Featured — March 6, 2010 at 4:56 pm

NSJ Analysis: Turning Off Autopilot: Towards a Sustainable Drone Policy

As the intensity of the unacknowledged U.S. drone campaign against al-Qaeda and Taliban operatives in Pakistan has continued to increase throughout 2009 and into 2010, questions about the drone program have grown louder.  To preserve the legitimacy and effectiveness of drones as an instrument of U.S. security policy, it is essential that government officials carefully evaluate and address the legal, moral, practical, and strategic concerns of critics.

Concerns about the use of Unmanned Aerial Vehicles (UAVs) or drones to conduct targeted killings falls into two related categories: moral and legal questions concerning the legitimacy of drone operations and practical considerations regarding their strategic effectiveness.

Moral and Legal Considerations

Perhaps the most intractable legal question concerning drone strikes is what type of law should apply to them.  Proponents of targeted killings invoke the right of self-defense against armed attack and turn to the laws of war to justify drone attacks.  Humanitarians and others counter that because many drone attacks are occurring in countries with which the U.S. is not at war (e.g. Pakistan and Yemen), peacetime humanitarian law applies.

In fact, it would be imprudent to suggest that one regime would always apply to the exclusion of the other.  In practice, strikes must be evaluated on an individual basis under a regime that reflects the nature of the target being pursued and the theater in which the strike occurs.  Strikes against terrorists and insurgents on the periphery of a war zone will inevitably be held to a different standard than strikes against other actors in other parts of the world.  The search for a single over-arching legal regime to govern the use of drones may be inhibited by the diversity of theaters and uses to which drones have been applied.

Regardless of the legal regime applied, at least four considerations are central to determining the morality and legality of the drone campaign:  proportionality, discrimination, the agent carrying out the strikes, and the process used to make targeting decisions.

Proportionality

The proportionality of drone strikes must be viewed relative to the threat that they are designed to counter.  Ostensibly, the U.S. Government is attacking al-Qaeda operatives intent on unleashing catastrophic terrorist attacks against the United States and Taliban insurgents determined to kill agents of the Afghan, Pakistani, American and other NATO governments.  When considered relative to the available policy alternatives, few analysts dispute the proportionality of drone strikes.

Discrimination/Distinction

Instead, opponents of drone strikes focus their critiques on alleged shortcomings in the capacity of the drone campaign to discriminate between combatants and non-combatants.  The drone campaign is estimated to have killed over 1200 people since 2004.  The morality and legality of the drone strike policy hinges on the veracity of conflicting estimates regarding the civilian casualty rate.

The drone campaign is indisputably effective at killing al-Qaeda and Taliban leaders.  The Long War Journal reports that from January 2008-January 2010, drone strikes killed at least 15 high-value al-Qaeda targets, 1 high-value Taliban leader, and 16 mid-level al-Qaeda and Taliban leaders.

Peter Bergen and Katherine Tiedemann at the New America Foundation have released the most comprehensive analysis of the U.S. policy of UAV drone strikes against al-Qaeda and Taliban operatives in Pakistan to-date.  Bergen and Tiedemann estimate that approximately one out of every three fatalities caused by drone strikes is civilian.  Their estimate, like most other sources, is based on “reliable news media reports.”  In contrast, the Pakistani government has alleged a civilian fatality rate as high as 98% while other sources, like the Long War Journal, suggest figures as low as 10%.  Although it is clear that both combatants and non-combatants are being killed by drone strikes, the discriminatory effectiveness of the drone campaign remains difficult to assess.

Agent

Others have expressed concern regarding who is authorized to execute drone strikes.  Public reporting indicates that both the military services and the CIA are carrying out drone missions.  To the extent that a civilian agency is conducting lethal operations outside of a war zone in a highly public fashion and on an unprecedented scale, this raises important questions about the U.S. Government’s principles and procedures regarding the use of deadly force.

Process

It follows then that process should be another focus of concern.  How are targets selected?    Under what circumstances can strikes be carried out?  Who can be targeted?  This last question has been asked with increased urgency since Director of National Intelligence, Dennis Blair, acknowledged in Congressional Testimony that even U.S. citizens abroad could be targeted for killing under certain circumstances.  For obvious reasons, the processes that drive the drone campaign remain entirely confidential.

Practical Considerations

Beyond, but not separate from, the moral and legal dimensions of the drone campaign, it is important to assess the strategic effectiveness of the drone campaign.  Here also, there is significant disagreement.  The diversity of perspectives in this area is best reflected in the contrast between the enthusiastic views of the U.S. Government, the cautioned analysis of Peter Bergen and Katherine Tiedemann, and the categorical opposition of counterinsurgency experts David Kilcullen and Andrew Exum to the drone campaign in Pakistan.

The U.S. Government is convinced that the drone campaign is strategically productive.  The pace of drone strikes continues to increase.  A total of 58 strikes were launched in Pakistan in 2009 and 18 have been launched this year thru Feb. 24th.  Tactically, the U.S. Government has clearly assessed that drone strikes are effective at disrupting al-Qaeda and Taliban operations.

However, Bergen and Tiedemann dispute this assessment with a number of observations:

  • al-Qaeda continues to train Western recruits in Pakistani camps
  • Taliban operations in Afghanistan and Pakistan continue
  • Drone strikes have lost the element of surprise
  • The United States loses valuable intelligence by killing rather than capturing terrorist and insurgent leaders

Bergen and Tiedemann and prominent terrorism scholars including Bruce Hoffman caution that the drone campaign may be a tactical success belying a broader strategic failure.

David Kilcullen and Andrew Exum made precisely this claim in an op-ed some months ago.  They argued that the U.S. preoccupation with killing terrorist leaders both distracts from and undercuts what should be the core American mission in Pakistan — reducing Taliban and al-Qaeda success at intimidating the Pakistani populace into submission.

A Brave New World

Most analysts believe that drone strikes will continue unabated in the near-term.  As Bergen and Tiedemann note, it seems that the drone strike policy is “the least bad” option available to policymakers in a very difficult circumstance.

Finally, it is not too early for the United States to begin thinking about what it should be doing today to deal with the eventuality that other states and even non-state actors will employ drones against U.S. interests.  Should the United States seek to establish norms of use and non-use as it did with nuclear weapons, pursue a policy of counter-proliferation as it did after the advent of the cruise missile, or resign itself to the design of tactical counter-measures to address the inevitability of enemy drones?  These important questions should be considered alongside the more immediate moral, legal, and practical considerations discussed in this article.

Image courtesy of Wired.com

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