Unjust Wars, Fourth ed. (New York: Basic Books, 2006), 13. 65 Presidential Policy Guidance, “Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities,” May 22, 2013, in The Drone Memos, Jameel Jaffer (New York: The New Press, 2016), 225-252. 66 “Drone Strikes: Pakistan,” New America. https://www.newamerica.org/in-depth/americas-counterterrorism-wars/.
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a terrorist in its sights, but said terrorist was surrounded by family or other civilians, “it is
the president who has reserved to himself the final moral calculation.”67 This hands-on
approach taken by Obama exemplified his desire to adhere to certain moral standards in
drone warfare as well as a self-confidence in his own decision-making abilities. Former
NSA and CIA director Michael Hayden remarked that, consequently, the drone program
“rests on the personal legitimacy of the president.”68 Democracies do not view war as an
individual endeavor, so the legitimacy of warfare should not rest on the shoulders of any
singular individual. Leading a legitimate sovereign authority implies that one is not
merely elected, but that they are also managing the business of war in a public and
transparent manner. As Aquinas wrote, this ensures that war is only waged for a public
interest. Obama may have consolidated drone strike decision-making power to himself in
an attempt to exercise restraint, but in doing so he set a dangerous precedent.
Shortcomings of Just War Theory
Just War Theory is noble in its aims, but one would be remiss in failing to critique
its shortcomings. State and non-state actors alike are unified in their belief that their
respective causes are just. Non-state actors waging war—people seeking revolution—are
often labelled terrorists or insurgents, but “virtually any warring nonstate group will
claim, and probably even believe, that it is fighting for a just cause.”69 It is thus a near-
inevitability that the incitement of any conflict will be considered justified by the
67 Becker and Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will.” 68 Jaffer, 31. 69 Allen S. Weiner, “Just War Theory & the Conduct of Asymmetric Warfare,” Daedalus, Vol. 146, no. 1 (Winter 2017): 59-70, The MIT Press Journals, http://www.mitpressjournals.org.ezproxy.proxy.library.oregonstate.edu/doi/full/10.1162/DAED_a_00422.
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aggressing party. David Kennedy noted that it “remains unclear whether seventeenth-
century ‘unjust’ war ideas ever really limited the use of military force. They may well
have done more to delegitimate the enemy and justify the cause.”70 This delegitimization
of the enemy is a recurring theme that is often apparent in the names assigned to wars.
The very name of the War on Terror implies that terror—an idea—can be fought the
same way a war on a state actor can be fought. This characterization has served to
broaden the scope of US conflicts in the 21st century.
Just War Theory authorizes those who presume to have a just cause to engage in
war, but this suggests a quandary; should or can war itself should be regulated?
Integrating moral standards into war is not intuitive, as war itself represents the
suspension of normal rules. War lies in a temporal space in which widely-held morals are
not applicable. Clausewitz argues that “to introduce the principle of moderation into the
theory of war itself would always lead to logical absurdity.”71 A military leader who
imposes restraint on their own capabilities is essentially self-inflicting damage, according
to Clausewitz. This is a fair critique, although it is important to note that present-day
conflicts are often about winning hearts and minds of people. The contemporary goal of
war is rarely to eliminate an opponent or simply overtake territory, but rather to replace
an unpopular, unjust, or uncooperative government with one that will protect a given
actor’s interests. In this light, following the jus in bello precepts of war is not only
morally right, but also strategically beneficial.
70 David Kennedy, Of War and Law, (Princeton: Princeton University Press, 2006), 76. 71 Carl Von Clausewitz, On War, Edited and translated by Michael Howard and Peter Paret (Princeton: Princeton University Press, 1976), 76.
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Another, possibly more salient, criticism of Just War Theory is that it is ultimately
detrimental because it merely imposes restrictions that delay the course of the war. The
longer the duration of war, the longer peace is postponed. Totally unregulated conflict
likely would be more violent, but last far shorter. Walzer compares war to hell, and thus
“victory can always be described as an escape from hell.”72 If the purpose of war is to
respond to some aggressor or unjust actor, it would make sense to do so as swiftly as
possible. The War on Terror illustrates this point. It has been ongoing since 2001, but for
much of its duration the intensity of fighting in the War on Terror has been modest.
Drone strikes are methodically carried out as a part of the war strategy, but they do not
seem to discernibly bring the War on Terror closer to a conclusion. Just War Theory
regulates war to minimize destruction, but the domestication of war via regulation
suggests that war is acceptable, which may in fact make peace more distant.
Just War Theory: Bringing the Strands Together
Just War Theory is an imperfect, but nonetheless useful lens through which to
interpret and assess wars. Its utility stems from how widely-accepted it is across the
globe. Just war scholarship predates the Common Era, and is shared across cultures and
among national leaders. People define that which is just differently, but nearly all peoples
subscribe to some moral code that instructs when and how force may be permitted.
Christianity and Islam have both developed their own just war traditions that are similar
in substance, but unique based on their history. In the present era, the tensions within and
between each tradition have surfaced. Present-day debates about what constitutes self-
72 Michael Walzer, Just and Unjust Wars, Fourth ed. (New York: Basic Books, 2006), 47.
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defense recall differences between Augustine’s and Aquinas’ positions, or the diverging
meanings of the word jihad. A diversity of thought exists within each tradition, yet
historical points of contention remain relevant.
President Obama was clearly influenced by just war ideas, and sought to integrate
these principles into his counterterrorism strategy. Drone strikes offer a potentially
discriminate and proportionate counterterrorism tool, so it is understandable why Obama
promoted their use. However, the use of drones presents unique just war challenges. The
consolidation of drone strike decision-making authority and the highly technical nature of
targeted drone strikes normalizes the process to the point where strikes become a regular
bureaucratic procedure. Such centralization of authority isolates most Americans from
the experience of war. This has the clear benefit of protecting Americans from the
dangers of the battlefield, but it also allows American citizens to remain largely unaware
about wars being fought by their government.
Drone strikes also magnify an inherent tension between jus ad bellum and jus in
bello considerations. Drones are similar in effect to previous technological innovations
that have allowed for the exertion of force from ever-greater distances. Because this
distancing does not change jus in bello considerations, there is no compelling reason why
drones should be banned from war. However, the lowered human costs of drone
warfare—at least for the party to a conflict that has employable drone technology—can
potentially make the recourse to war more likely. This changes the calculus of jus ad
bellum considerations for national leaders. Because Just War Theory permits war so long
as the necessary jus ad bellum conditions are met, it is foreseeable that nations with drone
strike capabilities could interpret their self-defense interests more broadly, as they would
35
incur lower costs in war. As more nations develop their own drone strike capabilities, this
matter will only become more pressing.
Drone technology is presently a cutting-edge military innovation, so people are
understandably suspicious of its capabilities and unsure how it should fit into existing
practices of war. Political scientist P.W. Singer explained that people are hesitant
because, “We fear what we do not understand.”73 Nonetheless, drone strikes can be a
politically advantageous course of action. In the following chapter, we will turn to
discuss the domestic political motivations that have led the US to heavily rely on drones
in the War on Terror.
73 P.W. Singer, “The Five Deadly Flaws of Talking About Emerging Military Technologies and the Need for New Approaches to Law, Ethics, and War,” in Drone Wars, ed. Peter Bergen and Daniel Rothenberg (New York: Cambridge University Press, 2015), 226.
36
The Domestic Politics of US Drone Strikes
On many Tuesdays during his Presidency, President Obama and a team of
national security experts and administration personnel convened for the purpose of
nominating names of suspected terrorists for drone kill lists.74 The regularity of these
“Terror Tuesday” meetings, as they were colloquially called, and President Obama’s
willingness to personally approve drone strikes surprised his supporters and adversaries
alike—even Obama himself. He reportedly confided to an aide in 2011, “Turns out I’m
really good at killing people. Didn’t know that was gonna be a strong suit of mine.”75
Obama—the student of Aquinas and St. Augustine, the former community organizer and
vocal critic of the Iraq War—had suddenly become comfortable deciding which terror
suspects warranted targeted drone strikes.
This transformation can be attributed to misinterpretations of the Obama
campaign’s foreign policy platform, changes in Obama’s personal views upon assuming
the presidency, and as a reaction to political pressures. Obama’s national security policies
were never isolationist nor dovish, even if their contrast to President Bush’s foreign
policy made some perceive them as such. Obama consistently emphasized utilizing
multiple instruments of US power and influence rather than relying exclusively on
military might, yet never precluded the use of force. During a 2008 campaign foreign
policy speech, he proposed a foreign policy that would accomplish goals “not just
through military force, but through the force of our ideas; through economic power,
74 Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” The New York Times, May 29, 2012, http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html. 75 Micah Zenko, “Obama’s Final Drone Strike Data,” Council of Foreign Relations, January 20, 2017, https://www.cfr.org/blog-post/obamas-final-drone-strike-data.
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intelligence and diplomacy.”76 Obama’s overarching foreign policy outlook combined
both military and non-military options, multilateralism, and the identification of common
ground with other countries. When Obama did speak to military commitments abroad, he
indicated preferences for timelines and defined objectives. These preferences were at
odds with the recurring Terror Tuesday meetings, and the drone strike program they
necessitated.
While drone strikes originally appealed to Obama because of their small footprint,
relatively low cost, and targeted nature; the drone strike program eventually became self-
perpetuating. The Obama administration created the bureaucratic infrastructure for a
drone strike program that lacked a defined geographic scope, was not constrained to
timelines, and often operated in the shadows of diplomatic efforts. In theory, drone
strikes could align with Obama’s stated counterterrorism goals because they can
represent a targeted means of neutralizing specific security threats. In practice, however,
the Obama drone strike program contradicted his articulated foreign policy because it
lacked defined limitations.
The domestic political pressures Obama faced compelled him to personally
oversee more counterterrorism policies than he likely anticipated when he ran for office
in 2008. Early in Obama’s presidency, conservatives accused him of being too weak in
foreign policy while liberals simultaneously pushed for an accelerated withdraw from
Iraq. These conflicting foreign policy pressures came at a time when domestic politics
were at the forefront of most American’s minds. In the first year of Obama’s presidency,
Gallup poll respondents identified the economy and healthcare—receiving 29% and 26%
76 Barack H. Obama, “Obama’s Remarks on Iraq and Afghanistan,” Speech, Washington, D.C., July 15, 2008, The New York Times, http://www.nytimes.com/2008/07/15/us/politics/15text-obama.html.
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of the poll’s votes, respectively—as the most important issues at the time.77 Only 8% of
respondents identified the Iraq War as the most pressing concern, with all other foreign
policy issues registering lower.78 With the public focused on domestic political issues,
Obama sought to harness this energy by pushing a significant domestic legislative
agenda, highlighted by an economic stimulus package and healthcare reform.
Accomplishing these domestic political goals was contingent on maintaining
national security and ensuring that foreign affairs would not derail domestic efforts.
Drone strikes allowed the administration to proactively hunt down suspected terrorists
and thwart terror plots without increasing the number of US troops in the Middle East.
The Obama administration was attempting to simultaneously protect the nation, pass
domestic legislation, fend off conservative criticism for being weak on national defense,
and present the illusion that the nation was deescalating war efforts by bringing troops
back home. The result was an imperfect foreign policy that did not devote the necessary
resources to successfully conclude the War on Terror. However, it was a foreign policy
that was largely popular at home, and accomplished its political goals.
The Political Framing of War
Analyzing war requires examination of the political environment in which war
occurs. Carl von Clausewitz famously stated that “war is merely the continuation of
policy by other means.”79 While this short statement has resulted in varying
77 Jeffrey M. Jones, “Economy, Healthcare Top ‘Most Important Problem’ List,” September 9, 2009, Gallup, http://news.gallup.com/poll/122885/economy-healthcare-top-important-problem-list.aspx. 78 Jones, “Economy, Healthcare Top ‘Most Important Problem’ List.” 79 Carl Von Clausewitz, On War, Edited and translated by Michael Howard and Peter Paret, (Princeton: Princeton University Press, 1976), 87.
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interpretations and translations,80 Clausewitz was emphasizing that it is impossible to
disentangle war from politics. Wars are a product of a series of political judgments—
what threats should precipitate war, what tactics should be employed, and to what degree
should war be influenced by the opinions of citizens. These judgments are made by
national leaders who think not only in terms of the national interest, but their own self-
interest as politicians. The forces that influence political decision-making processes
consequently impact the frequency and character of wars fought.
In a democracy, consideration of public opinion in its relation to war is especially
relevant. War is a public matter, but it is not a directly democratic matter—the US holds
no referendums on war. In the US, the President, as Commander-in-Chief, and Congress,
with the vested authority to declare war, share war decision-making powers.81
Presidential and Congressional elections can thus act as de facto referendums on ongoing
wars, because politicians with popular stances on war face less electoral blowback.
Accordingly, it is in the interests of leaders of democratic nations to enter and fight wars
in a manner popular with their constituents, so that they are well-positioned for
reelection. Consequently, presidential concern for national security comes not only from
a sense of duty for country, but also because a citizenry that feels protected is more likely
to reelect the sitting president and their party’s politicians. The interests of the citizenry
and the policies that will lead to presidential reelection ideally converge. Accordingly,
80 James R. Holmes, “Everything You Know About Clausewitz Is Wrong,” The Diplomat, November 12, 2014. https://thediplomat.com/2014/11/everything-you-know-about-clausewitz-is-wrong/. 81 In the War on Terror, presidents have taken a much larger role than Congress in war decision-making. While Congress approved this war effort via the 2001 Authorization for Use of Military Force (AUMF), no formal declaration of war was issued by Congress. As legal scholar Mary Dudziak notes in Wartime, the US has not officially declared war since World War II, despite subsequently engaging in numerous conflicts. Nonetheless, Congress retains the constitutional authority to declare wars, and can oversee military actions in accordance with the War Powers Act of 1973.
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war can be used both to protect a nation and serve political interests of national leaders.
As Clausewitz explained, “The political object is the goal, war is the means of reaching
it, and means can never be considered in isolation from their purpose.”82 War is thus
political in nature, and is framed as a component of larger political narratives.
Previous scholarship has closely examined the relationship between war and
presidential popularity. Political scientist John Mueller’s influential 1973 book on this
topic, War, Presidents, and Public Opinion, has since “spawned a cottage industry of
related studies.”83 The “Rally Around the Flag” effect is one enduring concept from
Mueller that has been used to explain spikes in Presidential popularity at the outbreak of
wars. This effect proposes that at the incitement of conflict, the public feels compelled to
rally behind the President and military as a sign of national unity. This effect wanes over
time due to what political scientist Anthony DiMaggio attributes to “escalating military
casualties, declining expectations of success, growing moral challenges to war, and
declining presidential popularity.”84 The War on Terror illustrates these political effects
of war. President George W. Bush’s approval rating hovered around 50% throughout
most of 2001, before spiking to 86% after the attacks of 9/11 and Bush’s subsequent
initiation of the War on Terror.85 The diversionary theory of force builds on the rally
effect in proposing that Presidents may engage in conflicts to divert attention away from
a poor economy and gain more public support, though research on this theory is less
82 Clausewitz, On War (Princeton: Princeton University Press, 1976), 87. 83 Marc J. Hetherington and Michael Nelson, “Anatomy of a Rally Effect: George W. Bush and the War on Terrorism.” PS: Political Science and Politics 36, no. 1 (2003): 37-42. http://www.jstor.org.ezproxy.proxy.library.oregonstate.edu/stable/3649343, 37. 84 Anthony R. DiMaggio, Selling War, Selling Hope: Presidential Rhetoric, the News Media, and US Foreign Policy since 9/11 (Albany: State University of New York Press, 2015), ProQuest Ebook Central, 5. 85 “Bush and Public Opinion: Reviewing the Bush Years and the Public's Final Verdict,” December 18, 2008, Pew Research Center, http://www.people-press.org/2008/12/18/bush-and-public-opinion/.
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conclusive. Political scientist Karl DeRouen wrote on the topic in 2000, finding that
unemployment correlates to increased uses of force, but that there was no indication that
low presidential approval increases the use of force.86 Regardless of the validity of the
diversionary theory of force, there is certainly a relationship between presidential foreign
policy decisions and domestic popular opinion.
The positive rallying effects of war on presidential popularity are exhibited in
elections. Despite the costs of war, political scientists Andrew H. Sidman and Helmut
Norpoth found that in US history, parties controlling the White House have won 12 of the
18 wartime elections.87 War does not guarantee that the party in power will be reelected,
but it does somewhat improve their chances. Accordingly, these researchers concluded
that President George W. Bush “won the 2004 election because, not in spite, of the war in
Iraq.”88 They argue that the initiation of the Iraq War extended the initial rally effect of
the War on Terror—maintaining foreign policy as a focus in voter’s minds.89 Public
opinion polls support the notion that foreign policy issues were pivotal in the 2004
election. In the lead-up to the 2004 election, 49% of voters said terrorism was an
“extremely important” issue, and 46% identified the Iraq War as “extremely important.”90
With foreign policy matters playing a significant role in the 2004 election, Bush held
certain advantages as the incumbent. The continuation of the rally effect indicates that
86 Karl DeRouen, "Presidents and the Diversionary Use of Force: A Research Note." International Studies Quarterly 44, no. 2 (2000): 317-28. http://www.jstor.org.ezproxy.proxy.library.oregonstate.edu/stable/3014000, 325-326. 87 Helmut Norpoth and Andrew H. Sidman, "Mission Accomplished: The Wartime Election of 2004," Political Behavior 29, no. 2 (2007): 175-95, http://www.jstor.org.ezproxy.proxy.library.oregonstate.edu/stable/4500241, 178. 88 Norpoth and Sidman, "Mission Accomplished: The Wartime Election of 2004,” 194. 89 Norpoth and Sidman, "Mission Accomplished: The Wartime Election of 2004." 90 Joseph Carroll, “Economy, Terrorism Top Issues in 2004 Election Vote,” September 25, 2003, Gallup, http://news.gallup.com/poll/9337/economy-terrorism-top-issues-2004-election-vote.aspx
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Americans did not want to appear unpatriotic by undermining President Bush’s war
efforts.
