By David French
Thursday, March 07, 2013
The drone image was grainy, but clear enough to make out
roughly 20 military-age males lounging around in a courtyard. Every now and
again you’d see a small child run into the courtyard, then run back out again.
Occasionally a woman could be seen, dressed in a burqa. She appeared to be
preparing a meal. No one seemed to be carrying a weapon — at least none that we
could see. To all appearances, it looked like a gathering of friends, men who
were about to sit and enjoy their dinner.
Yet that was not just any courtyard — it was the known
personal residence of a senior al-Qaeda commander in our Area of Operations, a
residence that until that night had been deserted day after day, week after
week. And the number of men roughly matched our estimate of the size of the
local IED cells, plus the commander’s own small personal security detail.
No ground troops were within miles of the building, we
had no helicopters to rapidly transport troopers to investigate and/or engage
the occupants of the house, and the number of cars clustered around the
courtyard indicated that the group could disperse quickly.
But a drone circled above, and the lives of everyone
below hung on a thread.
My executive officer turned to me: “Well, David, what do
you think?”
*** *** *** *** ***
Parsing through the rhetoric, there are really two drone
debates in America. The first is a continuation and amplification of the
domestic and international debate that began shortly after September 11, 2001.
Is our fight against al-Qaeda a war or merely a long and complex police
operation? In a police operation, each individual receives due process, killing
occurs in self-defense only, and captives are tried in civilian courts using
civilian rules of evidence. Collateral damage is wholly unacceptable and
legally proper only if unavoidable in the context of a limited, self-defense-motivated
kinetic operation. In other words, to the law-enforcement advocates, the War on
Terror should be legally more like the “war on drugs” than, say, Desert Storm
or the Vietnam War.
In a true military conflict, however, there is no “due
process” as we think of the term. In fact, the only real due process that
exists is the political process (typically a declaration of war or
congressional authorization for the use of force) that commences hostilities.
Positively identified enemy forces can then be killed in combat, while they are
fleeing, while they are eating, or even while they are asleep. The ability to
kill is limited by the laws of war, not by civilian legal standards, and the
laws of war give a combatant state wide latitude to engage its enemy.
In the fight between those who argue for law enforcement
and those who seek to wage war, drones are merely a convenient (and now
high-profile) launching point for discussion. The problem isn’t really with the
drone; it’s with the air strike — an unmistakable tactic of war.
The second debate is less over tactics and more about
trust. There are many Americans who fully endorse the concept of a war against
al-Qaeda, but they simply don’t want to see a government they mistrust abuse
its war powers to create dangerous precedents for killing the innocent or
disfavored. News reports that highlight the primacy of political leaders in
targeting decisions (such as the now-famous New York Times “kill list” article)
bring military targeting directly into the world of politics. The debate
becomes less about the tactic itself than about the “Targeter-in-Chief” —
President Obama.
The distrust is so extreme that some critics (even those
who are otherwise clear about the nature of our national-security threats and
the need to use robust military force) are willing to overturn the
constitutionally mandated military command structure and establish civilian
judicial oversight.
For this mistrust, President Obama has mainly himself to
blame. By personalizing drone strikes — while selective and opportunistic
security leaks cast him as a kind of philosopher-king, reading Aquinas as he
delivers kill orders — he inevitably politicized a sound and rather
conventional military tactic. In our hyper-polarized times, the thought of a
president with a “kill list” that even includes fellow Americans is simply a
bridge too far.
Moreover, putting targeting in the hands of politicians
feeds the narrative of the law-enforcement advocates. If we’re in a true
military conflict, why isn’t the military deciding whom to strike and when? If
we have the time to elevate a strike decision all the way to the White House,
isn’t there also time for judicial oversight? After all, a politician can
hardly claim more military competence than a judge.
While the law-enforcement/war debate can’t truly be
settled by reforming the drone program, a few simple reforms can introduce
greater clarity and transparency, eliminate much of the politically created
atmosphere of mistrust, and improve the military efficiency and effectiveness
of the program itself. I suggest three steps:
First, clarify the conflict’s status through new
legislation. Andrew McCarthy and other informed critics of the administration’s
drone program are correct that the current legislative framework for the
conflict is in desperate need of update and reform. The original Authorization
for Use of Military Force (AUMF) — enacted in the fog of war following 9/11 —
clearly creates a state of military conflict, but is excessively ambiguous
about the belligerents, or at least excessively ambiguous in light of the war’s
developments over the last decade-plus.
