People stand on the wreckage of a house destroyed by an air strike last year that was targeting al Qaeda-linked militants, in the southern Yemeni town of Jaar, February 1, 2013. Reuters/Khaled Abdullah
Imagine that Russian President Vladimir Putin had used remote-controlled drones armed with missiles to kill thousands of “enemies” (and plenty of civilians) throughout Asia and Eastern Europe. Imagine, further, that Putin refused to acknowledge any of the killings and simply asserted in general terms that he had the right to kill anyone he secretly determined was a leader of the Chechen rebels or “associated forces,” even if they posed no immediate threat of attack on Russia. How would the State Department treat such a practice in its annual reports on human rights compliance?
Conveniently, the State Department’s country reports leave out the United States. Otherwise, it might have to pass judgment on President Obama’s use of drones to kill thousands of our ”enemies,” and lots of civilians, many of them far from any battlefield. But as citizens in whose name the president is exercising this power, we need to pass judgment. The challenge is that Obama has kept so much of the policy and practice under wraps that it is almost impossible to do this. The leak of a Justice Department white paper defending the legality of killing even US citizens provides the most detailed look yet at this disturbing practice. The more we learn, the more troubling the practice is.
Some critics indiscriminately decry all drone strikes as “extrajudicial assassinations,” arguing that killing is never lawful beyond the battlefield and even comparing the practice to former President George W. Bush’s authorization of torture. But those criticisms are exaggerated and misguided. Killing and torture are fundamentally different. Governments have always killed the enemy during wars, and it is not unlawful to do so. No one accuses Abraham Lincoln or Franklin Roosevelt of “extrajudicial assassinations” because their troops killed tens of thousands of enemy soldiers without charges or trials. That the Confederate soldiers were American citizens doesn’t change that fact. And even in the absence of an existing war, and therefore outside any battlefield, states are permitted to use lethal force to respond to an imminent armed attack.
Thus, drone strikes against enemy fighters in Afghanistan, or even in the border regions of Pakistan that have become part of the battlefield, are not inherently illegal, so long as the latter are done with Pakistan’s consent. Nor is it wrong or unlawful to deploy a drone where there is no other way to halt an imminent attack.
But the white paper does not limit the president’s authority to kill to members of Al Qaeda and the Taliban, or to those planning an immediate attack. It maintains that the president can kill an American citizen who is not a member of Al Qaeda, not on a battlefield, not participating in hostilities and not engaged in or planning an attack against the United States when he is killed. What’s more, the White House evidently believes it can kill us in secret and never own up to the fact. It has steadfastly refused to officially acknowledge that it has killed anyone with a drone outside Afghanistan.
So it won’t do to dismiss the drone program as illegal assassinations, full stop. A more nuanced critique is necessary. The program is fundamentally flawed in at least four respects:
1. The power to kill with drones should be governed by clear, transparent rules, not by a secret playbook. In the early days of the Obama administration, the drone program was entirely secret. Over time, administration officials have spoken in general terms about the legal standards they employ. But even after the white paper’s disclosure, much remains unclear. We don’t know, for example, what procedures are used to determine whether a person is properly placed on the “kill list,” nor even what standard of proof is required. Does anyone, for example, play the role of devil’s advocate, defending the absent target and questioning the government’s case? Surely if the president claims the power to kill any of us without trial, we have a right to know the standards and procedures he will use.