Author: Kenneth Anderson

What Kind of Drones Arms Race Is Coming?

New York Times national security correspondent Scott Shane has an opinion piece in today’s Sunday Times predicting an “arms race” in military drones. The methodology essentially looks at the US as the leader, followed by Israel — countries that have built, deployed and used drones in both surveillance and as weapons platforms. It then looks at the list of other countries that are following fast in US footsteps to both build and deploy, as well as purchase or sell the technology — noting, correctly, that the list is a long one, starting with China. The predicament is put this way:

Eventually, the United States will face a military adversary or terrorist group armed with drones, military analysts say. But what the short-run hazard experts foresee is not an attack on the United States, which faces no enemies with significant combat drone capabilities, but the political and legal challenges posed when another country follows the American example. The Bush administration, and even more aggressively the Obama administration, embraced an extraordinary principle: that the United States can send this robotic weapon over borders to kill perceived enemies, even American citizens, who are viewed as a threat. “Is this the world we want to live in?” asks Micah Zenko, a fellow at the Council on Foreign Relations. “Because we’re creating it.”

By asserting that “we’re” creating it, this is a claim that there is an arms race among states over military drones, and that it is a consequence of the US creating the technology and deploying it — and then, beyond the technology, changing the normative legal and moral rules in the international community about using it across borders. In effect, the combination of those two, technological and normative, forces other countries in strategic competition with the US to follow suit. It sounds like it must be true. But is it? There are a number of reasons to doubt that moves by other countries are an arms race in the sense that the US “created” it or could have stopped it, or that something different would have happened had the US not pursued the technology or not used it in the ways it has against non-state terrorist actors. Here are a couple of quick reasons why I don’t find this thesis very persuasive, and what I think the real “arms race” surrounding drones will be.

“You win. You lose. Let’s have lunch.”

So concludes Philip Bobbitt, in an email comment to Ben Wittes, responding to his post on the question raised at Lawfare, here at OJ, and at Volokh, as well as in an opinion piece this morning by the New York Times public editor, Arthur Brisbane.  Philip is criticizing the policy, as I put it earlier, of conducting "foreign policy-by-leak."  I...

Memo to DOD: State Practice in NATO Conduct of Libya Operations?

Secretary of Defense Leon Panetta delivered a speech Friday at a NATO air base in Italy in which he praised NATO operations in Libya, reports the Wall Street Journal; Panetta delivered his remarks standing in front of a US surveillance drone.  I myself am relatively agnostic on the Libyan conflict as such.  However, something I should very much like to see...

Secret DOJ Memo on Awlaki Targeting, and NYT Public Editor on Policy-by-Leaks

I’m traveling and can’t stop to comment, but check out Charlie Savage’s New York Times story describing the secret DOJ memo, reportedly principally authored by David Barron and Marty Lederman, that provided the justification for putting Anwar Al-Awlaki on the targeting list in the first place.  Crucial reading on the targeted killing and drone debate. One thought, however. As Jack Goldsmith and...

More on Releasing the Awlaki OLC Opinion

Jack Goldsmith and Benjamin Wittes have been arguing for several days now at the Lawfare blog that the Obama administration should release either the Justice Department opinion approving the Al-Awlaki attack, suitably redacted, or some statement that puts out in some detail its legal reasoning.  The Washington Post has evidently read those posts closely, as it comes out today with a strong editorial endorsing the same thing.  I broadly agree with these arguments. I am equally concerned, however, with something that both Goldsmith and Wittes raised in their posts, viz., the increasing absurdity of a system of “covert” action in which, as the ACLU’s Benjamin Wizner put it in an amusing exchange with the White House counterterrorism adviser John Brennan at Harvard Law School a few weeks ago, they must be not be acknowledged though we can read about them in the newspaper.  The problem is that this eventually goes from amusingly absurd to de-legitimating.  It is amusing so long as the operations are successful — the Awlaki killing, the Bin Laden raid — and the (still illegal) leaks to the press are all about taking credit. It turns into something a lot less fun when something goes bad, as something inevitably will in operations of this kind, and these same extra-legal channels of wink-wink-nod-nod are used as parties try to deflect blame, put it on someone else, utilize press leaks to shift responsibility: this is not accountability, finally, it’s a natural but deeply flawed way of avoiding true accountability.  It involves informal mechanisms for taking credit when something good happens, and offloading it on someone else when something bad happens.  It’s a bad, but unfortunately tempting, idea when the news is good and when the news is bad.