The domestic politics of war are also shaped by the rhetorical framing of
conflicts. The Bush administration’s response to 9/11 was framed in terms of the broadly-
defined “War on Terror” and “Freedom Agenda.” The War on Terror became the catch-
all phrase dubbed by the Bush administration in the post-9/11 era to describe US military
involvements in Afghanistan, Iraq, and the Middle East in general. Because of the liberal
application of this phrase, it is not descriptive, but it remains relevant due to its frequent
usage. Scholars of journalism Stephen D. Reese and Seth C. Lewis explain, “The War on
Terror was more than a policy label; it was a powerful organizing principle.”91 This
framing of the war was reinforced by the Bush administration’s use of the Freedom
Agenda to define the ultimate purpose of the war. In his second inaugural address, Bush
highlighted the Freedom Agenda. “The survival of liberty in our land increasingly
depends on the success of liberty in other lands. The best hope for peace in our world is
the expansion of freedom in all the world,” Bush explained.92 In the years following 9/11,
this agenda gained traction because people viewed it as a logical response to terrorism.
DiMaggio writes, “Both reporters and the public saw the attacks [of 9/11] as targeting the
United States because of its ‘democracy and freedom’ and ‘our values and way of
life.’”93 The Bush administration made the political decision to frame the War on Terror
91 Stephen D. Reese and Seth C. Lewis, "Framing the War on Terror," Journalism 10, no. 6 (2009): 777-97, 792. 92 George W. Bush, “President Bush's Second Inaugural Address” (speech, Washington, DC, January 20, 2005), NPR, https://www.npr.org/templates/story/story.php?storyId=4460172. 93 DiMaggio, Selling War, Selling Hope: Presidential Rhetoric, the News Media, and US Foreign Policy since 9/11, 22.
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not as a defensive war against a singular terror attack, but as a war to protect the very
values Americans hold dear.
Using this framing, the Iraq War became intertwined with the War on Terror in
the minds of many Americans. Reese and Lewis noted that “public support for the war [in
Iraq] hinged crucially on whether or not one believed the link between 9/11 and Saddam
Hussein, which a majority of Americans did.”94 At a time when public concern with
foreign policy matters was high, the Bush administration successfully framed the two
ongoing wars as interrelated due to their common objective. Despite mounting anti-war
sentiment in the mid-2000s, this position still resonated with voters in 2004. By the time
of the 2008 election, the public had grown weary from war, and the rally effect of the
War on Terror had evaporated. Promoting large numbers of troops deployed in combat
zones was no longer politically viable. The country was primed for a change in
counterterrorism strategy.
The US Public and the War on Terror
Between 2004 and 2008, the most pressing issue in the minds of Americans had
shifted from foreign policy to the economy. Obama’s first presidential campaign reflected
this shift in public opinion by presenting a platform heavy in domestic initiatives—
healthcare reform, economic relief, progressive taxation policies, and investment in
renewable energies. On foreign policy, Obama committed to reducing commitments
abroad—chiefly, by withdrawing from Iraq—to enable such investments at home.
DiMaggio explains, “With the crumbling justifications for the Iraq war, coupled with
94 Reese and Lewis, "Framing the War on Terror," 779.
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fatigue over ‘fighting terrorism’ into the unknown future, Americans became much less
willing to tolerate war.”95 To illustrate his displeasure with the Iraq War, Obama said it
“distracted” from the more pressing fights against Al-Qaeda and the Taliban.96 Instead of
pursuing Bush’s broadly-defined Freedom Agenda, Obama’s counterterrorism strategies
aimed to focus directly on the groups and individuals that threatened the nation. In a
rebuke of Bush’s contended mishandlings, the Obama White House website summarized
the 2008 inaugural address as a “calling for a ‘new era of responsibility.’”97 Obama
aimed for a responsible foreign policy that would not unnecessarily burden the country
with military commitments.
An important change occurring between 2004 and 2008 was the decreasing trust
and deference that Americans provided the government for war efforts. In the aftermath
of an attack such as 9/11, the government is more emboldened to ask for sacrifices from
the citizenry for the sake of national security. In the War on Terror, this came in the form
of sending large numbers of troops and National Guard members overseas, and reduced
individual privacy at home via increased state surveillance. In his 2004 inaugural speech,
Bush alluded to these asks, stating, “From all of you, I have asked patience in the hard
task of securing America, which you have granted in good measure.”98 By 2008, the
public was exhausted from war, hurting from a poor economy, and politically polarized—
in sum, less willing to grant the government resources for war efforts. These factors also
95 DiMaggio, Selling War, Selling Hope: Presidential Rhetoric, the News Media, and US Foreign Policy since 9/11, 2. 96 Obama, “Obama’s Remarks on Iraq and Afghanistan.” Speech. 97 Barack H. Obama, “President Barack Obama's Inaugural Address,” Speech, Washington, D.C., January 21, 2009, The White House, https://obamawhitehouse.archives.gov/blog/2009/01/21/president-barack-obamas-inaugural-address. 98 George W. Bush, “President Bush's Second Inaugural Address,” Speech, Washington, DC, January 20, 2005, NPR, https://www.npr.org/templates/story/story.php?storyId=4460172.
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bred increased mistrust of government. Between 2006 and 2008, the portion of
Americans who believed the government had gone too far in curbing civil liberties for the
sake of security increased from 26% to 36%.99 This maps on to a broader trend of
declining overall trust in the federal government. During the Bush administration,
government favorability dropped from 64% to 37%.100 This substantial decrease in trust
changed the relationship between the government and citizens. The War on Terror
continued into the Obama administration, but it ceased to be a war in which the
government could make demands of the general citizenry.
This change in the character of the War on Terror was accompanied by a change
in political framing. “Attempts to distance himself from Bush’s polarizing rhetoric and
legacy,” writes DiMaggio, “marked President Barack Obama’s tenure as president.”101
To accomplish this, Obama rejected the very naming of the War on Terror. In his 2013
speech at the National Defense University, he stated, “Beyond Afghanistan, we must
define our effort not as a boundless ‘global war on terror,’ but rather as a series of
persistent, targeted efforts to dismantle specific networks of violent extremists that
threaten America.”102 This strategy differed from Bush’s by its defined limitations. No
longer did the US claim to pursue the lofty ideals of the Freedom Agenda. Rather, the
War on Terror was narrowed to an ongoing series of strikes against “specific networks of
violent extremists.” The American public was not called upon in this effort, distancing
99 “Bush and Public Opinion: Reviewing the Bush Years and the Public's Final Verdict,” December 18, 2008, Pew Research Center, http://www.people-press.org/2008/12/18/bush-and-public-opinion/, Part 2. 100 “Bush and Public Opinion: Reviewing the Bush Years and the Public's Final Verdict,” December 18, 2008, Pew Research Center, http://www.people-press.org/2008/12/18/bush-and-public-opinion/, Overview. 101 DiMaggio, Selling War, Selling Hope: Presidential Rhetoric, the News Media, and US Foreign Policy since 9/11, 2.. 102 Barack Obama, “Remarks at National Defense University,” May 23, 2013, in The Drone Memos, Jameel Jaffer (New York: The New Press, 2016), 264.
46
the war from the daily lives of Americans. Obama rhetorically diminished the threat
posed by terrorists, implicitly arguing that terror groups did not merit an all-out war
effort. This rhetorical strategy served two political purposes for Obama. First, it allowed
for Obama to clearly distinguish himself from Bush. Second, it provided Obama
justification for withdrawing troops from the Middle East, thus easing the American
public’s burdens of war.
The American Public and Drone Strikes
To accomplish his goal of focusing the War on Terror on specific terror networks,
the Obama administration turned to targeted drone strikes as the strategy of choice. These
strikes enabled the administration to reduce the number of ground troops while still
targeting terrorists. The Obama administration was not the first to authorize drone strikes
nor were drone strikes the administration’s entire counterterrorism tactic, but they quickly
defined the US’s new approach to the War on Terror. This is evidenced by the dramatic
spike in strikes from the Bush to the Obama administration. Under the Bush
administration there were a reported 50 drone strikes authorized, compared to 506
reported under the Obama administration.103 This tenfold increase in strikes is substantial,
but as Council on Foreign Relations senior fellow Micah Zenko notes, “More
consequential than the growth in drone strikes, is the Obama administration’s efforts to
institutionalize and normalize the practice.”104 This bureaucratic normalization of drone
103 Micah Zenko, “Obama’s Embrace of Drone Strikes Will Be a Lasting Legacy,” The New York Times, January 12, 2016, https://www.nytimes.com/roomfordebate/2016/01/12/reflecting-on-obamas-presidency/obamas-embrace-of-drone-strikes-will-be-a-lasting-legacy. 104 Micah Zenko, “Obama’s Embrace of Drone Strikes Will Be a Lasting Legacy.”
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strikes, which will be further discussed in Chapter 4, prevented drone strikes from
generating much public attention, thus expending minimal political capital.
The counterterrorism trade-off made by the Obama administration substituted
ground troops and traditional weapons for drones. This was politically prudent because it
demanded less from the American public and saved money. Political scientist Colin
Dueck wrote on the relative decline in defense spending that occurred during the Obama
administration, noting that such spending dipped from 4.9% of GDP in 2010, to just over
3% of GDP by 2016.105 Furthermore, the administration’s 2012 Defense Strategic
Guidance instructed, “we will develop innovative, low-cost and small-footprint
approaches to achieve our security objectives.”106 These changes were largely welcomed
by the American public, but limited the options available in the War on Terror.
Adopting a strategy that relied heavily on drone strikes while deemphasizing
ground troops evidences a strong belief in technological capabilities. While drones can
achieve some security objectives, fighting a conflict with little to no ground presence has
its shortcomings. One shortcoming is that intelligence gathered by air, which informed
many pre-strike decisions, can be incomplete or misleading. In the War on Terror, this
has led to strikes based on inadequate intelligence. Consequently, a New York Times
Magazine investigation found that many civilian deaths “appear to be the result simply of
flawed or outdated intelligence that conflated civilians with combatants.”107 The domestic
105 Colin Dueck, The Obama Doctrine: American Grand Strategy Today (New York: Oxford University Press, 2015), 94. 106 Dueck, The Obama Doctrine, 95. 107 Azmat Khan and Anand Gopal, “The Uncounted,” The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html?_r=0.
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political motivation to cut costs thus stands at odds with the strategic objective of
avoiding civilian deaths.
The American public nonetheless overwhelmingly supports such strikes in large
part due to trust in their efficacy. The Pew Research Center conducted a survey in 2014
finding that 52% of Americans generally supported drone strikes.108 When questioned
whether they specifically support “the use of unmanned ‘drone’ aircraft against terrorist
suspects overseas,” 83% of Americans surveyed responded with approval.109 One reason
for such high public approval is because people believe drone strikes are effective. Asked
about the effectiveness of strikes against suspected terrorists in Pakistan and Yemen, 76%
of Americans indicated their belief that such strikes were effective.110 Polls from different
outlets consistently demonstrate support for drone strikes from the American public.
Public support remains substantial even when polls address several factors that
potentially complicate drone strikes. A 2013 Fox News poll asked a series of questions
regarding Americans’ support for strikes given various hypothetical conditions. Strikes
targeting US citizens abroad who are suspected terrorists received a 60% approval rating,
and strikes against suspected foreign terrorists on US soil received 56% approval.111
However, when asked if “the president of the United States, on his own, should be able to
authorize the use of deadly force, such as a drone strike, to kill a suspected terrorist who
108 “Global Opposition to U.S. Surveillance and Drones, but Limited Harm to America’s Image,” July 14, 2014, Pew Research Center, http://www.pewglobal.org/2014/07/14/global-opposition-to-u-s-surveillance-and-drones-but-limited-harm-to-americas-image/, Chapter 1. 109 “Washington Post-ABC News Poll,” The Washington Post, February 1 - 4, 2012 (dates poll was conducted), http://www.washingtonpost.com/wp-srv/politics/polls/postabcpoll_020412.html. 110 “Washington Post-ABC News Poll,” The Washington Post, August 29 - September 1, 2011 (dates poll was conducted), http://www.washingtonpost.com/wp-srv/politics/polls/postabcpoll_090111.html. 111 “Fox News Poll: Majority supports use of drones,” Fox News, March 4, 2013 (poll conducted February 25-27, 2013), http://www.foxnews.com/politics/interactive/2013/03/04/fox-news-poll-majority-supports-use-drones.html.
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is a US citizen on US soil,” only 32% of respondents expressed approval.112 This
indicates that the combination of authorization power consolidated by the president, a US
citizen targeted, and a strike on US soil seem to concern Americans. Taken individually,
though, none of these conditions garners significant public opposition. These polls
illustrate that most of the American public supports drone strikes, and that this support
wavers only when multiple complicating factors are compounded.
Public opinion is largely informed by what impacts the daily lives of individuals.
Drone strikes of suspected terrorists in far-away countries have little tangible impact on
the lives of everyday Americans. So long as Americans perceive those strikes to be in the
national interest, they will continue to generate little opposition. This lack of opposition
to drone strikes resulted in limited public debate about such strikes until Americans
began recognizing the domestic repercussions. National security commentators Peter
Bergen and Jennifer Rowland identify the first targeted killing of an American citizen as
a pivotal moment. “It is important to note that drones were widely used for years with
only limited public awareness within the United States and with virtually no controversy.
In fact it was not until early 2012, following the death of US citizen Anwar al-Awlaki in
a drone strike, that debate in the United States over the legality and morality of covert
drone strikes began to heat up.”113 The expanding scope of drone strike targets made the
issue less abstract to everyday Americans, catalyzing further scrutiny.
Another domestic implication of normalized government drone use is its potential
for surveillance. The national debate on government surveillance was reinvigorated in
112 “Fox News Poll: Majority supports use of drones,” Fox News, March 4, 2013. 113 Peter Bergen and Jennifer Rowland, “Decade of the Drone,” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 23.
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2013 after NSA contractor Edward Snowden leaked classified government documents.
The resulting revelations brought into focus the breadth of NSA spying, consequently
decreasing trust in government. This appears to have had a measurable impact on public
perception of drone strikes. The Pew Research Center noted an 11% increase in
disapproval of US drone strikes among the American public from 2013 to 2014.114 Over
this same one-year span, the share of the public that indicated the US government
respects personal freedoms dropped by 6%.115 As the American public began to realize
the extent of domestic surveillance that was occurring, Americans became wary about
how other new technologies could be used to monitor them. Previous drone strikes and
surveillance abroad had resulted in little public outcry, but the potential for these same
usages at home bred distrust. This exemplifies how public opinion fluctuates based on the
degree to which policies directly affect the public in question. Accordingly, 61% of
Americans oppose government monitoring of US citizens, whereas only 47% of
Americans oppose government monitoring of foreign citizens.116 Whether it is with
surveillance or drone strikes, more opposition will be generated when everyday
Americans may be affected. Snowden’s leaks demonstrated to Americans that they are
not exempt from surveillance, giving cause for hesitation before granting the government
wide-ranging authority over security matters.
114 “Global Opposition to U.S. Surveillance and Drones, but Limited Harm to America’s Image,” Pew Research Center, July 14, 2014,, http://www.pewglobal.org/2014/07/14/global-opposition-to-u-s-surveillance-and-drones-but-limited-harm-to-americas-image/, Chapter 1. 115 “Global Opposition to U.S. Surveillance and Drones, but Limited Harm to America’s Image,” Pew Research Center, Chapter 1. 116 “Global Opposition to U.S. Surveillance and Drones, but Limited Harm to America’s Image,” Pew Research Center, Chapter 1.
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Partisanship, Ideology, and the Battle Over Brennan
Despite overall public support of drone strikes, this matter has produced
opposition coming from both the political left and right. Broadly speaking, security
hawks and interventionists support drone strikes, while doves, non-interventionists, and
civil libertarians are opposed. Dueck commented on the discontinuities between
ideological labels and partisan affiliation. He writes, “it can hardly be said that the
Democratic Party is unified today when it comes to a variety of international and military
issues.”117 Many Democrats were drawn to Obama’s counterterrorism strategy because it
has avoided the large-scale entanglements of Bush’s foreign policy, and was thus more
targeted and cost-effective. Liberal Democrats, however, are generally skeptical about the
use of American force abroad. The competing factions within the party help explain why
a 2014 poll found that Democrats are evenly divided on the issue of drone strikes, with
47% expressing approval and another 47% expressing disapproval.118 Despite very
material divisions among Democrats on drone strikes and foreign policy, the primacy of
domestic issues during Obama’s presidency allowed the party to smooth over its
differences. Dueck adds that electoral success also played a role, writing, “There is
nothing like winning elections under a sympathetic figure to help paper over secondary
factional differences within a political party.”119 The splintering among Democrats over
drone strikes was not mirrored to the same extent by conservatives. The same poll found
that 66% of Republicans approved of drone strikes.120 Conservatives are generally more
117 Dueck, The Obama Doctrine, 122. 118 “Global Opposition to U.S. Surveillance and Drones, but Limited Harm to America’s Image,” Pew Research Center, Chapter 1. 119 Dueck, The Obama Doctrine, 122. 120 “Global Opposition to U.S. Surveillance and Drones, but Limited Harm to America’s Image,” Pew Research Center, Chapter 1.
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permissive when it comes to the use of force, although libertarian-leaning conservatives
remain wary of increased governmental and presidential authority.
Criticism of drone strikes has consequently created a tenuous alliance of
commentators from the libertarian right and the liberal left—a grouping that coalesced in
2013 when President Obama nominated John Brennan as Director of the CIA. Obama’s
2008 nomination of Brennan to the same position was scuttled because of Brennan’s
alleged complicity in the Bush administration’s torture tactics. Despite this failed
nomination, he quickly became one of Obama’s most trusted national security advisers.
Brennan’s centrality in developing Obama’s drone program is well-documented. A 2012
Washington Post profile explained, “Brennan is the principal architect of a policy that has
transformed counterterrorism from a conventional fight centered in Afghanistan to a
high-tech global effort to track down and eliminate perceived enemies one by one.”121
However, the purported effect Brennan’s involvement has had on the drone program
varies among different observers. Some have cited his “moral compass” and his desire to
operate in a manner constrained by law as an indicator that he brought restraint and a
level-headed presence to the table.122 Others, however, wrote that Brennan has paid little
heed to individual rights or constitutional protections when dealing with suspected
terrorists.123 In Brennan’s 2013 CIA Director confirmation hearing, his record—and by
extension, the Obama administration’s drone program—were put to the test.
