November 1, 2010
Pressure is building for President Obama to rein in one of the CIA's favorite weapons.
The CIA continues drone strikes in Pakistan at record rates, and while no one in the administration will officially confirm the drone program exists, it's well-known that President Obama's national security team has embraced the remote aircraft as one of its best weapons against terrorists. Behind the scenes, administration officials have been hashing out the legal framework that allows the United States to kill people abroad, including American citizens. But pressure continues to mount from some of Obama's closest allies to disband the drone program, which they view as an illegal form of extrajudicial assassination.
Why would any president, particularly one whose base relies on liberals and progressives, embrace a regime of targeted killing without having a very good legal defense? After talking to international lawyers and intelligence officials during the past few months, this emerges as the big, un- answered question.
To date, the Obama administration still hasn't articulated a full-throated doctrine for why using drones is legitimate under international law. Even the most strident supporters of drone strikes believe they could be deemed illegal under the laws of war-and not only by a foreign court, but potentially by an American judge as well. The most specific defense for drone killings has come from Harold Hongju Koh, the legal adviser to the State Department and the official who ensures the U.S. complies with its treaties. In a March 25 speech before the American Society of International Law's annual meeting, Koh said, "The United States is in an armed conflict with al Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and might use force consistent with its inherent right to self-defense under international law."
Even the most strident critics of drones agree the United States can legitimately claim self-defense in attacking al Qaeda and Taliban forces in Afghanistan. But most of the CIA drone strikes happen in Pakistan, a nation with which the United States is not at war and that wasn't harboring Osama bin Laden and his al Qaeda forces before Sept. 11, 2001.
Koh suggested because al Qaeda is at war with the United States, the United States is free to hunt and kill al Qaeda members who aren't on the battlefields of Afghanistan. So, would it be legal for the CIA to kill Osama bin Laden if he were in Germany? Or London? There's not a clear-cut answer to that. And officials have avoided giving a direct one. Fortunately for them, they haven't had to. Bin Laden is still presumably hiding in the "lawless" regions of tribal Pakistan. As long as he stays in that gray area, the administration has some wiggle room to kill him.
Before Koh's speech, the drone program rested on a creaky legal foundation.
After the speech, the foundation is on slightly firmer ground. But the administration hasn't settled this question of where the battlefield in the war on terror actually ends. The issue got even more complicated in early October when a drone strike killed eight militants in Pakistan who were reportedly German. The lack of clarity around drone strikes creates a huge vulnerability for a president whose base already is growing dis-enchanted with the man they elected to change U.S. security policy. In recent conversations with some of the most vocal opponents of the drone program, they've made clear their intentions to redouble their efforts to either rein in the attacks or stop them altogether. They will make trouble for Obama.
Shane Harris is the author of The Watchers: The Rise of America's Surveillance State. He covered intelligence and technology at Government Executive from 2001 to 2005.
November 1, 2010