A Couple of Other Good Reads on Drones and Targeted Killing

While I am thinking about drones – and, like Orin, stalling on my exam grading – let me add two drone and targeted killing links.

The first is a Wall Street Journal news article by Adam Entous and Julian Barnes, on debates in Washington (and beyond) on whether (and if so what kinds and capabilities) drones should be sold to NATO allies (e.g. Italy or Turkey), and other allies and not-so allies (e.g., Gulf states).  It is an important article that, like others from the WSJ national security team, distills a lot of lengthy research and background investigation.

The article also raises a question I have sometimes addressed in blog posts – is the US triggering an arms race in drones?  As I’ve said repeatedly, drone technology has the following conceptual parts: flying, computer hardware and software, weapons (if weaponized), sensors, and the communications link.  Of these, flying is the easiest and triggers no arms race because over the next few years or decades, everyone will do it, with widespread application in civil aviation.  The weapons can be difficult to duplicate – if one cares especially about discrete applications of force, minimizing collateral damage, otherwise it’s not so hard to stick a missile on a drone. Sensors – in their ramifying complexity, different kinds of sensors, plus the computer and software integration – are the most difficult part of the drone; this might trigger a race to reverse engineer US technology, but it isn’t really an arms race; these sensors will be developed for many non-military purposes anyway.  The communications link is the weak link of a drone – it might be hijacked, broken, or otherwise attacked, and an arms race is likely to develop that crosses robotics with cyber in the development of defenses and counters to comm link weaknesses.

So I’d say that the US has an interest in maintaining its advantages while it can – but this will not revolve around “drones” in the flying machine sense, but instead other technological parts of drones.  There is room here for intelligent tinkering with export controls – but with respect to advanced sensors, software, and cyber-comm parts of the drone, and likely advanced weaponry, as well.  The real drones arms race, in a military sense, is much more likely to be over the question of protecting or attacking drones in the air – stealth technologies, communications link weaknesses, the stuff that makes them vulnerable or protects them from attack.

The second article appeared today in the Washington Post, by Karen DeYoung.  It features many very interesting interviews (the most interesting are unsourced and background; given the topic, one understands why).  It walks through the current state of the several drone warfare programs conducted by the US.  The article is particularly focused in the question of the secrecy of the drone programs, however, and the government’s refusal to acknowledge them under rules of covert programs.

I am quoted several times in the Washington Post article, mostly for the proposition that the Obama administration needs to be more forthcoming on the legal and policy basis that it sees undergirding these programs, in both international and domestic law.  The quotes are accurate and certainly reflect my view, but I would like to add some additional context.  I call for greater transparency, but do not think I mean it in the way that most of the advocacy and human rights activists mean it.

For many of the critics, in my view, the call for transparency might be genuine – but it is also a stalking horse for a much broader agenda to curtail targeted killing and drone warfare as the Obama administration has conducted it.  Since secrecy is a crucial element of success in such programs, calls for decreased secrecy might sound like – and indeed be sincerely meant – a call for increased transparency in order that outsiders can judge lawfulness.  But objectively speaking, intended or not, the result would be to increase the flow of information to the potential targets of the programs and their supporters.  I’m quite willing, and have said many times, that there is a balancing to be made here, and sensible observers have started by saying, tell us the legal justification, not the facts in particular cases.  As others have noted, it doesn’t really work that way as a process of legal reasoning – these determinations are highly fact specific, casuistical, and facts and law can’t be prised apart in this way.

But okay, there is surely more that can be said, even within a necessary balancing – a balancing, however, that belongs to the US government and its constitutional processes, and should be limited to political branch oversight, in my view.  Even with that, however, I see very little evidence that most of the advocacy groups would actually be happy with transparency as such.  The real objective is to curtail the programs, particularly as conducted by the CIA; it would be disingenuous to hide the ball on that objective.