121 Karen DeYoung, “A CIA veteran transforms U.S. counterterrorism policy,” The Washington Post, October 24, 2012. https://www.washingtonpost.com/world/national-security/cia-veteran-john-brennan-has-transformed-us-counterterrorism-policy/2012/10/24/318b8eec-1c7c-11e2-ad90-ba5920e56eb3_print.html. 122 DeYoung, “A CIA veteran transforms U.S. counterterrorism policy,” The Washington Post. 123Conor Friersdorf, “Does It Matter if John Brennan Was Complicit in Illegal Torture?” The Atlantic, January 8, 2013, https://www.theatlantic.com/politics/archive/2013/01/does-it-matter-if-john-brennan-was-complicit-in-illegal-torture/266918/.
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The confirmation vote for Brennan pitted partisanship against ideology. The
convergence of these two factors brought odd pairings, such as Senators Rand Paul and
Jeff Merkley, into agreement with one another. Both opposed the confirmation of
Brennan, albeit for slightly different reasons. Senator Paul’s vehement opposition led him
to filibuster the nomination. In his 13-hour filibuster, Paul levelled his criticisms not on
Brennan personally, but on Brennan’s involvement in the drone program.124 Paul
specifically articulated objections to the centralized presidential decision-making of strike
authorization. “No one person, no one politician should be allowed to judge the guilt, to
charge an individual…and to execute an individual.”125 Paul’s constitutional concerns
illustrate a skepticism of governmental authority that is shared among libertarians. While
conservatives are generally skeptical of government, they are less inclined to limit
government on national security matters.
Senator Merkley took issue with Brennan’s involvement in national security
leadership under both the Bush and Obama administrations. In his explanation of his
opposition to Brennan’s confirmation, Merkley wrote, “John Brennan, an inside player in
both administrations, is not the right person for that job.”126 Merkley explained, “I have
concerns about policies that allow the administration to strip due process rights from
Americans it chooses to deem enemy combatants.” 127 Merkley’s statement is striking
because it echoes Obama’s past sentiments. In his 2006 book, The Audacity of Hope,
124 Morgan Little, “Transcript: Rand Paul's filibuster of John Brennan's CIA nomination.” Los Angeles Times, March 7, 2013, http://articles.latimes.com/2013/mar/07/news/la-pn-transcript-rand-paul-filibuster-20130307. 125 Little, “Transcript: Rand Paul’s filibuster of John Brennan’s CIA nomination,” March 7, 2013, p. 2. 126 “Merkley: Brennan Not Right Person For The Job,” Jeff Merkley United States Senator For Oregon, March 7, 2013, https://www.merkley.senate.gov/news/press-releases/merkley-brennan-not-right-person-for-the-job. 127 “Merkley: Brennan Not Right Person For The Job,” Jeff Merkley United States Senator For Oregon, March 7, 2013.
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Obama wrote on the need to uphold national values in difficult situations. “When we
detain suspects indefinitely without trial or ship them off in the dead of night to countries
where we know they’ll be tortured, we weaken our ability to press for human rights and
the rule of law in despotic regimes.” 128 Both Merkley’s and Obama’s statements refer to
protecting the civil liberties of alleged terror detainees. Seven years after Obama made
his critique, the tables had turned, and his own administration’s record on this issue was
criticized. The idealism that Obama had written of had been tempered by the realities of
the presidency.
Despite objections from both sides of the aisle, there was even more significant
bipartisan support for Brennan, and by extension, the drone program he helped construct.
Ultimately, his confirmation passed the Senate by a vote of 63-34.129 The majority of
those voting in favor were Democrats, many of whom ostensibly voted along party lines.
Alongside the 49 Democrats who voted in favor of confirmation were 13 Republicans,
including household names such as Orrin Hatch, Bob Corker, Marco Rubio, John
McCain, and Lindsey Graham.130 The commonality among those Republicans in favor is
that they tended to be more hawkish and interventionist in their foreign policy ideology,
and more politically centrist overall. Of the 34 Senators who voted in opposition, most
were staunch conservatives, but they were accompanied by Jeff Merkley, Patrick Leahy,
and Bernie Sanders.131 This subset of Senators represents a combination of those who
reliably opposed most Obama policies, and those who were concerned about
128 Barack Obama, The Audacity of Hope: Thoughts on Reclaiming the American Dream (New York: Three Rivers Press, 2006), 321. 129 “Senate Vote 32 - Confirms John Brennan as Director of the Central Intelligence Agency,” ProPublica, March 7, 2013, https://projects.propublica.org/represent/votes/113/senate/1/32. 130 “Senate Vote 32 - Confirms John Brennan as Director of the Central Intelligence Agency,” ProPublica. 131 “Senate Vote 32 - Confirms John Brennan as Director of the Central Intelligence Agency,” ProPublica.
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constitutional protections and excessive governmental authority. As Senator Paul stated
during his filibuster, “This is not necessarily a right-left issue.”132 This specific juncture
reflected broader debates around the Obama administration drone program—that issues
over drone strikes are more ideological than partisan, that strikes raise pressing
constitutional questions, and that despite contention drone strikes continue to be
supported by a majority.
How Domestic Politics Informed Drone Use
The strategies employed in the War on Terror by Presidents Bush and Obama
reflect public opinion during their time in office. Bush led the nation following the
shocking attacks of 9/11, and in the immediate aftermath, the nation rallied around him.
He accordingly had the political capital necessary to initiate two large-scale wars in short
order. The public understood the rationale for the Iraq War in terms of the Freedom
Agenda, so people viewed Iraq as another theater in the global War on Terror. By the
2008 election, this broad interpretation of the War on Terror had lost traction. Americans
were tired from the burden of war, and wanted to refocus on pressing domestic issues.
Obama represented the ideal alternative—a candidate with an ambitious domestic policy
tempered by a constrained foreign policy. While drone strikes were not central to his
foreign policy platform, they were consistent with his foreign policy goal of aggressively
focusing on al-Qaeda leadership while minimizing foreign policy “distractions” such as
Iraq. Nonetheless, the drone program ultimately created by the Obama administration
strayed from these goals. The administration oversaw the drastically widening scope of
132DeYoung, “A CIA veteran transforms U.S. counterterrorism policy,” October 24, 2012, p. 3.
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drone strikes, characterizing the type of unconstrained and indefinite counterterrorism
strategy for which Obama had previously criticized Bush.
Many observers seem to have misinterpreted Obama’s original foreign policy
goals, conflating his political progressivism with dovish foreign policy tendencies.
Obama provided a brief, but telling, critique of liberal foreign policy in his 2006 book.
“The [foreign policy] objectives favored by liberals have merit. But they hardly constitute
a coherent national security policy.”133 Liberals, he argued, did not focus enough on the
real security threats facing the nation. This was a mistake that Obama never intended to
make. A defining moment in Obama’s turn towards a more assertive drone program came
following the Christmas day underwear bomb attempt of 2009. “‘After that [attempted
terrorist attack], as president, it seemed like he felt in his gut the threat to the United
States,’” said Michael E. Leiter, then director of the National Counterterrorism
Center.”134 Obama did not want his presidency to be derailed by a terror attack. In this
regard, his use of drone strikes was successful as the nation did not experience terror
attacks anywhere near the scale of 9/11, allowing Obama to expend political capital on
domestic issues. This contributed to his electoral success in 2012, and largely served the
nation well purely in terms of security.
Valid criticism was levied towards Obama, but on balance, the political calculus
worked in Obama’s favor. The portion of his political base most alienated by drone
strikes were liberal Democrats, who were not at risk of abandoning Obama en masse due
to their shared domestic concerns. A younger Obama may have even opposed such
133 Obama, The Audacity of Hope, 305. 134 Becker and Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” The New York Times, May 29, 2012.
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regular drone strikes, but the role of the presidency brought with it very real political and
security considerations. Needing to address terrorist threats so the one that surfaced on
Christmas day 2009 would not be repeated, and realizing that drone strikes were popular
among the public, the Obama administration intentionally changed the character of the
War on Terror to meet these two needs. However, these same drone strikes also resulted
in very different international political repercussions—further destabilizing regions of the
Middle East and straining alliances. Thus, what suits domestic political needs may be at
odds with international politics. Such international political implications will be
discussed in detail the next chapter.
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The International Politics of US Drone Strikes
The tenuous state of US-Pakistani relations reached a new low on March 17,
2011. The previous day, CIA contractor Raymond Davis—accused of killing two
Pakistanis—was returned to the US. This episode angered many Pakistanis, as they felt
that a US spy had been permitted to get away with murder within their nation’s borders.
By this time in 2011, awareness of US drone strikes in Pakistan was common knowledge,
and support for them was running low. The Davis case fueled the flames of increasing
Pakistani distrust of the US. Further complicating the case was the shadowy role Davis
fulfilled on behalf of the US while in Pakistan. As a New York Times article explained,
“[Davis] wasn’t just another paper-shuffling American diplomat,” but was active in
investigating groups with ties to Pakistan’s Inter-Services Intelligence (I.S.I.) agency.135
This indicated the mistrust the US had of the I.S.I., suggesting a weakening bilateral
relationship.
The day following Davis’ release, the C.I.A. oversaw a signature drone strike in
the North Waziristan region of Pakistan, which killed upwards of 40 people who were
attending a tribal meeting.136 The timing and magnitude of the strike did nothing to quell
the boiling tensions. This strike confirmed the beliefs of the many Pakistanis who felt that
their sovereignty had been infringed. The timing of the strike even confounded
Americans within the State and Defense departments. The US Ambassador to Pakistan at
the time, Cameron Munter, privately expressed his opposition to the strike to the regional
135 Mark Mazzetti, “How a Single Spy Helped Turn Pakistan Against the United States,” The New York Times Magazine, April 9, 2013, http://www.nytimes.com/2013/04/14/magazine/raymond-davis-pakistan.html. 136 Saba Imtiaz, “What Do Pakistanis Really Think About Drones?” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 98-99.
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C.I.A. station chief. The Pakistani news outlet, Dawn, reported that “[Munter] feared the
timing of the attack would further damage ties with Islamabad.”137 Munter’s fears
materialized in the aftermath of the strike. Multiple high-level Pakistani officials strongly
condemned the strike. Pakistan’s Chief of Army Staff, General Ashfaq Parvez Kayani,
stated in a press release, “It has been highlighted clearly that such aggression against
people of Pakistan is unjustified and intolerable under any circumstances.”138 Some level
of US-Pakistani cooperation on security matters existed throughout the War on Terror,
but it became evident that Pakistani leaders began to see it more politically advantageous
to express frustrations with the US than to defend their ally. Drone strikes were not the
root of these tensions, but they did stress tensions.
Strikes—regardless if they successfully reach their target—trigger visceral
reactions among those closely affected. Without any knowledge of when or where the
next may occur, people living in these areas have little assurance that they will not be
future collateral damage. This has psychological effects on people, leading many to
constantly worry.139 The presence of drones has also led to increased Pakistani
resentment to American military involvement in their nation. Stanford and NYU
researchers noted that “US strikes in Pakistan foster anti-American sentiment and
undermine US credibility not only in Pakistan but throughout the region.”140
137 Associated Press, “Timing of US drone strike questioned by Munter,” Dawn, August 2, 2011, https://www.dawn.com/news/648786. 138 “Press Release,” March 17, 2011, Inter Services Public Relations, https://www.ispr.gov.pk/front/main.asp?date=2011/3/17&o=t-press_release. 139 International Human Rights and Conflict Resolution Clinic (Stanford Law School) and Global Justice Clinic (NYU School of Law), Living Under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan (September, 2012), 81. 140 International Human Rights and Conflict Resolution Clinic (Stanford Law School) and Global Justice Clinic (NYU School of Law), Living Under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan (September, 2012), 125.
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Consequently, drone strikes can motivate politicians in targeted nations to express more
anti-American views. The politics of US drone strikes play out very differently in the
domestic and international contexts, resulting in a discontinuity in perception.
An editorial appearing in The Express Tribune, an English-language Pakistani
newspaper, evidenced the deteriorating situation following the March 17th, 2011, drone
strike. “If you connect all the dots, Pakistan and America are going to clash in the near
future. The bilateral equation is virtually at an end.”141 In fighting the War on Terror, the
US seeks to eliminate terrorists and disassemble their organizational structures.
Accomplishing this goal involves the complex task of navigating the politics of drone
strikes in multiple nations across the Middle East. As the previous chapter demonstrated,
drone strikes are a politically prudent course of action in the domestic context. However,
the near-universal opposition to drone strikes abroad complicates US-led
counterterrorism efforts, in some cases undermining American objectives.
This chapter will examine the ways drone strikes are perceived abroad, illustrate
how national leaders in targeted nations navigate drone politics, and explore the
international implications of drone strikes as they have played out within the UN. Special
focus is paid to Pakistan, because its history of drone strikes and its bilateral relationship
with the US make it a compelling case study. From the first strike in Pakistan in 2004,
through the end of 2017, the US had conducted 409 strikes in Pakistan.142 Overarching
conclusions drawn from the drone politics of Pakistan can be applicable to other nations
141 Editorial, “US-Pakistan relations after Raymond Davis,” The Express Tribune, March 20, 2011, https://tribune.com.pk/story/135013/us-pakistan-relations-after-raymond-davis/. 142 “Drone Strikes: Pakistan,” New America, https://www.newamerica.org/in-depth/americas-counterterrorism-wars/.
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targeted by drone strikes, but because many contextual factors vary by nation, this
chapter cannot sufficiently capture the variety of political reactions emanating from
across the region.
Public Opinion Abroad
Public support for drone strikes is consistently low in both the nations in which
these strikes occur, and across the globe. The Pew Research Center’s 2014 Global
Attitudes Survey found that of the 44 nations surveyed, only the US, Israel, Nigeria, and
Kenya had pluralities in support of US drone strikes.143 Even more alarming is the fact
that only 3% of Pakistanis expressed approval of US drone policies,144 which evidences a
significant disconnect between US and Pakistani public opinion.145 This miniscule
approval rating is a disconcerting sign for US counterterrorism efforts. As the previous
chapter discussed, drone strikes became popular domestically because they avoided many
pitfalls of earlier mass counterinsurgency campaigns. The capability of drones to
precisely target terrorists—assuming accurate intelligence and proper execution—should
not theoretically breed as much resentment abroad as other forms of warfare. Why then
does support for targeted drone strikes remain consistently low throughout the Middle
East? This opposition to drone strikes can primarily be attributed to the resultant civilian
deaths that accompany many strikes, and the feeling that national sovereignty has been
infringed by the US.
143 Pew Research Center, “Global Opposition to U.S. Surveillance and Drones, but Limited Harm to America’s Image,” July 14, 2014, p. 5. 144 Pew Research Center, “Global Opposition to U.S. Surveillance and Drones, but Limited Harm to America’s Image,” July 14, 2014, p. 5. 145 See Appendix B for the public opinion on drone strikes in other countries throughout the Middle East.
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Accurately gauging public opinion in areas of conflict is no easy task. In the
places where US drone strikes occur—the tribal regions of Pakistan, ISIS-controlled
territory in Iraq, rural Yemen—there is little access to the outside world. Measuring
public opinion in these locales is difficult because they are either too dangerous for
travel, too geographically isolated, or both. Pakistani journalist Saba Imtiaz commented
on the problem this creates with polling data. “The polls that describe Pakistani opinions
on drones largely report data from cities and regions far from where drones are deployed,
failing to document the experiences of those living in the affected regions.”146 In this
way, public opinion on drone strikes—even within targeted nations—is largely shaped by
secondary sources based in urban areas. However, there is anecdotal evidence that
indicates support for strikes is greater in areas directly targeted by drone strikes, such as
in Pakistan’s Federally Administered Tribal Areas (FATA). Washington Post reporter
Aqil Shah, who surveyed Pakistanis from the FATA, noted that “locals approve of drone
attacks because they viscerally hate the militants and feel betrayed by their own
government.”147 While Shah’s survey was not robust enough to be representative of the
entire tribal population, it suggests that there may be a divide in public opinion between
those living near militants, and those who are more distanced.
First-hand accounts of drone strikes vary greatly based on the reporting source.
The US government warns that local reports can be influenced by terrorist groups seeking
146 Saba Imtiaz, “What Do Pakistanis Really Think About Drones?” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 90. 147 Aqil Shah, “Drone blowback in Pakistan is a myth. Here’s why,” The Washington Post, May 17, 2016, https://www.washingtonpost.com/news/monkey-cage/wp/2016/05/17/drone-blow-back-in-pakistan-is-a-myth-heres-why/?utm_term=.a93e4fd4f924.
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to spread misinformation by exaggerating casualty details about strikes.148 In the chaotic
context of a drone strike, it is difficult to discern between what actually happened on the
ground during a drone strike, and what was reported to have happened. Such conflicting
information impacts the politics of drone strikes, because in the absence of an agreed-
upon account of what happened during a given drone strike, the facts of the strike can be
debated. This allows for different people to accept different sets of facts, leading to
selectively chosen facts.
The Ramifications of Civilian Casualties
While the number of civilian casualties caused by drone strikes remains subject to
a range of estimations, these casualties are tragic for those affected, and serve to hinder
US counterterrorism efforts. As word of civilian casualties spreads, the already abysmal
public opinion of the US and its drone use in these regions is further lowered. Some have
theorized that this disdain for the US and anger of civilian deaths catalyzes further
radicalization. The 2012 Stanford and NYU report on drones in Pakistan asserted, “There
is evidence to suggest that the strikes have aided militant recruitment and motivated
terrorist activity.”149 Similarly, following the initiation of the US drone strike campaign
in Yemen, The Washington Post reported that the messaging used by al-Qaeda in the
Arabian Peninsula (AQAP) shifted to emphasize anti-Americanism. “On their Facebook
pages and in their videos, militants who had been focused on their fight against the
148 Office of the Director of National Intelligence, “Summary of Information Regarding U.S. Counterterrorism Strikes Outside Areas of Active Hostilities,” July 1, 2016, 3. 149 International Human Rights and Conflict Resolution Clinic (Stanford Law School) and Global Justice Clinic (NYU School of Law), Living Under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan (September, 2012), 132.
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Yemeni government now portray the war in the south as a jihad against the United
States.”150 This theory that strikes aid in further radicalization remains subject to debate.
Christopher Swift, fellow at University of Virginia’s Center for National Security Law, is
one such skeptic. He wrote, “In short, the evidence of a direct causal linkage between
drone strikes and terrorist recruiting appears anecdotal at best.” 151 Even if Swift is correct
in claiming drone strikes do not cause radicalization, they nonetheless damage the image
of the US. This delegitimizes broader US efforts, because populations that oppose US
strikes are less likely to view other counterterrorism measures favorably.
