Are strikes by unmanned aircraft ethical?

To follow is an excerpt from the CQ Researcher report on "Drone Warfare" by Thomas J. Billitteri, August 6, 2010.
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OVERVIEW
Mustafa Abu al-Yazid ranked high on the roster of global terrorists. He was jailed in connection with the 1981 assassination of Egyptian President Anwar Sadat, thought to have managed finances for the Sept. 11 attacks on the United States and, as the No. 3 official in Al Qaeda, was widely viewed as a prime conduit to Osama bin Laden. [Footnote 1]

Yazid's life apparently came to an end in May when a missile from a CIA drone aircraft hit him in the lawless tribal region of western Pakistan. Al Qaeda claimed Yazid's wife, three of his daughters, a granddaughter and other children and adults also died.

The attack on Yazid, also known as Sheikh Sa'id al-Masri, was part of a massive and controversial expansion in the use of “unmanned aerial vehicles,” often called UAVs or drones, for battlefield reconnaissance and targeted killing of suspected militants.[*]

The boom in drones has stirred a variety of concerns among critics, but the greatest has been over strikes carried out covertly by the CIA under a classified, but widely reported, program of strikes against suspected militants inside Pakistan. Critics say the intelligence agency's drone attacks violate the laws of war because they are executed by civilian agents and occur inside another nation's sovereign territory. Others, however, defend the strikes as lawful acts of war and national self-defense in the fight against the Taliban and Al Qaeda.[Footnote 2]

So far, the Obama administration has carried out at least 101 drone strikes in Pakistan, more than twice the 45 executed by the Bush administration from 2004 through 2008, according to the New America Foundation, a Washington think tank. [Footnote 3] Allegations of high civilian casualty rates have heightened the drone controversy. About a third of those killed by CIA strikes since 2004 were non-militants, foundation researchers concluded.

Meanwhile, some question the attacks' effectiveness at stemming Al Qaeda and the Taliban insurgency. The Reuters news agency found that the CIA had killed roughly a dozen times more low-level fighters than mid- to high-level leaders since the summer of 2008, when drone strikes in Pakistan intensified. [Footnote 4]

Critics also argue that drone strikes are fueling anti-American sentiment and spurring more terrorism. They point to Faisal Shahzad, the Pakistan immigrant living in Connecticut who tried to set off a car bomb in New York's Times Square in May. Shahzad, who pleaded guilty, suggested U.S. drone strikes in Pakistan and elsewhere helped motivate him. [Footnote 5]

But drone supporters argue that strikes are precise, limited in collateral damage compared to conventional bombing or artillery attacks and save the lives of U.S. soldiers.

On Aug. 3, the American Civil Liberties Union and the Center for Constitutional Rights filed a lawsuit with potentially broad implications in the debate over targeted killing. The suit contests a Treasury Department rule requiring lawyers to get a special license before they can provide legal services benefiting a U.S.-born radical Muslim cleric thought to be hiding in Yemen whom the Obama administration has reportedly placed on a kill list.

The New York Times said the suit could test “some of the most deeply contested disputes to arise in the conflict against Al Qaeda — including whether the entire world is a battlefield for legal purposes, or whether terrorism suspects who are found away from combat zones must, in the absence of an imminent threat, instead be treated as criminals and given trials.” [Footnote 6]

The growing use of unmanned warplanes is part of a much broader embrace of drone technology for both military and civilian uses — everything from environmental monitoring and U.S. border patrol to drug interdiction and post-disaster searches. But it is the expanding robotic technology for war that is stirring the greatest debate.

In recent years the U.S. military has spent billions of dollars to expand its fleet of unmanned planes, which has gone from 167 aircraft in 2002 to more than 7,000 now. Last year, the Air Force trained more pilots to fly unmanned planes than traditional fighter pilots. [Footnote 7]

Drone technology itself is astonishing in its capacity to reconnoiter and kill. In the case of the Predator and its even more powerful brother, the Reaper, controllers sit at computer consoles at U.S. bases thousands of miles from harm's way and control the aircraft via satellite communication. With the ability to remain aloft for long hours undetected on the ground — Predators can fly at altitudes of about 50,000 feet — the planes can do everything from snap high-resolution reconnaissance photos of insurgents' vehicles to shoot Hellfire missiles at them.

