March 8, 2010,
Vol. 15, No. 24Targeting terrorists and militants with Predator drone strikes is one campaign promise President Obama has kept to the letter. Missiles fired from remote-piloted “unmanned aerial vehicles” (UAVs) at al Qaeda and Taliban leadership steadily and sharply increased over the course of 2009. Senior U.S. military and intelligence officials have called them one of the most effective tactics available to strike directly at al Qaeda and the Taliban. Indeed, CIA director Leon Panetta says that drones are “the only game in town in terms of confronting or trying to disrupt the al Qaeda leadership.” There is every reason to believe him.
In January 2010 alone, a dozen strikes were launched just in the Pakistani tribal region of Waziristan. With the beginning of the promised offensive against the Taliban in Afghanistan, Predator attacks have likewise surged against targets in Pakistan, concurrent with moves by Pakistani intelligence to detain Taliban leaders, and also concurrent with the extensive use of UAVs on the battlefield in the Afghan offensive (primarily as an urban surveillance tool but also for missile strikes). Obama promised that his administration would go after al Qaeda and Taliban in their refuges in Pakistan—with or without the permission of the Pakistani government, he pointedly said—and so he has done.
The aggressive expansion of the Predator targeted killing program is the Obama administration’s one unambiguous innovation in the war against terrorists. The adaptation of UAV surveillance craft into missile platforms took place as an improvisation in 2002 under the Bush administration—but its embrace as the centerpiece of U.S. counterterrorism operations belongs to Obama. It is not the whole of it—the Obama administration has expanded joint operations with Pakistan and Yemen, and launched commando operations in Somalia against terrorists. But of all the ways it has undertaken to strike directly against terrorists, this administration owns the Predator drone strategy. It argued for it, expanded it, and used it, in the words of the president’s State of the Union address, to “take the fight to al Qaeda.”
As al Qaeda, its affiliates, and other transnational jihadists seek shelter in lightly governed places such as Yemen or Somalia, the Obama administration says the United States will follow them and deny them safe haven. Speaking at West Point, the president obliquely referred to so-called targeted killings—we will have to be “nimble and precise” in the use of military power, he said, adding that “high-ranking al Qaeda and Taliban leaders have been killed, and we have stepped up the pressure on al Qaeda worldwide.”
The Predator drone strategy is a rare example of something that has gone really, really well for the Obama administration. Counterterrorism “on offense” has done better, ironically, under an administration that hoped it could just play counterterrorism on defense—wind down wars, wish away the threat as a bad dream from the Bush years, hope the whole business would fade away so it could focus on health care. Yet for all that, the Obama administration, through Predator strikes, is taking the fight to the enemy.
And, let’s face it, in dealing with terrorist groups in ungoverned places in the world, we have few good options besides UAVs. Drones permit the United States to go directly after terrorists, rather than having to fight through whole countries to reach them. Maybe that’s not enough to win. Maybe “light-footprint” counterterrorism via drones turns out to be just the latest chimera in the perennial effort to find a way to win a war through strategic airpower. Yet even in a serious counterinsurgency on the ground, drones will still be important as a means of attacking terrorists while clearing and holding territory. The upshot? As long as we engage in counterterrorism, drones will be a critical part of our offense.
Obama deserves support and praise for this program from across the political spectrum. More than that, though, the drone strikes need an aggressive defense against increasingly vocal critics who are moving to create around drone warfare a narrative of American wickedness and cowardice and of CIA perfidy.
Here the administration has dropped the ball. It has so far failed to provide a robust affirmation of the propositions that underwrite Predator drone warfare. Namely:
n Targeted killings of terrorists, including by Predators and even when the targets are American citizens, are a lawful practice;
n Use of force is justified against terrorists anywhere they set up safe havens, including in states that cannot or will not prevent them;
n These operations may be covert—and they are as justifiable when the CIA is tasked to carry them out secretly as when the military does so in open armed conflict.
n All of the above fall within the traditional American legal view of “self-defense” in international law, and “vital national security interests” in U.S. domestic law.
There are good reasons for Republicans and centrist Democrats to make common cause in defending these propositions. On the one hand, they should want to aggressively protect the administration against its external critics—the domestic and international left—who are eager to prosecute Americans for their actions in the war on terror. They should also want to make clear that in defending drone strikes, they are defending the American (and not just the Obama) legal and strategic position. Moreover, it will be the American view of domestic and international law for future administrations, Democratic and Republican.