The number of reported civilian casualties is lower when referencing US
government data than when referencing non-governmental data. The US government
released a report of its official drone strike data spanning the period from January 20,
2009, to December 31, 2015. These numbers exclude data from Afghanistan, Iraq, and
Syria, as these nations are categorized as “areas of active hostilities.”152 The report stated
that in this period, the US conducted 473 strikes, killing between 2,372 and 2,581
combatants, and between 64 and 116 non-combatants.153 At face value, these numbers
represent a very discriminate air strike campaign. However, nearly every other
organization that tracks these totals estimates much higher casualties—notably for
civilians. The official report explained that “the U.S. Government uses post-strike
methodologies that have been refined and honed over the years and that use information
150 Sudarsan Raghavan, “In Yemen, U.S. airstrikes breed anger, and sympathy for al-Qaeda,” The Washington Post, May 29, 2012, https://www.washingtonpost.com/world/middle_east/in-yemen-us-airstrikes-breed-anger-and-sympathy-for-al-qaeda/2012/05/29/gJQAUmKI0U_print.html. 151 Christopher Swift, “The Boundaries of War?” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 81. 152 Office of the Director of National Intelligence, “Summary of Information Regarding U.S. Counterterrorism Strikes Outside Areas of Active Hostilities,” July 1, 2016, 1. 153 Office of the Director of National Intelligence, “Summary of Information Regarding U.S. Counterterrorism Strikes Outside Areas of Active Hostilities,” July 1, 2016, 1.
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that is generally unavailable to non-governmental organizations.”154 The report only
released aggregate data, though, preventing non-governmental organizations from being
able to compare their data to the government report on a strike-by-strike basis.
Further complicating the data is the exclusion of strikes from areas of active
hostilities. Separate government numbers indicate 12,354 US airstrikes (both manned and
unmanned) occurred in Syria and Iraq in the campaign against ISIS between 2014 and
2016, resulting in only 119 civilian deaths.155 Foreign policy scholar Micah Zenko
questioned the accuracy of these numbers, noting that they imply only .009 civilian
deaths for each airstrike in Iraq and Syria.156 While airstrikes can be accurate, this level
of precision is unrealistic. A special report by the New York Times concluded that
coalition airstrikes against ISIS resulted in civilian casualties at a rate 31 times higher
than officially acknowledged.157 Most non-governmental organizations do not have strike
data for Iraq and Syria, though, making it more difficult to analyze the scope and
magnitude of drone strikes in these nations.
Multiple organizations keep robust drone strike databases that track the numbers
of strikes and civilian casualties in Pakistan and Yemen (see Appendix A). During the
same timespan measured by the US government drone strike report, The Bureau of
Investigative Journalism reported a minimum of 256 civilians killed by drone strikes in
154 Office of the Director of National Intelligence, “Summary of Information Regarding U.S. Counterterrorism Strikes Outside Areas of Active Hostilities,” July 1, 2016, 2. 155 Micah Zenko, “U.S. Airstrikes in Iraq and Syria, Versus Drone Strikes in Pakistan, Yemen, and Somalia,” Council on Foreign Relations, November 10, 2016, https://www.cfr.org/blog/us-airstrikes-iraq-and-syria-versus-drone-strikes-pakistan-yemen-and-somalia. 156 Micah Zenko, “U.S. Airstrikes in Iraq and Syria, Versus Drone Strikes in Pakistan, Yemen, and Somalia,” Council on Foreign Relations, November 10, 2016, https://www.cfr.org/blog/us-airstrikes-iraq-and-syria-versus-drone-strikes-pakistan-yemen-and-somalia. 157 Azmat Khan and Anand Gopal, “The Uncounted,” The New York Times Magazine, November 16, 2017, https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html?_r=0.
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Pakistan alone.158 The New America think tank similarly reported higher numbers than
the government, estimating between 129 and 162 civilian deaths in Pakistan during the
Obama administration.159 These totals for Pakistani civilian casualties are higher than the
government numbers, which include data from strikes in Pakistan, Yemen, and Somalia
combined. This illustrates why many are skeptical of the government’s numbers. A 2012
New York Times article offered a possible explanation for the low casualty counts. It
explained that the government methodology “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.”160 The government’s 2016
report disputed this assertion, but remained vague in the description of its own
methodology. Consequently, the number of civilian deaths from drone strikes remains a
point of contention.
These civilian casualties from drone strikes are a primary reason why many in
affected areas remain opposed to drones even when they simultaneously disapprove of
terror groups. Civilians largely oppose the terrorist organizations in their communities,
because these groups commit regular local acts of violence. For example, a 2016
bombing carried out by Taliban affiliates in Lahore, Pakistan, killed more than 70
civilians on Easter.161 Accordingly, public opinion of terror groups is low. The Pew
158 “Drone Warfare,” The Bureau of Investigative Journalism, Data accessed February 18, 2018, https://www.thebureauinvestigates.com/projects/drone-war. 159 “America’s Counterterrorism Wars: Drone Strikes: Pakistan,” New America, https://www.newamerica.org/in-depth/americas-counterterrorism-wars/pakistan/. 160 Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” The New York Times, May 29, 2012, http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html. http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html?_r=0 161 “Lahore attack: Pakistan PM Sharif demands swift action on terror,” BBC, March 28, 2016, http://www.bbc.com/news/world-asia-35910124.
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Research Center found that only 6% of Pakistanis have favorable views of the Taliban,
and 7% have favorable views of al-Qaeda.162 These numbers indicate that large majorities
abroad agree that terrorism is dangerous, but disagree that drone strikes are the solution
to the problem. An interviewed resident of Waziristan, a tribal region in Pakistan,
explained the complexities of the situation. “I don’t object to this program. I like the
technology. It is precise and effective.”163 However, he qualified this claim, stating, “I
fear becoming part of the ‘collateral damage’ when missiles from the drones hit a car in
the bazaar, a mosque, or a school.”164 Anecdotal evidence indicates that many civilians
affected are amenable to the idea of strikes so long as there will not be civilian casualties.
One Yemeni interviewed in 2012 explained, “[Drone strikes] were very bad in 2009, but
now the drones are seen as helping us…we can accept them as long as there are no more
civilian casualties.”165 Both terrorists and drone strikes kill innocent people, so it is
imperative for drones to be precise so local populations see a significant differentiation
between the dangers posed by both.
There is a critical difference between so-called “signature” and “personality”
drone strikes, and the potential for civilian casualties each type of strike poses.
Personality drone strikes are what most Americans likely envision when they think of a
162 Jacob Poushter, “Prior to Lahore bombing, Pakistanis were critical of Taliban and other extremist groups.” Pew Research Center, March 30, 2016. http://www.pewresearch.org/fact-tank/2016/03/30/prior-to-lahore-bombing-pakistanis-were-critical-of-taliban-and-other-extremist-groups/. 163 Pir Zubair Shah interviewing “Adam Khan,” “No One Feels Safe,” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 346. 164 Pir Zubair Shah interviewing “Adam Khan,” “No One Feels Safe,” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 345. 165 Christopher Swift, “The Boundaries of War?” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 82.
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strike. These strikes target individuals known to be active within terrorist organizations,
which often places these individuals on “kill lists.” Under the Obama administration, “the
President acts as the final decision maker, at least with respect to the decision to carry out
‘personality strikes’ targeting named individuals.”166 Signature strikes, on the other hand,
do not target known terrorists. Rather, they pre-emptively target compounds or
individuals who are presumed to be affiliated with terrorists based on characteristics
obtained via intelligence. The danger of this is that the identity of the targets is unknown,
and what may appear from the air to be a terrorist training ground may be something very
different. A New York Times article detailed the friction this caused between the State
Department and the CIA. “The joke was that when the C.I.A. sees ‘three guys doing
jumping jacks,’ the agency thinks it is a terrorist training camp, said one senior
official.”167 While this comment was made as a joke, there is some truth to this sentiment.
Strikes such as the one that came in the aftermath of the Raymond Davis case evidence
the number of civilian casualties that can result from signature strikes.168 The efficacy of
these strikes is only as good as the intelligence that guides them. Signature strikes also
pose just war concerns, as the targeting of plain-clothed individuals who are not known to
be combatants neglects the principle of discrimination.
166 International Human Rights and Conflict Resolution Clinic (Stanford Law School) and Global Justice Clinic (NYU School of Law), Living Under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan (September, 2012), 14. 167 Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” The New York Times, May 29, 2012, http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html. 168 The US government reported that this strike mostly killed enemy combatants, but multiple Pakistani sources reported that most casualties were civilians. Regardless of the exact numbers of civilian casualties one accepts, this strike targeted a tribal meeting that included some number of civilians in attendance.
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Defending National Pride and Sovereignty
Another political implication of drone strikes is that they breed opposition
because they are considered an affront to sovereignty. National pride remains a powerful
force among peoples worldwide, leading some to oppose measures that relinquish any
degree of sovereignty. Even when peoples abroad may agree on the necessity of
counterterrorism measures, they oppose the US conducting these operations. There is fear
that the US has too much control within their region, and will override their national
interests. Religious scholar David True notes, “Opposition to US drone strikes is
intensified by contextual factors, the most obvious of which is the identification of a
foreign power with a history of colonialism.”169 Misgivings about American intervention
are thus not specific to drones, but rather draw from more general skepticism of
American involvement in the Middle East. One member of the Yemeni Socialist Party
explained, “Drones remind us that we don’t have the ability to solve our problems by
ourselves. If these were Yemeni drones, rather than American drones, there would be no
issue at all.”170 National leaders in both the US and Middle Eastern nations are aware of
these contextual factors, and in some cases, have tried to counter these challenges by
shrouding US involvement in drone strikes in secrecy.
The history of US drone strikes in Pakistan, which began in 2004, illustrates the
complicated politics of drone strikes. For years, the US took no public responsibility for
169 David True, “Disciplining Drone Strikes,” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 290. 170 Christopher Swift, “The Boundaries of War?” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 81.
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involvement in Pakistan drone strikes.171 This was ostensibly an intentional decision
agreed upon by leaders of both nations. Professor of Islamic history Brian Glyn Williams
attributes this denial of US involvement—even in the aftermath of the successful 2004
killing of prominent militant Nek Muhammad—to the fact that “the Pakistanis did not
want the negative public relations fallout that would come from a public
acknowledgement of the fact that a foreign power was acting in its own interests to kill
Pakistani citizens on Pakistani soil.”172 Essentially, it was foreseen that US strikes within
Pakistan would not be well-received. Nevertheless, then-Pakistani President Pervez
Musharraf consented to drone strikes. In 2013, he admitted to such, albeit with the
qualification that he only approved strikes that had “no chance” of civilian deaths.173 The
illusion that strikes were being carried out by Pakistan’s military quickly wore off. A
2006 Dawn article on a strike in the Bajaur region quoted a local man saying, “I have no
doubt in my mind that it was done by the Americans and we are now making a futile
attempt to cover it up.”174 Neither government had yet admitted to US involvement, but
the mere presence of drones in the sky made it rational for people to conclude that only
the US had this capability.
171 Saba Imtiaz, “What Do Pakistanis Really Think About Drones?” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 92. 172 Brian Glyn Williams, “Death from the Skies: An Overview of the CIA’s Drone Campaign in Pakistan – Part One,” Terrorism Monitor, Volume: 7 Issue: 29. September 25, 2009, https://jamestown.org/program/death-from-the-skies-an-overview-of-the-cias-drone-campaign-in-pakistan-part-one/. 173 Saba Imtiaz, “What Do Pakistanis Really Think About Drones?” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 92. 174 Anwarullah Khan, “82 die as missiles rain on Bajaur: Pakistan owns up to strike; locals blame US drones,” Dawn, October 31, 2006, https://www.dawn.com/news/216918.
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As the Pakistani public caught on to the reality that the US was conducting drone
strikes in their territory, it increased the opposition to drones. A 2009 Pew study found
that 82% of Pakistanis believed the US was responsible for missile strikes from drones,
and 58% believed this was done without their government’s approval.175 Furthermore,
public approval of the Pakistani government seemed to drop in tandem with the
realization that the US was responsible for drone strikes in Pakistan. From 2007 to 2009,
favorability of the Pakistani national government dropped from 59% to 40%.176 The
strategy of denying US involvement appeared temporarily successful in protecting
Pakistan’s government from blowback, but by 2009 knowledge of US-led drone strikes
was widespread and public opinion had soured.
In more recent years, criticism of the US in Pakistan has been less muted. By the
time of the Raymond Davis case, all pretext of civility had been lost. However, Pakistani
politicians behind the scenes continued to consent to strikes. In a statement released by
WikiLeaks in partnership with Dawn, Yousaf Raza Gilani, Pakistani Prime Minister from
2008 to 2012, explained, “I don’t care if they do it [drone strikes] as long as they get the
right people. We’ll protest in the National Assembly and then ignore it.”177 This recurring
pattern of condemnation when civilians are killed, but ultimately no fundamental
changes, has opened the door for politicians who have taken more hardline approaches.
Imran Khan, a former star cricket player, is one such politician whose ascendancy can be
175 “Pakistani Public Opinion: Growing Concerns About Extremism, Continuing Discontent with U.S.” Pew Research Center, August 13, 2009. http://www.pewglobal.org/files/pdf/265.pdf, 12. 176 “Pakistani Public Opinion: Growing Concerns About Extremism, Continuing Discontent with U.S.” Pew Research Center, August 13, 2009. http://www.pewglobal.org/files/pdf/265.pdf, 41. 177 Saba Imtiaz, “What Do Pakistanis Really Think About Drones?” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 97.
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attributed in part to his anti-drone positions. After the March 17th, 2011 strike in
Waziristan, Khan held a rally in opposition to Pakistan’s government and the US. He
proclaimed, “Pakistan rulers have sold its citizens’ blood to the United States and its
allies in exchange for dollars.”178 In 2013, Khan and some 10,000 supporters staged a sit-
in in Peshawar, demanding an end to strikes and pledging to block NATO supply
routes.179 This movement translated to electoral success, with Khan’s party gaining a
majority in the Khyber Pakhtunkhwa Province 2013 election.180 This political trend
benefits Pakistani politicians that focus on defending national sovereignty, which can
manifest itself in anti-American foreign policy platforms—highlighting a drawback of
drone strikes.
Such skepticism of the US in Pakistan was broad-based, and increased over time.
A 2014 Pew survey found that a plurality of Pakistanis viewed the US as their country’s
greatest threat.181 Furthermore, US favorability ratings in Pakistan decreased from 21% in
2004, when the drone strikes in Pakistan began, to 14% in 2014.182 These low
favorability ratings explain why support for US drone strikes against extremists remained
negligible, while 58% of Pakistanis surveyed in 2015 expressed support for the Pakistan
army to fight extremists.183 This has paved the path for politicians like Khan to rise to
178 Manzoor Ali, “Imran Khan delivers ultimatum on drone strikes,” The Express Tribune, April 24, 2011, https://tribune.com.pk/story/155105/nato-supplies-halted-ahead-of-pti-protest/. 179 “Thousands protest against drone strikes in Peshawar,” Dawn, November 23, 2013, https://www.dawn.com/news/1058051. 180 Saba Imtiaz, “What Do Pakistanis Really Think About Drones?” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 101. 181 Pew Research Center, “Global Opposition to U.S. Surveillance and Drones, but Limited Harm to America’s Image,” July 14, 2014, p. 81. 182 Pew Research Center, “Global Opposition to U.S. Surveillance and Drones, but Limited Harm to America’s Image,” July 14, 2014, p. 14. 183 Jacob Poushter, “Prior to Lahore bombing, Pakistanis were critical of Taliban and other extremist groups.” Pew Research Center, March 30, 2016. http://www.pewresearch.org/fact-
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prominence, and has compelled more mainstream Pakistani politicians to adopt that same
rhetoric. Nawaz Sharif, Pakistan’s Prime Minister from 2013 through 2017, highlighted
his opposition to drone strikes publicly following a 2013 White House meeting with
President Obama. Sharif told the media, “I also brought up the issue of drones in our
meeting, emphasising the need for an end to such strikes.”184 While that meeting did not
put an end to drone strikes, it illustrated the political reality that had taken root. The
bilateral relationship continued because each government had interests in maintaining it,
but Pakistan’s leaders felt the need to vocalize opposition to drone strikes to reflect
Pakistani public opinion. There is agreement between both nations that terrorism is a
threat that must be dealt with, but significant division remains between the two countries
on the utility of US drones in solving these issues. Drone strikes in Pakistan highlight the
discontinuity between the US and many other countries on this issue.
Global Politics of Drone Strikes
US drone strikes have simultaneously produced global opposition, and have
catalyzed global competition in the development of drones. Opinion on drones—as with
many military technologies—is polarized along the lines of who one’s allies are, and who
has access to said technology. Despite widespread opposition to US drone strikes, the US
has predictably found support abroad in nations with similar interests. The UK and Israel,
for example, are both US allies, and are also the only two other countries who are
tank/2016/03/30/prior-to-lahore-bombing-pakistanis-were-critical-of-taliban-and-other-extremist-groups/. 184 “Pakistan PM Sharif urges Obama to end drone strikes,” BBC, October 24, 2013, http://www.bbc.com/news/world-us-canada-24648489.
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confirmed to have used drones in combat.185 Because of the convergence of interests and
technology amongst these three countries, their support for drone strikes is shared. While
the US is presently the focus of many drone-related debates, other nations are rapidly
developing their own drone technology. The global politics of drones is dynamic, and
will continue to develop based on which countries acquire this technological capability.
The international politics of drone strikes have played out within the UN, where
legality and human rights considerations have taken center stage. A 2011 resolution
entitled, “Protection of human rights and fundamental freedoms while countering
terrorism,” overviewed how counterterrorism efforts must be conducted in relation to
human rights. While this resolution did not explicitly mention drone strikes, it informed
international human rights expectations. It urges states countering terrorism, “To ensure
that their laws criminalizing acts of terrorism are accessible, formulated with precision,
non-discriminatory, non-retroactive and in accordance with international law, including
human rights law.” 186 The US government has argued that its internal policies align with
all relevant laws.187 However, other nations have employed these same human rights
standards to challenge the transparency and discrimination of US strikes.
