A Secret and Unaccountable Program of Targeted Killings
Over the past decade, the American drone program has developed into one of the most powerful weapons in the United States’ arsenal. An unmanned aerial vehicle (UAV)—otherwise referred to as a “drone”—is able to execute missile strikes from high altitude with no risk to American personnel and no need to engage in a costly ground-based operation. Nobody argues that drones are not fearsome and efficient weapons, but there is a highly charged debate over the legality and morality of the American drone program.
Exact casualty counts from drone strikes are not known (or, if they exist, made public). Investigations by non-governmental organizations and independent entities like The Bureau of Investigative Journalism conclude that, since 2004, between 2,500 and 3,400 people were killed by drone strike in Pakistan. The U.S. government claims that these numbers are much lower, and that the drone program has resulted in virtually no civilian casualties.
In addition to these assaults in Pakistan, there have been similar strikes in other nations in the Middle East. In Yemen, drone strikes were used on two occasions to kill American citizens: Anwar Al-Awlaki, the first American citizen ever to be assassinated by the U.S. government, and his 16-year old son, Abdulrahman Al-Awlaki.
When assessing the legality of the American drone program, one of the most controversial aspects is its secrecy. It was only recently that President Obama publicly acknowledged the practice of drone-based targeted assassination, but he has since failed to provide a legal justification for that program. Any attempts to demand justifications for the drone program have been met with the blockade of “national security concerns,” and then rejected.
In a recent legal case, New York Times reporters and the ACLU joined forces to demand the targeted killing program’s legal justification, but were rebuffed in federal court. In her ruling, Judge McMahon said:
“I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.”
As Judge McMahon describes, the government is currently doing things that appear to be unconstitutional—like killing an American citizen without due process of law. Yet, Judge McMahon can see no way for the court system to remedy this situation, and there is little hope that the executive branch will voluntarily accede its own power.
If the U.S. government is able to claim something as constitutional because of its secret interpretation of a document, and rebuff any attempt for outsiders (e.g., journalists, lawyers, the public) to contest that interpretation, is there no limit to the government’s power? Can the government decide that the constitution allows them to torture Americans? Can the government decide that due process protections do not apply, and then hold domestic defendants without trial indefinitely? Unless these questions are answered, there is no way to know which rights Americans can rely on, and which rights can be rescinded on the whim of the federal government through a secret decision process and interpretation of the law.
Without the constraint of enforceable international law, there may be too few barriers in place to stop other nations from exploiting the same loopholes that the U.S. has.
While the legal basis for the use of unmanned drones may remain a secret, this is not likely to have an impact on their proliferation, either at home or abroad. Drone sales on the international market are growing. According to the U.S. Government Accountability Office, “at least 76 countries” purchased or built UAVs. Among the 76 countries with UAVs are China, Russia, Israel and India, some of which have non-weaponized drone technology as well as those which have “killer” drones (and a few which have purchased both).
Even Pakistan, whose North Waziristan region has been ground zero for the Great American Drone War, has acquired drone technology. Days after former Prime Minister Yousuf Raza Gilani asked the U.S. to share more of its own technology in 2009, the government of Pakistan signed an agreement with an Italian manufacturer SELEX Galileo to produce drones based off the company’s Falco UAV design. Pakistan only manufactures surveillance drones at the moment, but has plans to build armed drones to carry out military operations within the country.
In addition to their use as a tool in extrajudicial assassination, drones are quickly becoming a hot-ticket item for government agencies that want to conduct surveillance. U.S. Customs and Border Protection currently operates nine drones, using them for border and drug trafficking surveillance; Homeland Security has used them to support FEMA during disaster relief operations; and the Seattle Police Department recently caused a stir when the Mayor and City Council found out that they were operating a pair of surveillance drones.
Support for laissez-faire regulation of this new industry is likely to find a home in the new Congress. Changes between the 112th and 113th sessions haven’t done much to alter the makeup of the House Unmanned Systems Caucus, a bipartisan group of Representatives that collectively received over $8 million in campaign donations from drone manufacturers during the 2012 elections. In early 2012, the “drone caucus” was instrumental in shaping the Federal Aviation Administration Authorization Act (FAAAA), a law passed annually to approve funding for the FAA. This year’s FAAAA contained a special section addressing unmanned aerial vehicles, and specifically requests that both representatives of the aviation and drone industries have a say in crafting how drones are deployed within the country.
This kind of private-public partnership strengthens as the use of drones for surveillance and war around the world increases, and will surely have a strong influence over which countries will have access to this technology, and will set the terms for how it is used. A September study released by NYU and Stanford pointed out the dangers in allowing drone use to spread without a legal framework for their sale and use.
When it comes to them being as a tool of war, researchers ominously noted that:
“US practices may also facilitate recourse to lethal force around the globe by establishing dangerous precedents for other governments. As drone manufacturers and officials successfully reduce export control barriers, and as more countries develop lethal drone technologies, these risks increase.”
Three months into the Afghanistan War, Ali Qaed Sinan al-Harithi and five others (including a U.S. citizen) became the first six fatalities of the U.S. drone program. Not in Afghanistan, however, but in Yemen. In 2001, the U.S. justified the strikes similarly to how Israel, during the First Intifada, justified its own “targeted killing” program. The U.S. said that because Harithi could not possibly be arrested, and was alleged to be a member of al-Qaeda, it was legal to kill him because the U.S. was “at war” with terrorism and this conflict justified ignoring the sovereignty of another state.
Without the constraint of an enforceable international law, there may be too few barriers in place to stop other nations from exploiting the same loopholes that the U.S. has to kill members of groups they deem ‘terrorists’—say, Mexican drug cartels or the Free Syrian Army—but their own citizens, as well. Seen in this light, the assassinations of Harithi, Awlaki, and thousands of others are not mere casualties of short-term war; they are the first dead in new breed of globalized warfare, bound only by feasibility and the size of one’s defense budget.