A secret archive of classified military documents controversially released in July by the group WikiLeaks revealed the lethal power of the Predator. As reported by The New York Times, in early winter 2008 a Predator spotted a group of insurgents suspected of planting roadside bombs near an American military outpost in Afghanistan. “Within minutes after identifying the militants, the Predator unleashed a Hellfire missile, all but evaporating one of the figures digging in the dark,” The Times said. “When ground troops reached the crater caused by the missile, costing $60,000, all that was left was a shovel and a crowbar.” [Footnote 8]

The Times noted that the U.S. Air Force flies some 20 Predator and Reaper aircraft a day in Afghanistan, almost twice as many as it did a year ago, and that allies such as Britain and Germany have their own fleets. The leaked incident reports, the newspaper said, show that missions include snapping reconnaissance photos, gathering electronic transmissions, sending images of ongoing battles to field commanders and attacking militants with bombs and missiles, plus supporting U.S. Special Operations missions.

“Killer drones are the future of warfare,” Afsheen John Radsan, a former CIA lawyer who teaches at the William Mitchell College of Law in St. Paul, Minn., told a House panel in April. [Footnote 9]

But overshadowing that future is a fierce debate over how, where and by whom drones are being used. Of particular concern is the CIA's drone program, which reportedly has targeted suspected militants in western Pakistan and other remote trouble spots where the United States is not engaged in open hostilities, including Yemen, where a 2002 drone strike killed a group of Al Qaeda suspects that included a U.S. citizen. [Footnote 10]

The CIA attacks have raised important legal questions about the role of targeted killing in the fight against the Taliban and Al Qaeda. Administration officials contend that such killings are legal under established principles of self-defense, international laws of armed conflict and the Authorization for Use of Military Force — the so-called “law of 9/11” passed by Congress following the 2001 terrorist attacks.

In March, Harold Koh, the State Department's legal adviser, defended the administration's use of unmanned aircraft for targeted attacks, asserting that the United States “may use force consistent with its inherent right to self-defense under international law.” [Footnote 11]And CIA Director Leon E. Panetta called drone strikes “the only game in town in terms of confronting and trying to disrupt the Al Qaeda leadership.” [Footnote 12]

But critics say CIA attacks inside Pakistan violate international laws of armed conflict because the United States is not at war with Pakistan, is not using its drones as part of Pakistan's own military operations and its drone strikes are carried out by civilians in secret far from active battlefields. “You can never, at the end of the day, find a legal basis for the CIA to be doing this,” argues Mary Ellen O'Connell, a law professor at the University of Notre Dame, who says militants like Yazid should be pursued through law enforcement means, not covert attacks.

In a report this spring, Philip Alston, the United Nations special rapporteur on extrajudicial executions, sharply criticized targeted killings of terrorism suspects and the use of drones to carry them out, citing “the displacement of clear legal standards with a vaguely defined licen[s]e to kill, and the creation of a major accountability vacuum.” [Footnote 13] He also warned against “a ‘Playstation’ mentality to killing” with drone technology. [Footnote 14] A CIA spokeswoman told U.S. News & World Report that “without discussing or confirming any specific action, this agency's operations are … designed from the very start to be lawful and are subject to close oversight.” [Footnote 15]

In a groundbreaking exposition of the CIA's drone program, New Yorker reporter Jane Mayer wrote last fall that “embrace of the Predator program has occurred with remarkably little public discussion, given that it represents a radically new and geographically unbounded use of state-sanctioned lethal force. And, because of the CIA program's secrecy, there is no visible system of accountability in place, despite the fact that the agency has killed many civilians inside a politically fragile, nuclear-armed country with which the U.S. is not at war.” [Footnote 16]

On Capitol Hill, where hearings on drone policy were held this spring, U.S. Rep. John F. Tierney D-Mass., chairman of the House Subcommittee on National Security and Foreign Affairs, noted that “the use of unmanned weapons to target individuals — and, for that matter, the targeting of individuals in general — raises many complex legal questions. We must examine who can be a legitimate target, where that person can be legally targeted and when the risk of collateral damage is too high.” [Footnote 17]

At least 40 other nations, including China, Russia and Iran, have “begun to build, buy and deploy” unmanned planes, according to Brookings Institution senior fellow P. W. Singer. [Footnote 18] Last year, U.S. fighter jets shot down an unarmed Iranian spy drone over Iraq. [Footnote 19] And drones are in the arsenals of non-state actors, including Hezbollah, the Lebanese paramilitary group. National-security experts worry that if drones fall into the hands of terrorists, the United States itself could be at risk of attack. “Simple logic tells us that every day drones become a greater threat,” says Gary Solis, a former law professor at the U.S. Military Academy at West Point who now teaches at the Georgetown University Law Center.