Drone strike debates in the UN have often resulted in criticism of the US for its
practices. Pakistan’s former ambassador to the UN, Masood Khan, argued for the
cessation of US drone strikes. Khan said in 2013, “We hope that the United States would
185 Peter Bergen and Jennifer Rowland, “World of Drones,” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 300. 186 Resolution adopted by the General Assembly on 19 December 2011, “66/171. Protection of human rights and fundamental freedoms while countering terrorism,” http://undocs.org/A/RES/66/171, p. 5. 187 The US government’s legal justification for strikes will be discussed in Chapter 4.
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respond to this urgent call from Pakistan anchored in international humanitarian law.”188
By 2014, the UN Human Rights Council had adopted a resolution sponsored by Pakistan,
recommending that drone strikes be done in accordance with international and
humanitarian law.189 This resolution, “Calls upon States to ensure transparency in their
records on the use of remotely piloted aircraft or armed drones.”190 This provision was
ostensibly directed at the US—the only country that has carried out a significant number
of drone strikes. Accordingly, the US was one of the six nations that voted in opposition
to the resolution.191 This resolution also initiated a special panel on the topic of drone
strikes at the UN Human Rights Council’s 27th session in 2014.
The 2014 UN Human Rights Council drone strike panel session did little, if
anything, to change drone strike practices. However, it revealed the positions multiple
nations took on this matter, and the factors that influenced these positions. Pakistan,
which compelled debate on this subject, predictably staked out a position in staunch
opposition. The official Pakistani statement read, “Indiscriminate signature attacks, lack
of operational transparency and accountability, opaque and vague chain of command,
ambiguous and questionable decision making process and accompanied ‘collateral
188 AFP, “Pakistan makes call for end to US drone strikes at UN committee,” The Express Tribune, October 26, 2013. https://tribune.com.pk/story/622720/pakistan-makes-call-for-end-to-us-drone-strikes-at-un-committee/. 189 United Nations Human Rights Council resolution, “Ensuring use of remotely piloted aircraft or armed drones in counter-terrorism and military operations in accordance with international law, including international human rights and humanitarian law,” A/HRC/25/L.32, March 24, 2014, http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/25/L.32. 190 United Nations Human Rights Council resolution, “Ensuring use of remotely piloted aircraft or armed drones in counter-terrorism and military operations in accordance with international law, including international human rights and humanitarian law,” A/HRC/25/L.32, March 24, 2014, http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/25/L.32, 2. 191 Ryan Goodman, “United Nations Human Rights Council Adopts Resolution Calling for Drone Transparency and Accountability,” Just Security, March 28, 2014, https://www.justsecurity.org/8712/unhrc-adopts-drones-resolution/.
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damage’ during the use of armed drones are tantamount to extrajudicial killings and
summary executions.”192 Participating nations that aligned most closely with Pakistan’s
position included some usual critics of US policy, such as Cuba and Iran.193 The US
found the most support for its drone strike policies from the UK, which touted the
potential benefits of drones. “[Drone] capabilities allow for a more considered approach
to battlefield decision-making that can and will save lives.”194 The middle ground
expressed was that drone strikes are not inherently illegal, but that there must be more
accountability and transparency surrounding strikes. While the panel did not endeavor to
exclusively discuss US drone strike practices, it went unsaid that US policies were at the
center of the debate. Drone strikes have become so synonymous with US
counterterrorism practices that any given nation’s position on this matter can often be
predicted by studying their relationship with the US, as this UN panel illustrated.
Numerous nations have weighed in on US drone strikes, but behind the scenes,
many have also been working to develop military drone capabilities of their own. As with
any emerging military technology, there is a sort of arms race that is occurring in terms of
development. While there were just 195 drone development programs in the world in
2005, by 2011 that number increased to around 680.195 This means that many
192 Statement by Pakistan, Panel Discussion on “Ensuring use of remotely piloted aircraft or Armed Drones in Counter-terrorism and Military Operations in accordance with International Law, including International Human Rights and Humanitarian Law,” September 22, 2014, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/27thSession/OralStatements/11_Pakistan_PD_28.pdf, 2. 193 Cuba was a co-sponsor of the resolution (A/HRC/25/L.32), and Iran submitted comments critical of drones via their role as an observer state during the panel discussion on September 22, 2014. 194 “UK Statement for Panel on RPAs,” UN Human Rights Council Extranet, September 22, 2014, https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/27thSession/OralStatements/6_United%20Kingdom_PD_28.pdf, 2. 195 Peter Bergen and Jennifer Rowland, “World of Drones: The Global Proliferation of Drone Technology,” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 301.
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governments in the world are investing in drone technology. The US has been privileged
to experience a technological advantage in drones throughout the 21st century, but it must
be careful in the precedent it sets. With emerging drone capabilities globally, scholars
Peter Bergen and Jennifer Rowland posit, “one could imagine that India in the not-too-
distant future might launch such attacks against suspected terrorists in Kashmir, or China
might strike Uighur separatists in western China.”196 The political ramifications of US
drone strikes do not merely affect perceptions of the US, they will also inform how other
nations manage their drones in the future.
There is evidence that this future, in which numerous nations employ drones, may
have already arrived. One of the largest civilian drone manufacturers is the Chinese-
based company, DJI. A 2017 memo from US Immigration and Customs Enforcement
claims “with moderate confidence that Chinese-based company DJI Science and
Technology is providing U.S. critical infrastructure and law enforcement data to the
Chinese government.”197 Essentially, any footage taken on a DJI drone could be sent
back to the company’s servers in China, which the Chinese government can ostensibly
access. This poses a risk because any DJI drone footage captured in military bases, law
enforcement operations, or otherwise sensitive areas is potentially compromised. This
represents a different application of drones than their employment for targeted strikes.
However, China is also one of six nations that already has armed drone capabilities.198
196 Peter Bergen and Jennifer Rowland, “World of Drones: The Global Proliferation of Drone Technology,” in Drone Wars: Transforming Conflict, Law, and Policy, 303. 197 Homeland Security Investigations, SAC Intelligence Program Los Angeles, “Da Jiang Innovations (DJI) Likely Providing U.S. Critical Infrastructure and Law Enforcement Data to Chinese Government,” August 9, 2017, https://info.publicintelligence.net/ICE-DJI-China.pdf, 1. 198 Peter Bergen and Jennifer Rowland, “World of Drones: The Global Proliferation of Drone Technology,” in Drone Wars: Transforming Conflict, Law, and Policy, 305.
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Whatever monopoly the US may have had on armed drone technology is disappearing,
and we are entering a multipolar era of drone technology.
International Politics: What It Means for Drones
There remains a significant gap in the way drone strikes are perceived in the US,
and in nations abroad. The opposition they garner abroad has significant political
implications, as they enable anti-American sentiments to gain traction. An official
Pakistani statement at a UN panel explained, “The use of armed drones injects mass
hatred in a population further nurturing and fueling terrorism.”199 This tension between
drone strikes and broader diplomatic goals is not lost among diplomats. Former Pakistani
ambassador to the US Sherry Rehman explained, “the program that is on the frontlines of
how the U.S. projects its power remains largely covert in America, while in Pakistan…it
becomes the visual, tangible embodiment of an unremitting public challenge to the state
and people of Pakistan.”200 The challenge in fighting terrorism is that it requires the
employment of both hard and soft power. The conventional use of force is not always the
most prudent path forward, because it can fail to change minds. Drones are an effective
means of hard power, but the simultaneous employment of complementary tactics is
required to combat terrorism.
On a more fundamental level, drones do little to change the existing conditions
that originally cultivated radicalization. Terrorist groups thrive in areas that are
199 Statement by Pakistan, Panel Discussion on “Ensuring use of remotely piloted aircraft or Armed Drones in Counter-terrorism and Military Operations in accordance with International Law, including International Human Rights and Humanitarian Law,” 2. 200 Saba Imtiaz, “What Do Pakistanis Really Think About Drones?” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 95.
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disenfranchised—whether economically, politically, or socially—by providing people
with power and a message. Drone strikes seek to target the products of radicalization, but
not the source, leaving people in a similar situation that they began in. Christopher Swift
reported on this phenomena in Yemen. “Even if drone strikes were to cease, noted one
tribal military commander, the economic and social conditions that facilitate terrorist
recruiting in Yemen would still remain.”201 Successful strikes are thus insufficient at
solving the cause of terrorism, because the moment strikes stop, the conditions fostering
radicalization may persist.
The rock-bottom popularity of drone strike in Pakistan—and the generally low
popularity across the globe—do not bode well for US counterterrorism efforts.
Knowledge of drone strike civilian casualties, which likely totals in the hundreds in
Pakistan alone,202 has informed much of this opposition. The actual number of civilian
casualties is unknown, because conflicting reports and inadequate information do not
allow for concrete facts to be ascertained. Nonetheless, it is indisputable that drones have
killed dozens of civilians in areas that the US government does not classify “areas of
active hostilities.” This has led many people and nations to consider such strikes as unjust
and illegal. Compounding this is the notion that drones are an affront to national
sovereignty. The presence of a global superpower carrying out aerial counterterrorism
missions has not been well-received in Pakistan. While the Pakistani government
consented to at least some of the US strikes within their borders, doing so has come at the
cost of declining trust in government among Pakistanis.
201 Christopher Swift, “The Boundaries of War?” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 80. 202 See Appendix B.
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Despite the shortcomings of drone strikes, they are not going away anytime soon.
Multiple nations now have drone strike capabilities, and many more are developing such
capabilities, so the US must tread carefully in navigating the politics of this issue. If the
US government continues publishing civilian casualty numbers that are improbably low,
continues authorizing signature drone strikes, and continues consistently conducting
strikes outside areas of active hostilities, this will set a dangerous precedent for other
nations. As armed drones become more ubiquitous, the laws and expectations that inform
their usage will in turn become more important. The legal and policy framework that has
been constructed to support US drone strikes will be the focus of the next chapter.
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Appendix A: Comparison of drone strike data from different sources
Source: Location: Strikes: Combatant
Deaths
Non-
Combatant
Deaths
US Government
(January 20, 2009 to
December 31,
2015)203
All areas that
are not “areas
of active
hostilities”
473 2,372 - 2,581 64-116
The Bureau of
Investigative
Journalism (During
Obama
administration)204
Pakistan 375 1,838 – 2,781 257 – 634
Yemen 162 668 – 930 133 – 170
Pakistan and
Yemen
combined
537 2,506 – 3,711 390 – 804
New America
(During Obama
administration) 205
Pakistan 353 1,659 – 2,683 129 – 162
Yemen 183 968 – 1,235 89 – 101
Pakistan and
Yemen
combined
536 2,627 – 3,918 218 – 263
Long War Journal
(During Obama
administration) 206
Pakistan 346 n/a n/a
Yemen 174 n/a n/a
Pakistan and
Yemen
combined
520 n/a n/a
203 Office of the Director of National Intelligence, “Summary of Information Regarding U.S. Counterterrorism Strikes Outside Areas of Active Hostilities,” July 1, 2016. 204 “Drone Warfare,” The Bureau of Investigative Journalism, https://www.thebureauinvestigates.com/projects/drone-war. 205 “America’s Counterterrorism Wars: Tracking the United States’ drone strikes and other operations in Pakistan, Yemen, and Somalia,” New America, https://www.newamerica.org/in-depth/americas-counterterrorism-wars/. 206 “US airstrikes in the Long War,” FDD’s Long War Journal, https://www.longwarjournal.org/us-airstrikes-in-the-long-war.
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Appendix B: Public opinion of drone strikes in the US and polled Middle Eastern nations
Question: Do you approve or disapprove of the United States conducting missile
strikes from pilotless aircraft called drones to target extremists in countries such as
Pakistan, Yemen and Somalia?
(Pew Research Center)
Year Approve Disapprove Don’t
Know/Refused
United States Spring 2014 52% 41% 7%
Spring 2013 61% 30% 8%
Spring 2012 62% 28% 10%
Jordan Spring 2014 5% 90% 5%
Spring 2013 4% 87% 9%
Spring 2012 6% 85% 9%
Egypt Spring 2014 4% 87% 8%
Spring 2013 5% 89% 6%
Spring 2012 6% 89% 5%
Pakistan Spring 2014 3% 66% 30%
Spring 2013 5% 68% 27%
Spring 2012 No Data No Data No Data
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The Legality of US Drone Strikes
On September 30th, 2011, the CIA carried out a drone strike in the Al-Jawf
Governorate in Yemen, killing four. According to The Bureau of Investigative
Journalism, this was the 30th US drone strike in Yemen.207 The individuals killed were
leaders within Al-Qaeda in the Arabian Peninsula (AQAP). While the strike resembled
dozens of preceding and subsequent strikes, what made this specific strike controversial
was the fact that those killed included two American citizens—Anwar al-Awlaki, the
target of the strike, and Samir Khan. This sparked new conversation about law and drone
strikes. The following day, a critical op-ed appeared in The New York Times. “The
accusations against him [al-Awlaki] were very serious, but as a citizen, he deserved a fair
trial and the chance to face his accusers in a court of law.”208 Despite the criticism, the
Obama administration remained consistent in their position that the strike was legal and
necessary. Immediately following the strike, President Obama proclaimed, “The death of
al-Awlaki marks another significant milestone in the broader effort to defeat al Qaeda
and its affiliates.”209 This debate about the legality of drone strikes—especially those
targeting American citizens—played out in subsequent years within the courts of law and
public opinion.
Anwar al-Awlaki had a long history in the spotlight. Following the attacks of
9/11, al-Awlaki, who was then an Imam for a mosque near Washington, D.C., became a
207 “Yemen: Reported US covert actions 2001-2011,” The Bureau of Investigative Journalism, https://www.thebureauinvestigates.com/drone-war/data/yemen-reported-us-covert-actions-2001-2011. 208 Yasir Qadhi, “An Illegal and Counterproductive Assassination,” The New York Times, October 1, 2011, https://www.nytimes.com/2011/10/02/opinion/sunday/assassinating-al-awlaki-wascounterproductive.html?rref=collection%2Ftimestopic%2FAwlaki%2C%20Anwar%20al-. 209 Barack Obama, “Remarks by the President at the "Change of Office" Chairman of the Joint Chiefs of Staff Ceremony” (speech, Fort Myer, Virginia, September 30, 2011), The Obama White House, https://obamawhitehouse.archives.gov/the-press-office/2011/09/30/remarks-president-change-office-chairman-joint-chiefs-staff-ceremony.
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prominent voice of tolerant Islam in the US. His stature rose in tandem with the media
appearances he made for news outlets that sought post-9/11 perspectives from Muslim
Americans. A New York Times profile noted, “He seemed to be quite self-consciously
auditioning for a dual role: explainer of Islam to America and of America to Muslims.”210
However, over the course of the next decade, dramatic developments led him to become
one of America’s most-wanted terrorists. Al-Alwaki moved to Yemen in 2004, and later
became affiliated with AQAP. His involvement in AQAP implicated him with various
terror plots—notably, the orchestration of the 2009 Christmas day airplane bombing
attempt. By that time, al-Awlaki was well in the sights of the US intelligence community.
In fact, on December 24th, 2009, the day prior to the attempted bombing, the first drone
strike known to have targeted al-Awlaki occurred.211 This strike was unsuccessful, but it
set the precedent that the US could target its own citizens.
The Christmas day bombing attempt grabbed President Obama’s attention,
consequently throwing al-Awlaki into the center of drone strike targeting conversations.
Following the thwarted catastrophe, Obama reportedly said in a meeting with
administration officials, “he [attempted bomber Umar Farouk Abdulmutallab] could have
gotten it right and we’d all be sitting here with an airplane that blew up and killed over a
hundred people.”212 Countering the threat posed by al-Awlaki was not straightforward.
Obama campaigned against an all-encompassing global War on Terror, and Yemen was
210 Scott Shane, “The Lessons of Anwar al-Awlaki,” The New York Times Magazine, August 27, 2015, https://www.nytimes.com/2015/08/30/magazine/the-lessons-of-anwar-al-awlaki.html. 211 Yemen: Reported US covert actions 2001-2011,” The Bureau of Investigative Journalism, https://www.thebureauinvestigates.com/drone-war/data/yemen-reported-us-covert-actions-2001-2011. 212 Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” The New York Times, May 29, 2012. http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html.
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certainly an extension of the war’s existing battlefield. Obama desired to neutralize
AQAP, but presumably did not want to go to war in Yemen. Further complicating the
case was the web of intersecting legal considerations. Would a targeted strike constitute
an assassination prohibited by Executive Order 12333? Would President Obama have to
report to Congress regarding US counterterrorist operations in Yemen as prescribed by
the War Powers Resolution? Can the US target one of its own citizens without violating
the due process protections of the Fourth and Fifth amendments? These overlapping legal
considerations provide different lenses through which to analyze the case of al-Awlaki,
but provide few clear-cut answers.
The Obama administration repeatedly asserted their solid legal basis for drone
strikes. Lawyer and journalist Jameel Jaffer noted that “what they [senior Obama
administration officials] emphasized most of all is that the drone strikes they authorized
were lawful.”213 This stress on lawfulness can seemingly be attributed to two factors.
First, the Obama administration sought to distinguish themselves from the perceived lack
of adherence to international legal standards demonstrated by the Bush administration in
their war efforts. Duke law professor Curtis Bradley evidenced this belief, noting, “The
standard view of the Bush Administration’s relationship to international law is something
like this: The Administration did not take international law seriously and routinely
disregarded it whenever it was thought to conflict with the national interests of the
country.”214 Secondly, the legalistic disposition of the Obama administration reflected the
law background that Obama and many of his advisors came from. Attorney General Eric
213 Jameel Jaffer, The Drone Memos (New York: The New Press, 2016), 2. 214 Curtis A. Bradley, “The Bush Administration and International Law: Too Much Lawyering and too Little Diplomacy,” Duke Journal of Constitutional Law & Public Policy, Vol. 4:57 (2009): 57-75, https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1035&context=djclpp, 57.
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Holder reportedly claimed that President Obama himself missed the legal profession
during his presidency.215 These two factors informed the Obama administration’s
continued emphasis on the legality of drone strikes.
Laws, however, do not necessarily act as constraints on war. This is because the
laws of armed conflict rarely foresee the future technological developments of weapons,
and even when they do, these laws remain open to a range of interpretations. Thus, in
many cases, law can serve as a justification in war. Legal scholar David Kennedy
critiqued the utility of international law in his book, Of Law and War. He wrote, “We no
longer need to decide for ourselves whether war is civilized, whether killing this civilian
is a good idea, whether attacking the town is ethically defensible. The law of armed
conflict will do that for us.”216 While Kennedy does not include drones in his analysis,
their applicability to his ideas is relevant. Many of the determinations made about when,
where, and why to strike are driven by legal calculations.
