The United States is fighting a remote control war with al Qaeda in Pakistan’s rugged tribal areas. CIA pilots, sitting at computer terminals in the United States, guide unmanned drones toward what they believe to be al Qaeda training camps or safe houses in an effort to kill leaders of the terrorist group with no risk to life or limb for U.S. personnel.
The Obama administration has substantially increased the use of these so-called “unmanned aerial vehicles” and claimed success in taking out high-level al Qaeda leaders and generally disrupting the group’s planning operations. Since the Bush administration began using the tactic, the death toll for civilians reaches into the hundreds, far higher than the dozens of terrorists killed.
The collateral damage raises significant questions about the use of the tactic in terms of international law. The law of war requires that attacks be limited to military objective and that civilians not be targeted. In addition, the principle of proportionality prohibits attacks likely to cause civilian deaths or injuries that would be excessive in relation to the direct military advantage anticipated.
Under President George W. Bush, international law was hardly a major concern. To its credit, the Obama administration has now taken the time to set forth its rationale for concluding that the United States is conducting this high-tech war in full compliance with the law of war as well as U.S. domestic law.
The administration’s defense came in a lengthy speech by Harold Koh, the State Department’s legal adviser, to the American Society of International Law during its annual meeting in Washington on March 25. Koh, the former dean of Yale Law School, came to the meeting as a longtime internationalist. He noted that he has been a member of the society since his days as a law student some 30 years ago.
Critics of drone warfare looking for a substantive defense, however, may well feel disappointed. Koh began his discussion of the use of drones by stressing the limits to how much he could say publicly. In the following 12 paragraphs, Koh added nothing by way of concrete information to the public record on the issue. Fittingly, the American Civil Liberties Union responded to the speech by citing its suit filed the week before under the Freedom of Information Act to pry out more details about the program — its costs as well as its benefits.
Koh batted away the view that targeting a particular enemy leader violates either international or domestic law. An enemy leader is a belligerent, Koh said, and a lawful target under the law of war. As precedent, he noted that during World War II, U.S. aviators tracked and shot down the plane carrying the Japanese naval leader Isoroku Yamamoto, the commander-in-chief of Japan’s attack on Pearl Harbor. As for domestic law, Koh contended that targeting an enemy leader does not violate the domestic ban on assassinations nor constitute an unlawful extrajudicial killing.
Koh also rejected what he said was the view of some critics that the very use of advanced weapons systems for lethal operations runs afoul of international law. There is no such prohibition, Koh said, as long as the high-tech weapons are employed in conformity with the applicable principles of the law of war. Indeed, he added, using such systems can actually help minimize civilian casualties. And he insisted that in the operations against al Qaeda, “great care is taken . . ., in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.”
The evidence, however, belies Koh’s assertions. In a detailed assessment published in The New Republic in June, two experts with the liberal-leaning New America Foundation — journalist Peter Bergen and policy analyst Katherine Tiedemann — concluded from media reports that at least 600 civilians had been killed in U.S. drone attacks in Pakistan since 2006. A Pakistani terrorism expert had arrived at a similar figure, they said. Among the examples they cited were the failed effort to kill the al Qaeda leader known as Abu Khabab in 2006 — which claimed at least 25 civilians — and the successful effort two years later. That attack killed two other militants but also three boys who happened to be in the strike zone.
Without addressing international law issues, Bergen and Tiedemann joined other critics in questioning the wisdom of the policy or its ultimate value. The drone program, they wrote, “is a tactic, not a strategy.” Whatever precautions the United States may take, civilian casualties are inevitable in a war conducted from the air and guided from afar. And the collateral damage from two-foot-long bombs falling amidst civilian populations includes a hardening of the anti-American sentiment already strong in Pakistan.
In his speech to the international law group, Koh said that his role is to provide sound judgment as well as legal advice, to speak up when a policy is “lawful but awful.” Many legal experts concur that the U.S. drone war complies with international law even as counterterrorism experts are questioning its value. The administration owes Congress and the public a more detailed accounting to show that the program satisfies both criteria.
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