Since I think the programs, including those conducted by the CIA, are the single greatest contribution of the Obama administration to national security policy – counterterrorism on offense – my reasons for calling for greater transparency are more limited and much more nuanced.  I have come round to agree with something Jack Goldsmith said over at Lawfare a couple of months ago, that as far as international law goes, there is not that much more to be said that hasn’t already been said.  This is not an international law account that depends fundamentally on some deep or textual parsing of cases of the International Court of Justice or other such documentary sources of international law.  It is premised on a much broader assertion of state practice evidencing certain long-held understandings of international law related to self-defense and a number of other things.

The demand for ever more extensive international law justification is mostly a way of saying that one disagrees with the basic approach to understanding international law at that point.  But then it is ships passing in the night, and there is not much point in going into the weeds because ultimately the US does not think the international law answers lie there. As far as US domestic law goes, the weeds – the work that Robert Chesney is doing on the interrelationships between Title 10 and Title 50 authorities, the military and the CIA, particularly – matter a great deal.  But that is not really anything that the advocacy groups care about as such.

That is so, even though I believe that at least some of the things that trouble the advocacy groups become much less of an issue insofar as there is a gradual merger of Title 10 and Title 50 special operations.  The military is never free to disregard the laws of war, and the intelligence community must adhere to Title 50 oversight processes which, one might think, points in the direction of the best of both worlds from an accountability process.  Or at least an accountability process that accepts that reporting will not be made to NGOs.

The domestic law matters to me for a different reason – viz., that, as I was quoted in the article as saying, we really are groping our way toward a new paradigm in the use of force, made possible by new technologies and the understanding that, going forward, we are going to be dealing with non-state actors with counterterrorism tools, not counterinsurgency.  I think we need some revamp of our Title 50 covert activities paradigm to deal with changing ways in which we project and use force, its oversight and accountability, and fundamental categories of acknowledgment.  In doing so, the US government should see the development of its domestic law authorities as providing long-run state practice for how these new, more discrete technologies should be used – state practice that just possibly might shape the very, very long run of international law in this area.

The idea that covert action has jus in bello rules applicable to it is, after all, a new development all its own, at least to judge by how states have traditionally understood the conduct of their state covert forces in the past (rules? what rules? that would require that there be a category of activities).  It is an important assertion of law that the category be understood to exist and to be governed by rules that limit when and where it can be undertaken (e.g., the “unwilling or unable” standard) and conduct rules (Harold Koh’s ASIL assertion that even self-defense outside of formal armed conflict must still adhere to the basic standards of necessity, distinction and proportionality).  These are important developments in state practice, and the US needs to find ways to communicate these as normative developments that undergird the legitimacy of its practices.  That is not, I think, quite what Human Rights Watch or the ACLU think the agenda of transparency leads to.

Finally, I expressed concern in the article’s quotes that the legitimacy of these covert activities was far too much based around the legitimacy of this particular administration – far too much a function of the Obama administration and the bona fides with which it entered office.  The reason I worry about this is simple.  Whether there is a new administration in 2012 or 2016, there will eventually be a new president of some party.  The Obama administration – correctly in my view – is committing the US to a strategic path of counterterrorism that depends in important ways on drone warfare and targeted killing; it is committing the US to this as a strategic, operational, indeed budgetary path for much longer than it can possibly be around.

I applaud this – make no mistake – but I also think for that very reason that the Obama administration has a special obligation to do everything possible to ensure that these tools are fully available to future presidents – and that means undergirding their legal and political legitimacy as much as the line item of drones in the budget. This is a serious legitimacy question, and one that DeYoung’s article spells out very well in its discussion of reaction to these policies among our allies (keeping silent on them, neither publicly criticizing nor endorsing, even after utterly depending on drones in Libya).

The advocacy groups, for their part, are merely clearing their throats with calls for transparency, threats of lawsuits on behalf of drone victims. Not to put too fine a point on it, in my estimation they are pre-positioning themselves for a possible Republican administration come 2012 when, suddenly, policies that required merely greater transparency and deferential discussion and all that when it was the Obama administration become accusations of war crimes once again.  The administration has an obligation to look down the years, ten years, twenty years, down the road, and protect the presidency in a policy that is substantively the right one – a signal contribution of this administration to the discrete and targeted protection of the United States.

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