There is little debate about whether the mere usage of drones in war is legal.
Christof Heyns, the UN's special rapporteur on extrajudicial, summary or arbitrary
executions, asserted their legality in 2013. “It is difficult to suggest that a weapon system
is unlawful because a pilot is not on board.”217 Rather, the more pertinent legal questions
about drones address the breadth of their deployment, the process taken in determining
their targets, and the transparency surrounding their usage.
215 Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” The New York Times, May 29, 2012, http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html. 216 David Kennedy, Of War and Law, (Princeton: Princeton University Press, 2006), 141. 217 Ed Pilkington and Ryan Devereaux, “US defends drone strikes as 'necessary and just' in face of UN criticism,” The Guardian, October 25, 2013, https://www.theguardian.com/world/2013/oct/25/un-drones-us-policy-debate.
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International Law and Its Historical Foundations
International laws have long attempted to regulate the relations between nations
via the implementation of common standards and rules. War is arguably the most violent
human activity, so if it cannot be wholly prevented, these laws of armed conflict aim to
mitigate the damage inflicted. Laws of armed conflict are a longstanding concept that
have borrowed a great deal from the Just War tradition. As philosophers like St.
Augustine and Thomas Aquinas theorized about when and how a war could be just, it
compelled thought by political and legal figures about how to put such ideas into
practice. Kennedy explained the early overlapping between religion and international
law. “Early [international] legal texts drew heavily on religious thinking—indeed, they
were sometimes written by religious scholars and officials.”218 Over the centuries, the
relationship between religion and international law has diverged, but the overarching
aims of international law have largely remained.
Some argue that the purpose of international law is futile, because war cannot be
prevented nor controlled. Carl von Clausewitz famously stated that introducing
moderation to war is an “absurdity.”219 Despite the kernel of truth to this claim,
international law has undoubtedly changed the way we think of and wage wars. The
codification of ideas such as proportionality and non-combatant immunity into
international law has inserted those concepts into the vernacular of war. Given these
shared ideas, the international community has expectations for the conduct of war to
which all nations are obliged to adhere.
218 Kennedy, 48. 219 Carl Von Clausewitz, On War, Edited and translated by Michael Howard and Peter Paret (Princeton: Princeton University Press, 1976), 76.
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From the large body of international treaties and agreements that exist, the term
“customary international law” has emerged to identify universally accepted international
law. The International Court of Justice defines customary law as “evidence of a general
practice accepted as law.”220 Certain provisions or principles originating from preceding
agreements can thus ascend to the status of customary international law—no longer
merely applying to the contracting nations of the original agreement. The introduction to
Adam Roberts’ and Richard Guelff’s Documents on the Laws of War, a definitive text in
the field, explains this process. “For example, the United States, while not a party to the
1977 Geneva Protocol I, has been prepared to view many of its provisions as reflecting
customary international law.”221 Key customary international law principles include
proportionality, discrimination, military necessity, and humanity.222 However, defining
customary international law remains imprecise, because these broad principles are not
uniformly shared nor applied.
With the exception of customary international law, the limited applicability of
international legal agreements represents a shortcoming in the ability to regulate armed
conflicts. The issue of applicability arises when contracting parties and non-contracting
parties to a legal agreement engage militarily. Because both are not parties to the same
agreement, the agreement often ceases to be relevant in the conflict. For instance, the
1899 Hague Conventions were signed by 26 nations, so any conflict amongst these 26
nations is subject to the provisions of these Conventions. However, per Article 2 of the
Convention with Respect to the Laws and Customs of War on Land, “These provisions
220 “Statute of the International Court of Justice,” International Court of Justice, http://www.icj-cij.org/en/statute. 221 Adam Roberts & Richard Guelff, Documents on the Laws of War, (Oxford University Press, 2000), 7. 222 Roberts & Guelff, 9-10.
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shall cease to be binding from the time when, in a war between Contracting Powers, a
non-Contracting Power joins one of the belligerents.”223 As the Oxford Reference website
notes, “The effect of this [general participation] clause was to significantly weaken the
effectiveness of the Hague Convention rules.”224 In the context of drone strikes,
applicability of international laws is an important consideration because non-state
terrorist organizations involved in the War on Terror are not parties to any international
legal agreements.
The lack of legal standing that terrorist organizations hold diminishes their legal
protections in war. Customary international law is considered applicable to all situations,
but protections articulated in specific agreements are often inapplicable to non-
contracting parties. As a result, the US has taken the position that terrorist groups such as
al-Qaeda do not merit the same protections as an adversarial state actor. The Bush
administration argued that their detention policy of prisoners of war (POWs) in the War
on Terror was thus exempt from the Geneva Convention’s POW protections. Bradley
commented that in relation to al-Qaeda, this argument was largely sound. “The Third
Geneva Convention for the most part applies only to conflicts with contracting parties,
and Al Qaeda is not a contracting party and does not itself observe the Convention.”225
Similar legal rationale has been used to permit a broadened scope of drone strikes. John
Brennan argued in a 2011 speech that the legal definition of imminence must be more
223 Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 29 July 1899. 224 “Overview: General Participation Clause,” Oxford Reference, http://www.oxfordreference.com/view/10.1093/oi/authority.20110803095847123. 225 Curtis A. Bradley, “The Bush Administration and International Law: Too Much Lawyering and too Little Diplomacy,” Duke Journal of Constitutional Law & Public Policy, Vol. 4:57 (2009): 57-75, https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1035&context=djclpp, 63.
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flexible when used in relation to non-state terrorist actors, “in part because threats posed
by non-state actors do not present themselves in the ways that evidenced imminence in
more traditional conflicts.”226 Unlike traditional adversaries, “al-Qaida does not follow a
traditional command structure, wear uniforms, carry its arms openly, or mass its troops at
the borders of the nations it attacks.”227 These differences are critical because the
disregard for international law displayed by terror groups accordingly permit more
flexible interpretations of international law by state actors like the US.
While international laws of armed conflict are influential, they remain woefully
insufficient in many regards. Political theorist Michael Walzer wrote that while “the
language with which we argue about war and justice is similar to the language of
international law,”228 international law has fallen short. “The lawyers have constructed a
paper world, which fails at crucial points to correspond to the world the rest of us still
live in.”229 Laws vulnerable to wide-ranging interpretations and lacking effective
enforcement mechanisms are destined to be manipulated. Roberts and Guelff wrote about
such shortcomings in international law. “Although the laws of war contain absolute
rules…most of the rules are not absolute and require a determination as to what may be
unreasonable, unnecessary or unproportional. Such determination may be genuinely
difficult to make or open to abuse.”230 In the abstract, international law is noble in its
objectives. In practice, its application is often inconsistent.
226 Jaffer, 165. 227 Jaffer, 165. 228 Michael Walzer, Just and Unjust Wars, Fourth ed. (New York: Basic Books, 2006), xx. 229 Walzer, xxi. 230 Roberts & Guelff, 6-7.
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Technology and Law
The continuously changing technology of war presents a fundamental challenge
that international laws must address. Laws are largely written in response to past issues,
and consequently, they are often unable to directly address issues stemming from later
technological advancements. Considering that the international legal agreements that
remain most influential today—such as the Geneva Conventions of 1949—were largely
written in the 20th century, drones are completely absent from these documents. This
requires that these documents be interpreted to understand their present-day applications.
The lag of law behind technology is not a new occurrence. Past technological
advancements such as submarines presented their own set of newfound legal challenges
in earlier historical moments.
World War I was the first major international conflict in which submarines were
weaponized. They were primarily used by the Germans—in many cases against merchant
or passenger ships. This was a violation of international law because such attacks did not
differentiate between combatant and non-combatant targets. To update international law,
agreements were reached after WWI specifying legal wartime usages of submarines. The
1936 London Procés-Verbal, signed by 50 nations and recognized as established
international law, stated that “submarines must conform to the rules of International Law
to which surface vessels are subject.”231 Essentially, despite the technological
advancement that submarines represented, they were regarded by international law no
differently than other vessels. Even though this new agreement was reached to explicitly
address submarines, they were integrated into the existing legal framework.
231 Roberts & Guelff, 171.
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Similar legal rationale can apply to drones. While drone technology is modern,
drones themselves are not too different in function from traditional airplanes. Law
professors Samuel Issacharoff and Richard Pildes write, “Drones present the same legal
issues as any other weapons system involving the delivery of lethal force. Advances in
military technology have often been about the ability to project force from a distance.”232
In this light, drones should be integrated into previous bodies of international law that
regulate warfare.
The 1923 Hague Rules of Aerial Warfare are a relevant document to examine for
their applicability to drones. Roberts and Guelff note that while these Hague rules were
never adopted as binding law, they remained authoritative.233 “The fact remains that,
unlike either land or sea warfare, there is no formally binding agreement which
exclusively address air warfare.”234 Nonetheless, these rules articulate the application of
broad customary international law principles specifically to aerial warfare. For instance,
discrimination in relation to the targets of bombing is heavily emphasized. “Aerial
bombardment is legitimate only when directed at a military objective, that is to say, an
object of which the destruction or injury would constitute a distinct military advantage to
the belligerent.”235 This rule written in 1923 remains applicable to drone strikes today.
Despite the absence of drones from international law, existing sources of law
nevertheless outline the conditions necessary for a strike to be justified.
232 Samuel Issacharoff and Richard Pildes, “World of Drones: The Global Proliferation of Drone Technology,” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 397. 233 Roberts & Guelff, 139. 234 Roberts & Guelff, 141. 235 Roberts & Guelff, 144.
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Law, Terrorism, and Drones
The War on Terror is a war on various groups of terrorists—individuals who do
not wear uniforms, but are instead characterized as a threat due to their previous acts of
violence, planned acts of violence, or allegiance to a group. This challenges the legal
concept of “distinction” that visibly differentiates combatants from non-combatants.
Conflicts have consequently become more reliant on intelligence in identifying enemy
terrorist combatants. Relating international law to present-day efforts against terrorism
brings to light this changing character of war. Because international law primarily applies
to contracting nations, it is designed to officiate conflicts between nation-states.
However, the post-WWII era has seen a shift away from wars between states towards
wars between state and non-state actors. This is exemplified in the War on Terror, which
has been waged against non-state actors such as Al-Qaeda and ISIL. These developments
raise multiple legal questions: What is the permitted geographic scope for such conflicts
involving transnational terror groups? How should nations humanely combat enemies
that blend in with civilian populations? These questions confront the difficulties produced
by modern-day wars, which are more diffuse in their scope and intermittent in their
intensity.
In response to the increasing number of conflicts involving non-state actors, the
1977 Geneva Protocols I & II were established to supplement the Geneva Protocols of
1949. These Protocols were notable because they acknowledged the rights of armed
decolonial movements, recognized certain legal rights of guerilla armies, addressed civil
wars and non-international conflicts, and expanded on the concept of discrimination in
attacks. In effect, they applied international law to conflicts that were not previously
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under the purview of international law. For example, these Protocols “include armed
conflicts in which peoples are fighting against colonial domination and alien occupation
and against racist régimes in the exercise of their right of self-determination.”236 Most
pertinent to drone strikes are the additional protections afforded to civilian populations in
Protocol I. The Protocol mandates, “The civilian population as such, as well as individual
civilians, shall not be the object of attack.”237 Furthermore, “Indiscriminate attacks are
prohibited.”238 This includes “an attack which may be expected to cause incidental loss of
civilian life, injury to civilians, damage to civilian objects, or a combination thereof,
which would be excessive in relation to the concrete and direct military advantage
anticipated.”239 The calculation of permissible civilian death in relation to potential
military advantage from a drone strike is a critical, yet imprecise, determination that these
Protocols require.
Any number of civilian casualties is a tragedy, but drones are well-positioned to
minimize civilian harm. Drone strikes are based on prior intelligence, carried out with a
specific target in mind, and executed by an individual who is removed from the
battlefield and thus less subject to making a reactive decision out of fear. Law professors
Samuel Issacharoff and Richard Pildes note, “we are now moving toward a world that
implicitly or explicitly requires the individuation of personal responsibility of specific
‘enemy’ persons before the use of military force is considered justified.”240 The
236 Roberts & Guelff, 423. 237 Roberts & Guelff, 448. 238 Roberts & Guelff, 448. 239 Roberts & Guelff, 449. 240 Samuel Issacharoff and Richard Pildes, “World of Drones: The Global Proliferation of Drone Technology,” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 388.
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deliberation prior to a drone strike lends itself well to such individuation. Such
individuation of responsibility also applies to the people authorizing drone strikes, as it
becomes much easier to pinpoint who determined that the use of lethal force was
necessary and why they made those decisions. Consequently, Issacharoff and Pildes
write, “Modern technological developments, which make terrorism more potentially
threatening, also enable dominant states to respond in more discriminating ways; the
capacity to do so is likely to generate pressure toward an obligation to do so.”241 These
changes bring the practices of war into closer alignment with international law.
While drone strikes can be conducted in accordance with international law,
determining whether all present-day drone strikes occur within legally-defined warzones
is a thornier question. The War on Terror has challenged existing conceptions of war due
to its lack of a defined geographic scope. It is not readily apparent if all US drone strikes
are part of the War on Terror, or if some strikes outside of active warzones are
independent operations. This distinction between warzones and all areas is critical,
because as a report by the Center for American Progress on drones states, “Outside war,
such killings are likely to be murder.”242 Killing is permitted—albeit regulated—in war,
so distinguishing between wartime and peacetime in a given location allows individuals
to understand whether the laws of armed conflict are applicable to them. This is relevant
in countries like Libya, Somalia, and Yemen, which have been targeted by strikes despite
being outside the War on Terror’s primary battlefields.
241 Issacharoff and Pildes, in Drone Wars: Transforming Conflict, Law, and Policy, 389. 242 Kate Martin, “Are U.S. Drone Strikes Legal?” Center for American Progress, April 1, 2016, https://www.americanprogress.org/issues/security/reports/2016/04/01/134494/are-u-s-drone-strikes-legal/.
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Related to the geographic boundaries of war are its temporal constraints. Legal
scholar Mary Dudziak’s Wartime discusses this aspect of war. In regard to the War on
Terror, she writes, “As September 11 recedes, the nation seems to have entered an
ambiguous era, one that is neither wartime nor peacetime.”243 There is no straightforward
answer to such ambiguity, but according to the 2001 Authorization for the Use of
Military Force (AUMF), the US is still in a wartime. While the War on Terror has been
forgotten by many in the US, legally, it remains ongoing. There is no discernible
endpoint to the War because its objective is to defeat an idea—terror—rather than a
group. This means that there is no foreseeable endpoint to drone strikes. The language of
the AUMF, which authorized the War on Terror, will be revisited later.
The War on Terror does not resemble previous wars in part because
counterterrorism efforts have traditionally resided in the realm of law enforcement. While
the Bush administration initiated the War on Terror using the rhetoric of a global war, the
Obama administration subsequently pulled back. In a 2013 speech, President Obama
explained, “We must define our effort not as a boundless ‘global war on terror,’ but
rather as a series of persistent, targeted efforts to dismantle specific networks of violent
extremists that threaten America.”244 Obama’s rhetoric implies a targeted approach aimed
towards specific groups of people, which mirrors the purpose of law enforcement. As
Obama explained in 2013, “our preference is always to detain, interrogate, and
prosecute.”245 While this preference to detain is not always feasible, this indicates that
243 Dudziak, 114-115 244 Barack Obama, “Remarks at National Defense University,” May 23, 2013, in The Drone Memos, Jameel Jaffer (New York: The New Press, 2016), 264. 245 Barack Obama, “Remarks at National Defense University,” May 23, 2013, in The Drone Memos, Jameel Jaffer (New York: The New Press, 2016), 266.
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most terrorists are identifiable individuals. A 2010 UN report explained the relatively
recent motivation to treat counterterrorism efforts as war. “Because the law of armed
conflict has fewer due process safeguards, States also see a benefit to avoiding
compliance with the more onerous requirements for capture, arrest, detention or
extradition of an alleged terrorist in another State.”246 The categorization of
counterterrorism efforts as war is arguably motivated by the permissible language of
international law. By pursuing terrorists using the means of war rather than law
enforcement, a wider range of force can be justified.
The amorphous character of terrorism and counterterrorism pose significant
challenges to the existing structure of international law. There is little question that drone
strikes in warzones are legal, assuming all relevant laws are followed in the determination
of targets. Heyns, the UN special rapporteur on extrajudicial killings, affirmed this view
in 2012. “Killings may be lawful in an armed conflict [such as Afghanistan] but many
targeted killings take place far from areas where it's recognised as being an armed
conflict.”247 The scope of drone strikes is thus the most pertinent and challenging legal
question, because “outside the context of armed conflict, the use of drones for targeted
killing is almost never likely to be legal,” as was explained by the 2010 UN Human
Rights Council report.248 There is a need to create a legal framework that simultaneously
addresses the transnational nature of terrorism, while protecting the sovereignty of
246 United Nations Human Rights Council, “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston,” A/HRC/14/24/Add.6, May 28, 2010, http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf, 16. 247 Owen Bowcott, “Drone strikes threaten 50 years of international law, says UN rapporteur,” The Guardian, June 21, 2012, https://www.theguardian.com/world/2012/jun/21/drone-strikes-international-law-un. 248 United Nations Human Rights Council, “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston,” 25.
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nation-states in which terrorists may reside. However, defining the context of armed
conflict is more difficult than ever before.
Domestic Legal Considerations
The Obama administration was not the first to utilize targeted drone strikes, but it
significantly expanded such strikes in terms of both frequency and scope. The Bush
administration carried out drone strikes, but nearly all these strikes occurred in Iraq,
Afghanistan, and northwest Pakistan.249 These strikes were thus largely in locations that
were considered “hot” warzones. Under the Obama administration, drone strikes are
known to have been carried out in Afghanistan, Iraq, Libya, Pakistan, Somalia, Syria, and
Yemen. The approximately 50 drone strikes overseen by the Bush administration are
dwarfed by the 506 under Obama’s administration.250 This dramatic expansion in scope
and frequency of drone strikes was enabled by the unconstrained legal language
authorizing the War on Terror.