“What you have moving forward is a debate not just about what can these systems do, but who can use them,” says Singer, author of Wired for War: The Robotics Revolution and Conflict in the 21st Century. “That question of who can use them covers the gamut from the military to the federal government to local police forces to civilian actors.”

The Issues:
* Do drone strikes comply with international law?
* Are drones an effective counter-terrorism tool?
* Is drone technology ethical for use in war?

For more information see the CQ Researcher report on "Drone Warfare" [subscription required] or purchase the PDF

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Footnotes:
[1] “Senior Afghan al-Qaeda leader ‘killed in Pakistan,’” BBC News, June 1, 2010, . See also Eric Schmitt, “American Strike Is Said to Kill a Top Qaeda Leader,” The New York Times, May 31, 2010; and Zeeshan Haider, “U.S. believes it killed al Qaeda No. 3,” Reuters, June 1, 2010.
[2] For background, see the following CQ Researcher reports: Peter Katel, “America at War,” July 23, 2010, pp. 605–628; Thomas J. Billitteri, “Afghanistan Dilemma,” Aug. 7, 2009, pp. 669–692; Peter Katel, “Rise in Counterinsurgency,” Sept. 5, 2008, pp. 697–720; Peter Katel, “Cost of the Iraq War,” April 25, 2008, pp. 361–384; and Robert Kiener, “Crisis in Pakistan,” CQ Global Researcher, December 2008, pp. 321–348.
[3] Peter Bergen and Katherine Tiedemann, “The Year of the Drone,” New America Foundation, 2010. Bergen is the CNN national security analyst and is a senior fellow at the New America Foundation.
[4] Adam Entous, “Special Report: How the White House Learned to Love the Drone,” Reuters.
[5] Andrea Elliott, “Militant's Path From Pakistan to Times Square,” The New York Times, June 22, 2010.
[6] Charlie Savage, “Rule Limiting Legal Services in Terror Cases Is Challenged,” The New York Times, Aug. 3, 2010, .
[7] Drone inventory figures and pilot-training facts are from statement of Rep. John F. Tierney, D-Mass., chairman, House Subcommittee on National Security and Foreign Affairs, Committee on Oversight and Government Reform, hearing on “Rise of the Drones: Unmanned Systems and the Future of War,” March 23, 2010.
[8] C. J. Chivers, et al., “View Is Bleaker Than Official Portrayal of War in Afghanistan,” The New York Times, July 25, 2010.
[9] Statement of Afsheen John Radsan before the House Subcommittee on National Security and Foreign Affairs, “Loftier Standards for the CIA's Remote-Control Killing,” April 28, 2010.
[10] “U.S. defends Yemen strike,” BBC News, Nov. 10, 2002.
[11] Harold Hongju Koh, “The Obama Administration and International Law,” U.S. Department of State, March 25, 2010.
[12] Mary Louise Kelly, “Officials: Bin Laden Running Out of Space to Hide,” National Public Radio, June 5, 2009.
[13] Philip Alston, “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,” United Nations General Assembly, Human Rights Council, May 28, 2010, p. 3. See also Charlie Savage, “U.N. Report Highly Critical of U.S. Drone Attacks,” The New York Times, June 2, 2010.
[14] Ibid., p. 25.
[15] Quoted in Alex Kingsbury, “CIA Drone Strikes Draw United Nations Fire,” U.S. News & World Report, June 10, 2010.
[16] Jane Mayer, “The Predator War,” The New Yorker, Oct. 26, 2009, p. 38.
[17] Statement of Rep. John F. Tierney, D-Mass., Chairman, Subcommittee on National Security and Foreign Affairs, U.S. House of Representatives, April 28, 2010.
[18] P. W. Singer, “Defending Against Drones,” Newsweek, Feb. 25, 2010.
[19] “U.S.: We shot down Iranian drone over Iraq,” CNN, March 16, 2009.