By Brett H. McGurk –
Killer mechanical robots the size of flies, giant predator drones piloted from an iPhone, together with a new mode of warfare embraced by the U.S. military and both political parties in Washington. That is the upshot of the recent symposium – “New Robotics and the Legality of Targeted Killings” – hosted by the Harvard National Security Journal. The technology is here to stay, and it is being deployed to kill designated enemies of the United States and its allies. What are the legal and ethical implications of this trend? And what rules govern killing by pilotless drones in some of the most remote regions of the world?
Surprisingly, we seem to have no idea.
As a former official overseeing national strategy in two warzones, I appreciate how law and ethics can take a back seat to new tactics that turn the tide against committed enemies. So long as the tactics are legally available, whatever the theory, then the tactics will be used. In Iraq, there have probably been more Predator drone strikes than anywhere else on earth – and with tremendous effect, degrading extremist networks and decapitating leadership cells. Drone attacks alone are not strategically sound, but when combined with a campaign to secure the population against common enemies, the strategic advantages are proven and empirical. The same strategy is now being employed in Afghanistan.
The Obama administration has, quite rightly in my view, also increased the targeting of al Qaida and Taliban leaders in the ungoverned tribal areas of northwestern Pakistan. Many of these areas at the moment are inaccessible to Pakistani security forces, but a longer-term campaign plan will see Pakistani forces deploying in force to secure its population. Until that can happen however, without sustained surveillance and drone strikes, we would accept a sanctuary for terrorist cells committed to killing U.S. forces in Afghanistan and threatening the stability of Pakistan (a country with 172 million people and nuclear weapons). Ten years ago we paid a price for leaving such a sanctuary unmolested, and no U.S. President is likely to take that risk again. So the drones are here, and they are here to stay.
But with increasing warfare there is an increasing need to explain what we are doing to the public – and how new tactics are grounded in the rule of law. The silence from the Obama administration in this regard is troubling and may prove to be a core weakness in an otherwise successful military program. Even if there is little chance that a legal challenge would shut down the drone campaign, the United States could easily lose the moral high ground, which the Obama team has worked so assiduously to retain.
Indeed, without a vigorous defense from the Obama administration, the vacuum is being filled by a new and respected chorus arguing that drone attacks are illegal and, perhaps, even tantamount to murder. Mary Ellen O’Connell, a law professor at Notre Dame, argues that drone strikes are “unlawful” under any purported theory of international law (she knocks down all of them). Philip Alston, the United Nations’ Special Rapporteur on Extrajudicial Executions, concluded that drone attacks in the Pakistan region “may well violate international humanitarian law and international human rights law.” The Chief Prosecutor of the International Criminal Court, Luis Mereno Ocampo, has asserted jurisdiction over all NATO and U.S. forces in Afghanistan and said the court is conducting a “preliminary investigation” of alleged war crimes committed in that theater. “Whatever the gravest war crimes are that have been committed,” he told the Wall Street Journal, “we have to check.”
The Obama team needs to get ahead of this legal train. In warfare, nothing always goes right, and it is inevitable that a drone strike will at some point go badly awry. Our enemies might adapt and surround themselves with children, or live in schools, using human shields to invite public scrutiny in the event of their demise. And while drones with GPS or laser-guided munitions are among the most precise weapons in the history of warfare, targeting errors and loss of innocent life are certain. The United States should make its case now, therefore, to justify the drone program according to international legal standards.
That framework might be humanitarian law or it might be classic self defense, as proposed by my symposium colleague, Kenneth Anderson. But whatever the theory, what is most important is that it is articulated, well reasoned, known to the public, and vehemently defended by administration lawyers and policymakers. Saying nothing has allowed those opposed to one of our most successful military programs define the narrative – and could leave its operators high and dry when things go wrong.
There is yet another reason to define clear standards for the drone program: “In warfare, what comes around – goes around.” Tad Oelstrom emphasized that simple maxim during the symposium, a point driven home by MIT’s Mary Cummings, who showed with alarming detail how easily drone technology is patterned and even piloted with an iPhone. “Yes,” she said, “there is an app for that.” We need rules for this untraveled road now – with sober reflection and foresight – rather than in the near future, and in reaction to unforeseen events, such as drone technology in the hands of terrorists with an Xbox.
The United States is certainly the dominant player in this field at the moment, but that will change as the technology is patterned and becomes more broadly available. Policymakers in Washington would be well served, therefore, to do everything they can to retain the technological and legal edge by establishing the norms and standards of drone warfare before it is established by the Ivory Tower – or worse – our adversaries.
Brett H. McGurk is an International Affairs Fellow at the Council on Foreign relations. He served as Special Assistant to the President and Senior Director for Iraq and Afghanistan during the George W. Bush Administration and as a special advisor to the National Security Council under President Obama.
Image courtesy of the AP via the Huffington Post
 Quoted in Shane Harris, Are Drone Strikes Murder?, National Journal 14 (January 9, 2010).