The Authorization for the Use of Military Force (AUMF) issued in 2001 was
written to allow a swift and flexible response to the terror attacks of 9/11. Passed just
three days after the 9/11 attacks, the AUMF does not name specific terrorist groups.
Rather, it states, “The President is authorized to use all necessary and appropriate force
against those nations, organizations, or persons he determines planned, authorized,
249 William C. Banks, “Regulating Drones,” in Drone Wars, ed. Peter L. Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 131. 250 Micah Zenko, “Obama’s Embrace of Drone Strikes Will Be a Lasting Legacy,” The New York Times, January 12, 2016, https://www.nytimes.com/roomfordebate/2016/01/12/reflecting-on-obamas-presidency/obamas-embrace-of-drone-strikes-will-be-a-lasting-legacy.
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committed, or aided the terrorist attacks that occurred on September 11, 2001.”251 The
prevailing interpretation of the AUMF by presidential administrations has been that any
organization associated with Al-Qaeda is a legitimate target of the War on Terror. A 2011
Justice Department White Paper articulated this interpretation. “None of the three
branches of the U.S. Government has identified a strict geographical limit on the
permissible scope of the AUMF’s authorization.”252 Because Al-Qaeda and its affiliates
are transnational organizations, the AUMF has been interpreted to stretch to any place
those organizations exist.
The War on Terror has successfully weakened some terrorist strongholds, but this
has led terrorist organizations to surface in other countries. Authorizing drone strikes in
such countries outside the active warzones presents some legal hurdles. Obama addressed
this concern, stating, “In some of these places—such as parts of Somalia and Yemen—
the state only has the most tenuous reach into the territory. In other cases, the state lacks
the capacity or will to take action.”253 This is alludes to the responsibilities conferred to
neutral states in international law. Article 5 of Hague V from the 1907 Hague Convention
states, “A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to
occur on its territory.”254 The preceding Articles 2 through 4 prohibit the movement and
recruitment of belligerent troops within a neutral state as well as the installation of
military communication technologies within a neutral state. If states such as Somalia and
251 Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, September 18, 2001, https://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ40.pdf. 252 Justice Department White Paper, “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or an Associated Force,” in The Drone Memos, Jameel Jaffer (New York: The New Press, 2016), 172. 253 Barack Obama, “Remarks at National Defense University,” May 23, 2013, in The Drone Memos, 264. 254 “Rights and Duties of Neutral Powers and Persons in Case of War on Land (Hague V),” Chapter I, Article V, October 18, 1907, The Avalon Law Project, http://avalon.law.yale.edu/20th_century/hague05.asp.
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Yemen are failing to prevent terrorism within their borders, then the US can make the
case for intervention because these states are failing to maintain their neutrality in the
face of terror.
Receiving permission from a nation to carry out drone strikes within its borders is
another course that could be taken to justify strikes outside of traditional warzones. As
the previous chapter explained, many drone strikes carried out in Pakistan were done with
at least the tacit approval of the Pakistani government. A UN report explains, “The
proposition that a State may consent to the use of force on its territory by another State is
not legally controversial.”255 Of course, any such strike must be in accordance with all
relevant human rights law. Abdrabbuh Mansur Hadi, who was officially the President of
Yemen from 2012 through 2015, evidenced his embrace of drones in a 2012 speech at the
Woodrow Wilson Center. “[A]s far as the drones are concerned, they are—they are
linked to the satellites and they pinpoint the target, and they have zero margin of error, if
you know exactly what target you're aiming at.”256 Hadi went on to praise US assistance
in efforts that were successful in ridding al-Qaeda from regions of Yemen.257 While
Yemen has since descended into a disastrous civil war, these comments indicate that, at
least for a period of time, strikes within Yemen were likely carried with President Hadi’s
approval.
255 United Nations Human Rights Council, “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston,” A/HRC/14/24/Add.6, May 28, 2010, http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf, 12. 256 Abd Rabbo Mansur Hadi, “Transcript of Wilson Center Director’s Forum with His Excellency Abd Rabbo Mansur al-Hadi, President of Yemen” (speech, Washington, DC, September 28, 2012), Wilson Center, https://www.wilsoncenter.org/sites/default/files/yementranscript.pdf, 12. 257 Abd Rabbo Mansur Hadi, “Transcript of Wilson Center Director’s Forum with His Excellency Abd Rabbo Mansur al-Hadi, President of Yemen,” 12.
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There is also a need to examine the differences between US drone strikes
conducted by the Department of Defense and the CIA. Both agencies oversee strikes that
are similar in their objectives, but the Defense Department has primarily administered
strikes occurring in active warzones. The different charges of these two agencies has led
to different levels of transparency. An analysis of CIA drone policy identified the
inconsistent legal standards used between the two agencies. “In Afghanistan, the US
military lawyers ensure that the strikes conform to the laws of war. In Pakistan, whatever
review process the CIA uses remains largely opaque.”258 This touches on a larger issue,
which is the ability of CIA to carry out acts of war in a legal manner. A report by the
Center for American Progress noted, “The CIA, unlike the military, is not trained and
steeped in the requirements and doctrine of the LOAC (laws of armed conflict).”259 If all
US drone strikes across the Middle East and North Africa have in fact fallen under the
2001 AUMF, then all should be treated as military operations. Employing non-military
agencies to carry out strikes that are legally considered to be a part of war is tantamount
to a selective application of the laws of armed conflict.
Domestic laws also constrain the President’s authorities. In accordance with the
War Powers Act, the President must report to Congress at least every six months on the
status of hostilities. The 2013 Presidential Policy Guidance (PPG), which outlined the
Obama administration’s internal drone strike policies, codifies the necessity of this
Congressional notification. The policy mandates that “appropriate Members of the
258 Peter Bergen and Jennifer Rowland, “Decade of the Drone: Analyzing CIA Drone Attacks, Casualties, and Policy,” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 31. 259 Kate Martin, “Are U.S. Drone Strikes Legal?” Center for American Progress, April 1, 2016, https://www.americanprogress.org/issues/security/reports/2016/04/01/134494/are-u-s-drone-strikes-legal/.
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Congress will be provided, no less than every 3 months, updates on identified HVTs
[high-value terrorists] who have been approved for lethal action under Section 3.”260
Obama affirmed the communication his administration had with Congress, stating, “Not
only did Congress authorize the use of force, it is briefed on every strike that America
takes…That includes the one instance when we targeted an American citizen—Anwar
Awlaki.”261 Such consistent Congressional reporting allows drone strikes to adhere to
domestic law. Were Congress to demand specifics about the duration and scope of the
conflict, the executive branch would have to address such concerns.
The drone policies created and employed by the Obama administration were
executive policies—made both by and for the executive branch. The PPG issued in 2013
provided a comprehensive protocol for determining what individuals could be targeted
drone strike. The process outlined in the document is simultaneously deliberate and
Orwellian. A New York Times article remarked, “It is the strangest of bureaucratic rituals:
Every week or so, more than 100 members of the government’s sprawling national
security apparatus gather, by secure video teleconference, to pore over terrorist suspects’
biographies and recommend to the president who should be the next to die.”262 The
language of the PPG was clearly informed by international law. References are made to
force that is “as discriminating and precise as reasonably possible”263 and that “no other
reasonable alternatives to lethal action exist.”264 Furthermore, every operational plan
260 Presidential Policy Guidance, “Procedure for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities,” in The Drone Memos, 252. 261 Barack Obama, “Remarks at National Defense University,” May 23, 2013, in The Drone Memos, 268. 262 Becker and Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will.” 263 Presidential Policy Guidance, “Procedure for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities,” in The Drone Memos, 227. 264 Presidential Policy Guidance, “Procedure for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities,” in The Drone Memos, 230.
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must undergo a legal review beforehand.265 These procedures place the decision of who
to target and kill in the hands of lawyers and intelligence analysts. It is a major departure
from previous forms of warfare because the military itself plays a lesser role in decision-
making. Killing is no longer a spur-of-the-moment decision made in the battlefield, but a
civilized debate made around Washington, D.C. conference tables.
Regardless how ominous the drone kill list nomination procedures seem, they are
legal if properly followed. Counterterrorism expert William Banks opined that a “careful
assessment of US [drone] policy reveals a narrower approach that is legally justifiable
under national and international law.”266 While Banks’ analysis indicates that the PPG
presents no legal issues, the implementation of these guidelines has raised questions. One
aim outlined in the PPG is a preference for the capture of terrorist suspects over lethal
action.267 However, this stated objective has yet to translate into practice. Micah Zenko,
analyst for the Council on Foreign Relations, noted that between the fall of 2011 and
2016 there had been less than a dozen operations to capture terrorists.268 This stands in
sharp contrast to the hundreds of targeted drone strikes over this same timeframe. John
Bellinger, a former Bush administration national security legal adviser, noted that the
Obama administration has, “‘decided that instead of detaining members of al-Qaida they
are going to kill them.’”269 The reasons for this are twofold: capture operations are
inherently risky, and Obama refused to send more detainees to the Guantanamo detention
265 Presidential Policy Guidance, “Procedure for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities,” in The Drone Memos, 229. 266 William C. Banks, “Regulating Drones,” in Drone Wars, 132. 267 Presidential Policy Guidance, “Procedure for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities,” in The Drone Memos, 226. 268 Jaffer, 19 269 Jaffer, 19.
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facility. The PPG explicitly bars additional detainees being sent to Guantanamo—instead
mandating third-country custody options or prosecution in US civilian court or military
commission.270 The warped nature of this situation is that Obama’s intention of reducing
the population at the Guantanamo detention facility—purportedly because of its human
rights violations—led to more terror threats being killed instead of detained.
The Verdict on al-Awlaki
The case of al-Awlaki existed at the intersection of the laws of war and domestic
due process considerations. The Obama administration had to simultaneously argue that
targeting al-Awlaki and AQAP was covered under the 2001 AUMF, and that targeting a
citizen without a public trial was legal. At first, the administration provided little public
documentation explaining how they came to the decision to target and kill a citizen
overseas. In a contentious exchange with White House press secretary Jay Carney at a
2011 briefing, journalist Jake Tapper pressed the administration to bring forward the
evidence in al-Awlaki’s case. “Do you not see at all—does the administration not see at
all how a President asserting that he has the right to kill an American citizen without due
process, and that he’s not going to even explain why he thinks he has that right, is
troublesome to some people?”271 Even if the administration’s legal reasoning for the
strike was sound, shrouding in secrecy memorandums containing evidence against al-
Awlaki and the legal rationale for the strike prevented the public from knowing the
standards that were applied. Stating that a strike is legal while withholding all
270 Presidential Policy Guidance, “Procedure for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities,” in The Drone Memos, 240. 271 Jaffer, 25.
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documentation forces the public to blindly trust the government’s decision-making.
Details about the administration’s legal process eventually came forward, but it was not
until lawsuits from the ACLU and New York Times compelled documents to be released.
The justification for the strike against al-Awlaki is addressed in two
memorandums written by the Justice Department’s Office of Legal Counsel (OLC). The
first memorandum centers on the applicability of executive orders that ban assassinations
in regard to the al-Alwaki case. Specifically, the memorandum references Executive
Order 12333, which was signed into law by President Reagan in 1981. This Executive
Order provides structure and guidance for US intelligence activities. Notably, it
mandates, “No person employed by or acting on behalf of the United States Government
shall engage in, or conspire to engage in, assassination.”272 The OLC memorandum
rejected the applicability of this prohibition on assassinations. “The use of lethal force
against Aulaqi would not violate the assassination ban in Executive Order 12333 or any
applicable constitutional limitations due to Aulaqi’s United States citizenship.”273 The
evidence within the OLC memorandum that supports this conclusion is incomplete, as
more than half the text of the memorandum was redacted upon release. Nonetheless, the
memorandum argues that killings based on self-defense cannot be assassination,274 and
that individuals posing a continued and imminent threat may be targeted without
violation of the Fourth Amendment.275 The OLC referenced Tennessee v. Garner, which
272 Exec. Order. No. 12333, 46 FR 59941, 3 CFR, 1981 Comp., p. 200 (December 4, 1981), https://www.archives.gov/federal-register/codification/executive-order/12333.html#1.1. 273 Office of Legal Counsel Memorandum, “Lethal Operation Against Shaykh Anwar Aulaqi [rest of title redacted],” in The Drone Memos, 62. 274 Office of Legal Counsel Memorandum, “Lethal Operation Against Shaykh Anwar Aulaqi [rest of title redacted],” in The Drone Memos, 68. 275 Office of Legal Counsel Memorandum, “Lethal Operation Against Shaykh Anwar Aulaqi [rest of title redacted],” in The Drone Memos, 71.
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provides justification for police officers using deadly force against a suspect if “there is
probable cause to believe that he has committed a crime involving the infliction or
threatened infliction of serious physical harm.”276 Because of the imminent threat al-
Awlaki posed, any strike against him would be in self-defense, and could not constitute
an assassination.
The second OLC memo expands on the administration’s legal justification for
targeting al-Alwaki. It begins by drawing on the powers conferred by the AUMF to
highlight their relevancy to al-Alwaki’s activities. “[T]he AUMF applies with respect to
forces ‘associated with’ al-Qaida that are engaged in hostilities against the U.S. or its
coalition partners, and a decision-maker could reasonably conclude that the AQAP forces
of which al-Aulaqi is a leader are ‘associated with’ al Qaida forces for purposes of the
AUMF.”277 The memorandum also states that due to the continued and imminent threat
posed by al-Alwaki, and the fact that capture of him was infeasible, authorizing a strike
would not infringe upon his Fourth or Fifth Amendment rights.278 Holder delivered a
speech in 2012 that further expanded on due process considerations in this context. He
explained, “‘Due process’ and ‘judicial process’ are not one and the same, particularly
when it comes to national security. The Constitution guarantees due process, not judicial
process.”279 Holder subsequently listed the different conditions that must be met prior to a
276 Office of Legal Counsel Memorandum, “Lethal Operation Against Shaykh Anwar Aulaqi [rest of title redacted],” in The Drone Memos, 71. 277 Office of Legal Counsel Memorandum, “Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi,” in The Drone Memos, 88. 278 Office of Legal Counsel Memorandum, “Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi,” in The Drone Memos, 114-115. 279 Eric Holder, “Attorney General Eric Holder Speaks at Northwestern University School of Law” (speech, Chicago, IL, March 5, 2012), The United States Department of Justice, https://www.justice.gov/opa/speech/attorney-general-eric-holder-speaks-northwestern-university-school-law.
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targeted killing of a citizen, but failed to explain how the determination of whether a
citizen poses an imminent threat to the United States is made. With these decisions being
made behind closed doors, the possibility arises that different administrations could apply
completely different standards of evidence. This would run counter to the very principles
of due process protections.
The Effect of Law on Drones
The emphasis on legality in war serves as an attempt to integrate law and
humanity into the practices of war. In many cases, though, it distorts conversations about
war. As Walzer said, law becomes the vocabulary through which we talk about war.
Debates about the targeting of al-Alwaki inevitably morph into debates about due process
protections. While there is a need for such legal considerations, it is also important to
consider the strategic objectives of war, and how every strike brings the nation closer to
its objective.
National Security Policy Analyst Mohamed Elibiary, who wrote a Fox News
opinion piece opposing the US targeting of al-Awlaki in 2010, explained the danger
created by the US killing al-Awlaki. “In fact, Awlaki’s pronouncements seem to carry
greater authority today than when he was living, because America killed him. On Sept.
30, 2011, the day that Obama announced Awlaki’s death, many Islamic websites attached
the word ‘‘martyrdom’’ to this news.”280 If a drone strike leads to more radicalization
than it eliminates, then regardless of any legal analysis, it is strategically unwise. Obama
explained in 2013, “To say a military tactic is legal, or even effective, is not to say it is
280 Scott Shane, “The Lessons of Anwar al-Awlaki.” The New York Times Magazine, August 27, 2015, https://www.nytimes.com/2015/08/30/magazine/the-lessons-of-anwar-al-awlaki.html.
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wise or moral in every instance.”281 However, the sheer number of strikes dwarfs the
number of terrorist capture operations, indicating that drone strikes were the
counterterrorism tactic used in nearly every instance.
The highly legalistic language used in relation to drone strikes have served to
mystify the practice of drone strikes for many people. As the previous chapter
demonstrated, people in regions targeted largely fear drones. Many in the US have
limited knowledge of the capabilities and limitations of drones, and fewer still understand
the legal rationale that is the foundation for US strikes. War is a public matter, so it is
necessary for people to know the basis of war. As New York Times journalists Jo Becker
and Scott Shane write, “democracies do not make war on the basis of legal memos locked
in a D.O.J. safe.”282 The bureaucratization of war distances it from the rhetoric of
everyday people.
Legal language itself can serve as a justification, rather than constraint, in war.
Kennedy argues, “warfare has become a modern legal institution.”283 Broad
interpretations of imminence, self-defense, and necessity provide legitimacy for strikes
that otherwise would seem outside the scope of war. This does not mean that law has no
place in war. Rather, the issue stems from the concentration of power the Executive
branch of US government has in making judgments about drone strikes. The Executive
branch simultaneously interprets relevant laws, makes targeting decisions, and can
approve strikes. While Obama presumably saw this authority as opportunity for
deliberation and restraint, it sets a dangerous precedent for a matter as important as war.
281 Barack Obama, “Remarks at National Defense University,” May 23, 2013, in The Drone Memos, 266. 282 Becker and Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will.” 283 David Kennedy, Of War and Law, (Princeton: Princeton University Press, 2006), 5.
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Conclusion
The first US drone strike on October 7th, 2001, ultimately failed in its mission to
kill Taliban Supreme Commander Mullah Mohammed Omar.284 Inter-agency
miscommunication between the CIA, Air Force, and US Central Command (CENTCOM)
resulted in a Predator strike that hit an empty truck, allowing the targeted Taliban leaders
located in an adjacent building to escape.285 This early failure predated the extensive
drone policies and legal analyses that have subsequently informed their use. While these
policy and legal frameworks have standardized procedures and sought to integrate law
and deliberation into this means of warfare, this has also had the adverse effect of
normalizing drone strikes. As Jaffer phrased it in his 2016 book, “Eight years ago the
targeted-killing campaign required a legal and bureaucratic infrastructure, but now that
infrastructure will demand a targeted-killing campaign.”286 Such a bureaucratic
infrastructure makes drone strikes a seemingly permanent part of US national security.
