By Frederick P. Hitz

Adjunct Professor, University of Virginia School of Law; Senior Lecturer, Frank Batten School of Leadership and Public Policy; Former Inspector General,  CIA, 1990-98.

            “Relentless NON-humanity.” This is the term I have used to describe the impact of the Predator Drone as a weapon in the Afghanistan/Pakistan (Af-Pak) region in the U.S.’s Global war on Terrorism (GWOT). It is not just that the Predator is an application of lethal force that, without warning, annihilates suspected terrorists and sometimes innocent bystanders. Rather, my concerns stem from the fact that controllers target and dispatch these deadly weapons remotely, often while thousands of miles from the battlefield. One of my law students expressed it succinctly a year ago when he described his experiences “driving the Predator” for the previous seven years. “Where did you do that, Jonathan?” I asked him, to which he quickly replied, “outside of Las Vegas, and sometimes when I got off duty, I wandered into town to play the slots.

            This is not Star Wars. This is the real thing. And, in my view, it is why drone warfare is increasingly, if mistakenly, compared by observers to the terrorist activity it seeks to suppress. Most scholars who sought to define terrorism unite on the basic principle that terrorism is hostile action designed to achieve a political goal by intimidating a civilian population, but not ultimately to defeat a state as Germany and Japan were defeated in World War II. It is to destroy the population’s morale, their will to resist, and to bring them into compliance with the wishes of the terrorist. What I am suggesting is that drone warfare has a similar goal. It is fighting fire with fire, terror with terror.

            Recognizing that the Government of Pakistan will never allow U.S. troops on Pakistani soil to pursue the Taliban in the disputed regions of the North-West frontier and Afghanistan, the U.S. has been able to strike the Taliban effectively with Predator drones guided from two continents away. In fact, the U.S. gained access to Pakistani airspace by helping the Government of Pakistan eliminate an Al Qaeda leader in the North-West frontier that the Pakistanis had spent years trying to chase down. The predator’s distinguishing characteristic is its ability to hover indefinitely over a given target area and when it catches sight of its target to strike instantly and without warning. Nobody is certain of the precise numbers of bystanders who have been killed in the drone attacks but because there is no warning of its presence, innocents are bound to have been included.  

            This was not in the mind of the Director of Central Intelligence (DCI) when he purchased six Predator drones from the General Atomic Corporation in 1997. DCI James Woolsey was buying a sophisticated surveillance device with a negligible radar profile, powered by a golf cart engine that could hover endlessly and silently over a remote target, sending precise images back to its control. Soon thereafter, the U.S. Military fitted the Predator with a Hellfire missile, turning it into a formidable killing machine!

               Its use in the Af-Pak region has been game changing. CIA officials have stated that the Predator has decimated the Al Qaeda command structure in both Afghanistan and Pakistan with a minimum of casualties on the U.S. side. This is a formidable achievement. But as desirable as it may be as a military goal, it recently became an issue in and of itself.  It is almost too effective a weapon. According to the international media, it has excited strong opposition among citizens and tribals in the entire Af-Pak region, ostensibly because of civilian casualties but really because of its effectiveness, what I call its “relentless non-humanity.”

                Is the Predator drone a “legal” weapon under the laws of war? U.S. Government lawyers defended its use under the President’s authority to use all military force at his disposal to pursue and kill the 9/11 attackers – the “Authorization to Use Military Force” (AUMF) of September, 2001. Until recently, the President’s primary international lawyer, adviser to the U.S. State Department, and former dean of Yale Law School, Harold Koh, prominently defended use of the Predator drone in the Af-Pak theater. Recently, however, he and others raised questions about usage of the Predator for “targeted killings” in the region. Mr. Koh and some of his colleagues are now on record demanding a more transparent process for authorizing drone strikes that target suspected Al Qaeda operatives and U.S. citizens.

                This came to a head several months ago when the United Press published a 10-12 page document obtained from U.S. Government files that sought to describe the process followed before American citizen, Anwar al-Awlaki, was targeted and assassinated in Yemen in 2011. The question is simply – does anyone in the U.S. Government have the authority to target for assassination a U.S. citizen or enemy terrorist, and if so, by what process is the decision made? Is it the President alone? And if so, does this occur because of his Constitutional authority as Commander-in-Chief or because of the AUMF? Further, is this targeted assassination of Al Qaeda leaders, American citizens or otherwise, congruent with the laws of war generally, proportionate to the threat posed by Al Qaeda and suitably limited in purpose?  These are good questions that deserve some scrutiny.  For example, the state of Israel has been in the targeted killing business in its struggle with the Palestinians for many years and the Israeli Supreme Court has never okayed the practice. What that says is that even Israel in fighting for its life in a dangerous region has felt the necessity of embarking on a campaign of assassinations of suspected terrorists with or without the approval of its highest court. This is clearly a tough business.

               There are many unsettled questions, legal, political, and otherwise surrounding the use by the U.S. of the Predator drone in combat. But I keep coming back to the one issue that most captivates me as a lawyer, U.S. citizen, and teacher. In the case of the GWOT, by our continuing and conspicuous use of the Predator drone, the United States is fighting terror with terror.  We are confronting hostile acts of terror such as the 9/11 hijackings and deaths of over 3,000 people with warning-less Predator drone strikes on Al Qaeda’s suspected leaders and operatives – and, deservedly or not, we are giving rise to the identical reactions of outrage in Afghanistan, Pakistan, Yemen and elsewhere. Perhaps this is an inevitable result of the most effective method we can devise to counter Al Qaeda terrorism in the region, but it has complications and consequences. I believe it is the obligation of the U.S. to explain more fully our policy for using the Predator in the manner we have thus far in the War on Terror, the process we follow in target selection, and the safeguards in place against making mistakes. It may be that the United States will enjoy a dominant position indefinitely in the utilization of drone strikes for targeted killings, but while we are in the driver’s seat, to make a bad pun, we ought to be transparent in our reasoning. Otherwise, we may find that the “relentless non-humanity” of drone warfare makes our international actions to combat terrorism as repugnant as the acts of the terrorists themselves. We have an obligation to pursue zealously and effectively those who attacked the U.S. on 9/11, but as a leader of the world’s strongest democracy and a proponent of the rule of law, we must be conscious of the need to explain ourselves when we are as dependent as we have become on such an unanswerable, terrifying and heavy-handed weapon as the Predator drone.