The Obama administration has taken great pains to defend recent U.S. drone attacks on targets outside conflict zones, namely in Pakistan and Yemen. But by “trying to please everyone at once instead of holding firm to basic, time-tested principles,” writes Charles G. Kels, an attorney with the Department of Homeland Security and a major in the Air Force Reserve, the administration has pleased no one. In fact, Kels says, it risks undermining its own legal authority and setting poor legal precedents for drones’ use in the future.
Kels further asserts that the administration is trying to reconcile two fundamentally different rationales for military action. It has pursued the fight against Al Qaeda and its associates as a war and obeyed the requisite national and international laws on war. Article 51 of the UN Charter protects the right to self-defense and permits attacks on “nonstate actors” in countries that aren’t directly involved in the conflict if they are “unwilling or unable” to act. But the administration also wants to satisfy those who, speaking through humanitarian organizations such as the International Red Cross, reject the argument that the conflict with Al Qaeda qualifies as a war and insist that the United States must abide by human rights law. In effect, Kels writes, doing so would require the United States to act like a police officer rather than a warrior, reacting to attacks against it on a case-by-case basis.
The Obama administration has said, for instance, that it exhaustively vets drone targets to ensure that each attack is legitimately made in self-defense. But the existence of such a process suggests that the United States is meting out justice, not pursuing a war. The administration should be clear that its bureaucratic checks and balances are strictly voluntary; otherwise, it could risk establishing a precedent for elaborate vetting procedures.
In another ungainly step, Attorney General Eric Holder stated in March 2012 that deliberations such as those that preceded the fatal September 2011 drone attack on Anwar al-Awlaki, an American working with Al Qaeda, satisfied the due process obligation of the Fifth Amendment. But in wartime, what matters is the threat an individual poses, not his nationality, Kels says. During World War II, “an American national at Omaha Beach wearing a Nazi uniform and firing at our troops would have been just as valid a target as the German national beside him.”
The administration should also stop vowing that its efforts produce “zero casualties” among civilians and that it only uses lethal force when the capture of a target is not an option, Kels argues. The international law of armed conflict recognizes that civilian casualties can’t always be avoided. It does not state that an enemy can be killed only if he can’t be captured.
Having a clear policy on drone use is not only a matter of good statesmanship, but an issue of national security, Kels argues. By forgoing the opportunity to lay out a clear policy now, he says, the United States could be stripping itself of the freedom to defend itself in the future.
THE SOURCE: “Mixed Messages on Targeted Killings” by Charles G. Kels. Armed Forces Journal, July–Aug. 2012
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