The employment of drone technology in war has hastened changes in the
character of war. While the War on Terror was broadly defined from the start, drones
have enabled a diffuse scope of strikes that have further blurred distinctions between war
and peace. These changes in the way war is fought can largely be attributed to political
expediencies. As 9/11 faded into the past, the political willingness to send and keep
American troops abroad declined. Other issues—the economy, healthcare, and
immigration—became more important to the public. Nonetheless, most of the American
public never supported a total disengagement from the War on Terror. Consistently high
284 Woods, “The Story of America's Very First Drone Strike.” 285 Woods, “The Story of America's Very First Drone Strike.” 286 Jameel Jaffer, The Drone Memos (New York: The New Press, 2016), 8.
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public support for drone strike indicates that Americans have felt there is a continuing
need to combat terror. This ambivalence about war efforts has resulted in a simultaneous
de-escalation and continuation of the War on Terror. This has consequently motivated the
increasing reliance on drone strikes, and decreasing reliance on ground troops in
counterterrorism efforts.
Drone strikes occurring both within and outside of “active areas of hostilities”
evidence the nebulous boundaries of the War on Terror. Drones did not cause the War on
Terror to become broad in scope—the 2001 AUMF provided for that—but they did
provide a means of warfare that lent itself well to a widening warzone. However, it
remains unclear whether the occurrence of drone strikes in a given location alone
constitutes war, or if they merely represent “a series of persistent, targeted efforts to
dismantle specific networks of violent extremists that threaten America.”287 This debate
is important, because wartime and peacetime are governed by different sets of laws and
expectations. Legal scholar Mary Dudziak identified one cause of this contemporary
debate. “Before September 11, 2001, the words ‘terrorism’ and ‘war’ had not been
conflated. They were two categories, two problems that called for different responses.”288
Because terror can exist independent from any state or government, terror is not
geographically confined. On the other hand, war is traditionally fought against a state or
non-state actor that governs or resides in a specified territory. Drone strikes have been
authorized under the pretext of war as a legitimate military response to terrorism.
Operating under the laws of war allows for a more permissible use of force, but drone
287 Barack Obama, “Remarks at National Defense University,” May 23, 2013, in The Drone Memos, Jameel Jaffer (New York: The New Press, 2016), 264. 288 Mary Dudziak, Wartime: An Idea, Its History, Its Consequences (New York: Oxford University Press, 2012), 100.
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strikes occurring outside areas of active hostilities are problematic because they imply
that the mere presence of a terrorist in any locale justifies a drone strike. The geographic
applicability of the laws of war has accordingly been expanded to meet the demands of a
War on Terror that has targeted an increasing number of terror groups.
As Chapter 1 demonstrated, Just War Theory provides a lens through which many
people across the globe interpret and discuss war. Just war ideas represent an intellectual
middle ground—residing between pacifism and militarism—that justifies the occurrence
of war while regulating its practice. Just war ideas are so enduring because they are
rooted in religion and morality, and echoed by politicians from all along the ideological
spectrum. The interpretation and application of just war principles is often inconsistent
due to differences in people’s relation to a conflict. The legitimacy of war in the abstract,
however, is rarely questioned. This universality of Just War Theory is important when
analyzing any conflict, because it illuminates the rationale of each belligerent.
The War on Terror was initiated and justified by the US because of the attacks on
9/11. This just war argument based on self-defense is compelling, which explains the
high support amongst Americans and the international community for the War on Terror
at its inception. However, just war interpretation of the War on Terror is not exclusive to
Americans. Islamic Just War Theory has a rich history itself, and its ideas continue to
inform peoples throughout the Middle East and North Africa. Because Islamic Just War
Theory originally developed in the context of governance and conflict, ideas about self-
defense and territorial integrity were developed. In the War on Terror, many people in
targeted nations may view US jus ad bellum considerations as legitimate, while opposing
its jus in bello practices. This disconnect can be attributed to the fact that many people
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and nations affected by the War on Terror had no connection to the events of 9/11, and do
not view present-day counterterrorism measures in relation to 9/11. When drone strikes
kill civilians in Pakistan, for instance, it is understandable why Pakistanis
overwhelmingly oppose the strike. From their perspective, drone strikes may seem to be
an indiscriminate act of aggression by a foreign power. As explained in Chapter 3, terror
groups have used drone strikes to emphasize anti-American views in recruiting. Even
their messaging draws on just war concepts, as it implies that drone strikes are unjust and
thus merit retaliatory violence in the name of self-defense. This illuminates the central
shortcoming to Just War Theory: it allows any belligerent to justify their reasons for war.
There is no objective authority—though courts of international law may seek to fulfill
this function—to weigh whose claims to just war are warranted, and whose are not.
Interpretations of Just War Theory by different publics influence public opinion on war,
and thus motivates a range of political responses to war.
The changing character of war caused by drones and other modern technologies
present new just war challenges. Analyzing the jus ad bellum and jus in bello
implications of drones in war leads to differing conclusions. The relative isolation from
violence experienced by those operating drones lowers the human costs of war for those
individuals. This benefit of drones has the paradoxical potential to increase the frequency
and duration of wars. Furthermore, the specialized nature of armed drones means that
they are primarily operated by a small group of military professionals. This limits the
knowledge and practice of drone strikes to those military professionals, allowing the
majority in the nation conducting strikes to remain largely unaware. When people do not
know about war efforts carried out on their behalf, it evidences a divide between the
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government and citizenry. A state is a legitimate sovereign authority only if the citizenry
is informed, otherwise, war may not serve the public interest. On the other hand, the jus
in bello considerations of war do not preclude the use of drones because Just War Theory
permits violence given a just cause for war. While drones may alter the calculus around
when and why war should be fought, they do not change the violent nature of war. Any
weapon of war that can be used discriminately and proportionately is considered
justifiable.
President Obama incorporated the language of Just War Theory into his handling
of war. He pushed back against the Bush administration’s lofty rhetoric about the War on
Terror and its objectives, favoring a more limited and targeted approach. To ensure that
the war was managed in keeping with his principles, Obama himself chose to preside
over numerous drone strike decisions. This centralized decision-making around drone
strikes minimized Congressional involvement. Ironically, Obama criticized the Bush
administration in 2006 for this same reason. “When it came to questions of national
security in the post-9/11 era, for example, the [Bush] White House stood fast against any
suggestion that it was answerable to Congress or the courts.”289 Nevertheless, Obama
earned the infamous label of “judge, jury, and executioner” in regard to drone strikes.
Despite these criticisms, Obama’s use of drones accomplished its domestic political
goals. They enabled him to project toughness and hunt down terrorists, while expending
his political capital on domestic legislation. For a president who campaigned to end wars,
drone strikes presented the desired appearance that unnecessary conflict would be
avoided, though counterterrorism would not be neglected. Obama also sought to validate
289 Barack Obama, The Audacity of Hope: Thoughts on Reclaiming the American Dream (New York: Three Rivers Press, 2006), 77.
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the practice of targeted drone strikes by asserting their legality. Legality connotes
justness, so if Obama could argue that strikes were legal, he could then argue they were
just.
The laws of war, like Just War Theory, can serve as both justifications and
limitations. The objective of integrating morality and restraint into war via law is
tempered by the usage of law to justify war. The Office of Legal Counsel Memos in the
Anwar al-Awlaki evidenced this phenomenon. According to the Bureau of Investigative
Journalism, the first attempt to kill al-Awlaki via strike occurred on December 24th,
2009.290 However, the two legal memos that were produced to justify his targeting were
released in February and July of 2010,291 and it was not until September of 2011 when al-
Awlaki was finally killed by drone strike. This indicates that a drone strike targeting al-
Awlaki preceded the legal justification allowing the Obama administration to do so.
Rather than interpreting the law, it appears that a decision had previously been made, and
the legal interpretation by the Office of Legal Counsel would necessarily support this
foregone course of action. This relationship between law and war was explored in detail
by David Kennedy. He explained, “war has become, in Clausewitzian terms, the
continuation of law by other means.”292 International laws of armed conflict have become
influential and have benefitted humanity by codifying ideas of justice and restraint into
law. However, they have also had the adverse effect of normalizing some extent of lawful
violence.
290 Yemen: Reported US covert actions 2001-2011,” The Bureau of Investigative Journalism, https://www.thebureauinvestigates.com/drone-war/data/yemen-reported-us-covert-actions-2001-2011. 291 Jameel Jaffer, The Drone Memos (New York: The New Press, 2016), 61 and 73. 292 David Kennedy, Of War and Law, (Princeton: Princeton University Press, 2006), 47.
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While legality is an important consideration for waging a just war, strategic
considerations must also inform any military strategy. War seeks to accomplish some
objective, so all measures taken in war should contribute to the attainment of that
objective. Counterterrorism efforts obviously aim to prevent and eliminate terrorism.
Targeted drone strikes serve these efforts by attempting to kill specific individuals known
or presumed to be terrorists. Yet, there is evidence that drone strikes may undermine
counterterrorism efforts. The negative perception of drone strikes in targeted nations
contributes to anti-American sentiments. These sentiments damage the image of the US,
and hinder its ability to be trusted abroad. Diplomatic efforts can thus be hurt by strikes,
as two former US and Pakistani ambassadors have expressed.293 Furthermore, drone
strikes have isolated the US from the majority of member nations within the UN Human
Rights Council. While this itself is relatively inconsequential, it illustrates that the US
position on strikes is not widely supported. In a war on an ideology such as terror, the
realization of the objective requires both hard and soft power. Exclusively targeting
terrorists is insufficient, because this strategy does not delegitimize terrorist ideology nor
offer an alternative. Considering that strikes contribute to negative narratives about the
US, it is in the strategic interest of the US to weigh the broader consequences of a strike
in relation to the immediate benefit of potentially killing a member of a terror group.
Necessary Changes for a World of Drones
The noted shortcomings of US drone strikes demand discussion of potential
improvements and wholesale changes. These include tangible modifications in policy and
293 See Cameron Munter on pages 58 and 59, and Sherry Rehman on page 78.
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law, as well as conceptual changes about what constitutes a just war. Although the US
has been the primary nation to use drones militarily, other nations are rapidly developing
comparable, if not superior, technology of their own. It is probable that a nation
adversarial to the US will deploy drones in an armed conflict in the near-future. Strikes
are one obvious application of drones in conflict, but drones can be utilized in a variety of
ways. Intelligence-gathering, swarm drones, and hacking an enemy’s drones are all
potential means of war. The current drone policies and practices of the US should thus
not be viewed in isolation. While the future of drone warfare is yet to be realized, a
hegemonic power like the US has the unique ability to set precedents for other nations. If
a nation in the future were to begin regularly conducting strikes in countries that it is not
otherwise engaged in war, they could foreseeably justify their actions based on present-
day US practices. There is thus a strategic—not to mention moral—incentive to better
define the appropriate limits of drone use.
Policy changes can minimize civilian casualties, exclusively place drone strikes
within the military realm, and clarify the legal authorization for strikes. First, the practice
of “signature” drone strikes should be ended. Though signature strikes may be effective
in certain instances, there is no justification for targeting individuals who are not known
to be terrorists—especially when they reside outside of an area of active hostilities.
Secondly, drone strikes should be carried out exclusively by the Department of Defense
(DoD). As it currently stands, the DoD and Central Intelligence Agency (CIA) share
responsibility for drone strikes. However, the CIA is an inherently secretive organization
that is not charged with the task of fighting wars. As Bergen and Rothenberg note, “there
is no longer a marked separation between the military’s actions in clearly defined war
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zones and the CIA’s covert strikes in Pakistan, Yemen, and elsewhere.”294 This
organizational overlapping shows that the strikes conducted by each agency are similar in
purpose, and can thus be accomplished entirely by the military. Thirdly, the legal
foundation for drone strikes is still based on the 2001 AUMF that authorized force
against the people, organizations, and nations that planned or aided in the attacks of 9/11.
The use of drone strikes against the Taliban, al-Qaeda, al-Shabab, AQAP, ISIL, the
Haqqani Network, and al-Qaeda in the Islamic Maghreb evidences the variety of non-
state actors that have been targeted. While these are all categorized as terror groups,
arguing that the 2001 AUMF relates to all is inaccurate, and ignores critical differences
between these organizations. Terror is not a monolithic category, and the legal basis for
strikes should reflect this. The executive branch has wielded the authority conferred to it
in wartime by interpreting laws to support its actions, while Congress has played a
minimal role.
These specific changes must be complemented by advances in the understanding
of Just War Theory. Whereas war previously relied on visibly apparent distinctions
between belligerents and non-belligerents, and combatants and non-combatants, these
distinctions are disappearing as wars are decreasingly fought between uniformed troops
of nation-states. Instead, the technology and objectives of modern-day war allow for the
targeting of specific individuals irrespective of their location. Just War Theory’s system
of partitioning analysis of war into the discrete units of jus ad bellum, jus in bello, and jus
post bellum is accordingly becoming outdated. As Kennedy explained, “Thinking of
military options on a sliding scale, open to reimagination, provides a more nuanced
294 Peter Bergen and Daniel Rothenberg, “Introduction,” in Drone Wars: Transforming Conflict, Law, and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 1.
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strategic vocabulary for building and comparing options.”295 Such a sliding scale allows
for consideration of actions that represent varying degrees of war. This can encompass
everything from intelligence-gathering to targeted drone strikes to total war.
Rather than arguing whether war or drone strikes in general can be justified, the
onus should be shifted to arguing whether a given strike is justified provided the facts at
hand. Drone strikes can undoubtedly fall in accordance with jus in bello principles, but
this statement means little when analyzing a war waged against a variety of enemy actors
scattered across a region. The specific contextual factors surrounding a strike are of much
greater importance: Who is the individual targeted? What evidence suggests they pose a
threat? What is the certainty of their location? How many casualties are expected from a
strike? The technological ability to precisely target only known individuals compels the
responsibility to do so. This individualized understanding of Just War Theory mirrors
broader characteristics of the information age. War is increasingly data-driven,
technologically-reliant, and amorphous. Just War Theory must account for these factors
by increasingly scrutinizing the pre-strike intelligence and rationale that informs strikes.
Linking the Past to the Future
It was not inevitable that the US would arrive at this moment when drones figured
so prominently in counterterrorism. Drone strikes were never the only available
counterterrorism strategy, but rather, were intentionally preferred by US presidential
administrations in the post-9/11 era. As US domestic politics demonstrate, drone strikes
are a politically advantageous course of action. While President Obama could have
295 Kennedy, 158.
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pursued counterterrorism efforts by seeking to capture high-value terrorists and try them
in court, this strategy never materialized. Nonetheless, he kept this counterfactual course
of action alive in his rhetoric. As Obama explained in 2013, “our preference is always to
detain, interrogate, and prosecute.”296 This statement is objectively untrue, because the
hundreds of drone strikes occurring during the Obama administration dwarf the number
of capture operations—estimated to total less than a dozen.297 The narrative of a
constrained US drone program was presented, but this narrative was ultimately fictional.
The American public never had full knowledge of the scope of drone strikes. Gaps
between rhetoric and reality, the classified nature of national security, and a general
apathy on the part of the American public led to a drone program that was largely out of
the public view. Meanwhile, nations targeted by drones did not have the luxury of
ignoring strikes.
Technology is neither innately good nor bad—it is the application and usage of it
that determines its effect. Drones are paradoxical in that their most significant benefit is
also their biggest drawback. By removing drone operators from the battlefield, drones
lower the number of people at risk of physical harm in war. This is beneficial because, as
Walzer explains, “war is hell even when the rules are observed.”298 People want to be
distanced from war, and drone strikes allow at least one party to a conflict to be largely
spared from experiencing the hellish state of war. However, lessening the extent of war’s
horrors may increase the willingness to use war as a political tool. Realizing the benefits
296 Barack Obama, “Remarks at National Defense University,” May 23, 2013, in The Drone Memos, Jameel Jaffer (New York: The New Press, 2016), 266. 297 Micah Zenko, “Kill > Capture,” Foreign Policy, April 14, 2015, http://foreignpolicy.com/2015/04/14/kill-capture-obama-drone-pakistan-cia-policy-special-operations/. 298 Michael Walzer, Just and Unjust Wars, Fourth ed. (New York: Basic Books, 2006), 30.
120
while avoiding the pitfalls of drones is no straightforward task, especially when there are
significant inconsistencies between how they are understood domestically and
internationally.
Existing moral and legal frameworks can be applied in relation to drone strikes, as
this thesis has demonstrated. However, these frameworks fail to sufficiently resolve the
most vexing present-day challenges. Just War Theory can no longer rely on the
dichotomous distinction between war and peace, because such a distinction no longer
reflects reality. The framing and authorization of the War on Terror has been used to
justify a range of military actions in multiple nations. Viewing the jus in bello
considerations of these various wartime measures in relation to a singular jus ad bellum
cause ignores the evolving character of conflict. Drone strikes do not presently resemble
other means of warfare because they are a regular, bureaucratized, function of
government with no foreseeable stopping point. So long as this remains true, Just War
Theory and the laws of armed conflict must not only consider the proportionality and
discrimination of strikes, but also whether the geographic expansion and protraction of
war are justified. This demands consideration of the evidence against those individuals
targeted for strikes, and analysis of whether the evidence indicates a legitimate security
threat. This shift more closely resembles the criminal justice system in its emphasis on
evidence and individual responsibility. However, such a change is necessary because war
is becoming more personal. When a US president has the individual authority to
authorize a strike against a presumed terrorist—US citizen or non-citizen—anywhere in
the world, they also have the responsibility to explain and defend their reasoning for
doing so.
121
Such a shift in the way the legitimacy of war is debated is likely to demystify
drone strikes to the US and international publics. The drone policies that currently exist
are too legalistic—if not entirely classified—for most of the public to make sense of
them. The inaccessibility of these procedures allows people to fill in the blanks with their
own assumptions. While this may not be especially relevant within the US, where few
Americans closely scrutinize the use of drones, it is much more relevant internationally in
the places where drones constitute a consistent visual presence. Lessening the gap in
perception of drones between the domestic and international contexts can make
counterterrorism efforts more effective. Building international consensus on this issue
will additionally be important as states inevitably confront non-state actors employing
drones. Because of security reasons, market incentives, and globalization, drones are only
becoming more ubiquitous. Critical thought and consideration on how to conceptualize
and regulate drones in war is presently needed, because these issues will likely become
amplified with time if gone unaddressed.
122
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