The drawdown from Afghanistan presents an opportunity to
update and revise the AUMF not only to clearly identify the targets of our
ongoing military effort but also to establish a relatively transparent process
for determining when closely aligned jihadist groups can also become Declared
Hostile Forces and thus targetable under wartime Rules of Engagement.
We already have a political process for designating
Foreign Terrorist Organizations, and statutorily creating a more rigorous
process for designating Declared Hostile Forces would mitigate concerns of
unending war against undefined enemies. At the same time, however, the
legislation should not limit the Commander-in-Chief’s inherent ability to
respond rapidly to truly “imminent” military threats (regardless of source) as
they arise.
Second, militarize the targeting process. It is
imperative that civilian decision-makers be largely removed from the targeting
decision-making process. While there are certainly decisions that only the
president can make (such as the decision to begin an aerial campaign over the
sovereign territory of another nation), as a general rule, the drone campaign
should be conducted by military authorities, with civilian accountability for
its overall success and failure, not with civilian control of the individual
strikes themselves. In other words, it should be conducted more like a conventional
military campaign and less like a series of presidential execution orders.
In fact, even CIA strikes should be conducted under
ultimate military oversight, and the bias should be in favor of using military
assets except when diplomatic or military necessity requires CIA drones. By
replacing the mistrusted (and less competent) politicians with seemingly the
only trusted public institution in the United States (the military), we will
not only improve the campaign’s effectiveness; we will remove it further from
partisan politics and partisan rancor.
Third, denationalize the targeting. Simply put,
citizenship should be irrelevant when targeting members of Declared Hostile
Forces, and it’s always irrelevant when targeting in pure self-defense. In Ex Parte
Quirin, the Supreme Court was quite clear:
Citizenship in the United States of an enemy belligerent
does not relieve him from the consequences of a belligerency which is unlawful
because in violation of the law of war. Citizens who associate themselves with
the military arm of the enemy government, and, with its aid, guidance and
direction, enter this country bent on hostile acts, are enemy belligerents
within the meaning of the Hague Convention and the law of war.
The administration’s now-infamous white paper goes too
far in providing special targeting protections for American citizens. Creating
a partially immune class of American super-terrorists is militarily foolish and
wholly unnecessary under the Constitution. The Fifth Amendment, after all, on
its face makes no distinctions between citizens and non-citizens, and the
legislative declaration of war is all the “process” due an enemy belligerent.
At the same time, we should amend the Immigration and
Nationality Act to strip citizenship from those who enter or serve any armed
force (state or non-state) engaged in armed conflict (as designated by Act of
Congress) against our nation. Currently, the law strips citizenship from those
who serve in the “armed forces” of another state, yet for most of the last
decade our military effort has been concentrated against non-state terrorist
organizations.
While there should be transparency in the classification
and designation of Declared Hostile Forces — those forces that can be targeted
under the laws of war — calls for greater transparency in the individual
targeting process are highly problematic. Individual targeting decisions tend
to be based on sources of information and understandings of enemy behavior that
we simply cannot publicly disclose without imperiling those sources or alerting
our enemies of the necessity of changing their behavior.
No targeting process is perfect, but our military has
long experience in identifying and engaging terrorists, with an extraordinarily
low ratio of civilian casualties — a ratio unprecedented in warfare. Further
civilian involvement is more likely to impair the targeting process than
improve it.
*** *** *** *** ***
I believed there was sufficient evidence for a strike,
but no one died that night in Diyala Province, Iraq — or, more precisely, no
one died in that courtyard. The command decided against an attack. There were
explosions and death elsewhere, as bombs planted by terrorists claimed
civilians and soldiers alike. Should those men in the courtyard have lived or
died? Had they died, would others have lived?
Those are the questions of the drone campaign. They are
not questions for a politician, but questions, ultimately, for a warrior — a
warrior who knows the terrain and the population and who knows what it means to
take life, to risk his own, and to save others.
We’re at war. And in war we trust our men and women in
uniform — unless and until they prove unworthy of that trust. So far, they have
proven more worthy of that trust than our politicians.
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