Russia-China Double Veto on Syria Resolution

Russian and China issue a dramatic double veto of the US-backed measure directed against Syria; nine Council members voted in favor, and India, Brazil, South Africa, and Lebanon abstained.  Welcome to the New Post-Hegemonic World Order?  It's too soon to tell and our Data Set is insufficiently full.  Still, it does recall David Rieff's observation that a multipolar world is...

Cuts to USAID Budget

The one sure answer for any presidential candidate of any party, so it has seemed for several election cycles, when asked what to cut in the budget is ...

Domestic and International Legitimacy for Targeted Killing Using Drones

Jack Goldsmith, writing at Lawfare, urges the Obama administration to release a redacted version of the Justice Department’s memo concluding that the targeting of Al-Awlaki was lawful — if not a redacted version, then some reasonably complete and authoritative statement of its legal reasoning.  I agree.  The nature of these operations abroad is that they will almost certainly remain beyond judicial review and, as a consequence, OLC opinions will serve as the practical mechanism of the rule of law.

The best argument against disclosure is that it would reveal classified information or, relatedly, acknowledge a covert action.  This concern is often a legitimate bar to publishing secret executive branch legal opinions.  But the administration has (in unattributed statements) acknowledged and touted the U.S. role in the al-Aulaqi killing, and even President Obama said that the killing was in part “a tribute to our intelligence community.”  I understand the reasons the government needs to preserve official deniability for a covert action, but I think that a legal analysis of the U.S. ability to target and kill enemy combatants (including U.S. citizens) outside Afghanistan can be disclosed without revealing means or methods of intelligence-gathering or jeopardizing technical covertness.  The public legal explanation need not say anything about the means of fire (e.g. drones or something else), or particular countries, or which agencies of the U.S. government are involved, or the intelligence basis for the attacks.  (Whether the administration should release more information about the intelligence supporting al-Aulaqi’s operational role is a separate issue that raises separate classified information concerns.)   We know the government can provide a public legal analysis of this sort because presidential counterterrorism advisor John Brennan and State Department Legal Advisor Harold Koh have given such legal explanations in speeches, albeit in limited and conclusory terms.  These speeches show that there is no bar in principle to a public disclosure of a more robust legal analysis of targeted killings like al-Aulaqi’s.  So too do the administration’s many leaks of legal conclusions (and operational details) about the al-Aulaqi killing.

The public accountability and legitimacy of these vital national security operations is strengthened to the extent that the public is informed and, through the political branches, part of the debate on the law of targeted killing.  That cannot be operational discussion, for obvious reasons.  But there is still a good deal that could be said about the underlying legal rationales, without compromising security.   I myself favor revisions, either as internal executive branch policy or, in a better world, as formal legal revisions to Title 50 (CIA, covert action, etc.) and the oversight and reporting processes.  One of those revisions would be to get beyond the not just silly, but in some deeper way, de-legitimizing insistence that these operations cannot be acknowledged even as a program; I would establish a distinct category of “deniable” rather than “covert,” and a category of programs that can be acknowledged as existing even without comment on particular operations. John Bellinger, the former State Department Legal Adviser in the last years of the Bush administration, raises concerns in the Washington Post today about the best way to defend the international legitimacy of these operations.  He notes the deep hostility of the international advocacy groups, UN special raporteurs, numbers of foreign governments, and the studied silence of US allies (even as NATO, I’d add, has relied upon drones as an essential element of its Libyan air war).

[T]he U.S. legal position may not satisfy the rest of the world. No other government has said publicly that it agrees with the U.S. policy or legal rationale for drones. European allies, who vigorously criticized the Bush administration for asserting the unilateral right to use force against terrorists in countries outside Afghanistan, have neither supported nor criticized reported U.S. drone strikes in Pakistan, Yemen and Somalia. Instead, they have largely looked the other way, as they did with the killing of Osama bin Laden. Human rights advocates, on the other hand, while quiet for several years (perhaps to avoid criticizing the new administration), have grown increasingly uncomfortable with drone attacks. Last year, the U.N. rapporteur for summary executions and extrajudicial killings said that drone strikes may violate international humanitarian and human rights law and could constitute war crimes. U.S. human rights groups, which stirred up international opposition to Bush administration counterterrorism policies, have been quick to condemn the Awlaki killing. Even if Obama administration officials are satisfied that drone strikes comply with domestic and international law, they would still be wise to try to build a broader international consensus. The administration should provide more information about the strict limits it applies to targeting and about who has been targeted. One of the mistakes the Bush administration made in its first term was adopting novel counterterrorism policies without attempting to explain and secure international support for them.

The problem of international legitimacy is always tricky, as Bellinger knows better than anyone.  I look at it this way.  Tell the international community that we care about legitimacy — which is to say, that we care about their opinion in relation to our practices — and all of sudden we have handed other folks a rhetorical hold-up, to a greater or lesser degree.  Unsurprisingly, the price of their good opinion and their desire to exercise control over our actions goes up.  There is nothing special to this; it’s just standard bargaining theory.

International Law Weekend, October 20-22

Ruth Wedgwood sends this announcement along: International Law Weekend 2011 — the world-famous gathering of the migrating flock of international lawyers for the fall season — begins on Thursday night, October 20, 2011, at the Association of the Bar of the City of New York, 42 West 44th Street, NYC, and continues at 9 a.m. on Friday and Saturday, October 21–22, at Fordham Law School, at 140 West 62nd Street, NYC.

On-the-Ground Intelligence Operations Backing Drone Strikes

Eli Lake and John Barry at the Daily Beast sum up the Obama administration’s counterterrorism-on-offense doctrines.  Of particular interest is this paragraph stressing the largely unmentioned role of on-the-ground intelligence gathering and operations in order to make possible targeted strikes: And while the drones are the most outward signs of the covert campaigns that rage from the Horn of Africa to Pakistan, it...

Anwar Al-Aulaqi Killed in Drone Strike in Yemen

How should we think about targeting Al-Aulaqi?  Here's a quick take, trying to put the main questions in some logical order.  As the reader can see from other posts on this blog, many issues are contested, including what the proper legal questions are, so please understand that this is simply one way of looking at the issues - though I believe (without any special inside information) that it is more or less in line with the US government legal position. Who? As an international law matter, is Al-Aulaqi a lawful target? The US government sees him as taking part in hostilities, part of the operational leadership of an associated force with Al Qaeda, the AQAP.  So, yes, he can be targeted with lethal force — and targeted without warning, without an attempt to arrest or apprehend as a law enforcement matter.  (Although many in the international law academic and advocacy communities have essentially taken on the ICRC's full DPH views as expressed in its interpretive guidance, the US government has not; and although there seems to be a bit (as predicted by critics of the ICRC's issuing of the "interpretive guidance") of believing that if you repeat it often enough, you make it so, again that is not the US government's view.  State practice still matters.) Where?  Does it matter that he was in Yemen, and not an “active battlefield” in a conventional hostilities sense?The US government does not accept the idea that the armed conflict with Al Qaeda — or armed conflict generally — is confined as a legal matter to some notion of “theatres of conflict” or “active battlefields” or related terms that have been used in recent years by academics and activist groups as though these were terms with recognized legal meanings.  As I understand the US government position, it sticks by the traditional concept of “hostilities” as the legal touchstone, and that where the hostiles go, the possibility of armed conflict goes too (I try to explain this evolution of these views in this short essay).  So the fact that he was present in Yemen does not make him beyond targeting, because he is not present in some “active” battlezone such as Afghanistan. This claim — the conflict follows the participants — frequently leads to a complaint that this means the US might target him in Paris or London.  The US position is that the standard for addressing non-state actor terrorists taking safe haven somewhere depends on whether the sovereign where the terrorist is hiding is “unwilling or unable” to address the threat.  No, there won’t be Predators Over Paris; Yemen or Somalia is another matter, as President Obama has repeatedly and without cavil said in speeches over the last few years.  And indeed, as the President said in his statement yesterday on the raid - no safe havens anywhere. By whom can he be targeted?  The military or the CIA? US domestic law provides authority for the President to direct either the US military, or the CIA, or both acting together, to undertake the use of force abroad.  In this case, it appears from first reports that the operation was “directed” by the CIA — presumably on account of intelligence roles — and carried out operationally by the military.  As I have said on other occasions (and, heads-up, Robert Chesney is finishing an important new paper on this topic) I think there are important ways in which the legal authorities, oversight and reporting, and other activities associated with an intermingling of CIA and military special operations should be re-examined.  One in particular is some way of recognizing a category of “deniable” operations that are not truly covert. US citizenship?  What difference, if any, does being a US citizen make? The fact of US citizenship is the factor in this situation that has most excited the blogosphere.  Insofar as Al-Aulaqi was targeted for taking operational part in groups engaged in armed conflict with the United States, historically the fact of citizenship has been neither here nor there.  That’s the easy answer — essentially just asserting the existence of the armed conflict like any other — and as a legal basis for targeting, I think the US government is on solid ground if that’s its claim.  Al-Aulaqi has entered into operational roles with a group acting in armed conflict with the United States, and is targetable on that basis, and citizenship has historically been no bar to attack.  To reiterate what is said above: in order to reach the conclusion that he is targetable, the US government has been very careful to rely not upon “internet preacher shooting his mouth off,” but instead on distinct operational roles.