At the same time, congressional Republicans and centrist Democrats need to put Obama’s senior legal officials on the record and invite them to defend their own administration, defend it to the full extent that the Obama administration’s actions require. Which is to say, Congress needs to hear publicly from senior administration lawyers and officials who might be personally less-than-enthused about targeted killings of terrorists and not eager to endorse them publicly, or to do so only with hedged and narrow legal rationales from which they can later walk away.
Consider, for instance, the diffidence of Harold Koh, the legal adviser of the Department of State. In an informal public discussion with his predecessor, John Bellinger, aired on C-SPAN on February 17, he was asked about drones and targeted killings and declined to say that the practice was lawful. (Granted, it was in an unscripted setting, which cannot be taken as anyone’s last word and on which it would be unfair to place too much weight.) All he said was that if he concluded that it was unlawful, he would, if he thought it appropriate, resign his position. He added that he remained at his post. The statement falls far short of the defense one might hope for from such a high-ranking administration lawyer. More than a year into the new administration, that ought surely to strike the general counsels of the CIA, the Pentagon, the Director of National Intelligence, the NSC, and other agencies directly conducting these activities as somewhat less than reassuring.
In fact, the administration’s top lawyers should offer a public legal defense of its policies, and congressional Republicans and Democrats should insist on such a defense. This is partly to protect the full use-of-force tools of national security for future administrations, by affirming the traditional U.S. view of their legality. But it is also to protect and reassure the personnel of the CIA, NSC, and intelligence and military agencies who carry out these policies that they are not just effective but lawful policies of the U.S. government and will be publicly defended as such by their superiors.
Even as the Obama administration increasingly relies on Predator strikes for its counterterrorism strategy, the international legal basis of drone warfare (more precisely, its perceived international legal legitimacy) is eroding from under the administration’s feet—largely through the U.S. government’s inattention and unwillingness to defend its legal grounds, and require its own senior lawyers to step up and defend it as a matter of law, legal policy, and legal diplomacy. On the one hand, the president takes credit for the policy—as frankly he should—as taking the fight to the enemy. His vice president positively beams with pride over the administration’s flock of Predator goslings. On the other hand, the Obama administration appears remarkably sanguine about the campaign gearing up in the “international law community” aimed at undermining the legal basis of targeted killing as well as its broad political legitimacy, and ultimately at stigmatizing the use of Predators as both illegal and a coward’s weapon.
Stigmatizing the technology and the practice of targeted killing is only half of it, though. The other half is to undermine the idea that the CIA may use force and has the authority to act covertly under orders from the president and disclosure to Congress, as long provided in U.S. law. The aim is to create a legal and political perception that, under international law, all uses of force must be overt—either as law enforcement or as armed conflict conducted by uniformed military.
The Obama administration is complacent about this emerging “international soft law” campaign. But Obama’s opponents in this country, for their part, likewise underestimate and ignore the threat such a campaign presents to national security. That’s apparently because many on the right find it hard to imagine that mere congeries of NGOs, academics, activists, U.N. officials, and their allies could ever overcome “hard” American national security interests, particularly when covered by the magic of the Obama administration. Both liberal and conservative national security hands, looking at the long history of accepted lawfulness of targeted killings under American law, think, “Come on, there’s obvious sense to this, legal and political. These arguments in domestic and international law have long been settled, at least as far as the U.S. government is concerned.” But if there’s a sense to it, there’s a sensibility as well, one that goes to the overall political and legal “legitimacy” of the practice within a vague, diaphanous, but quite real thing called “global public opinion,” the which is woven and spun by the interlocking international “soft law” community and global media.
It’s a mistake to remain oblivious to either the sense or the sensibility. Outside of government, the oblivious include hard-realist conservatives. Inside government, some important political-legal actors are struggling impressively both to overcome bureaucratic inertia and get in front of this issue, and to overcome factions within government unpersuaded by, if not overtly opposed to, this program—particularly as conducted by the CIA. Those actors deserve political support from congressional Republicans and Democrats. Because obliviousness to the sensibility of lawfulness and legitimacy—well, we should all know better by now. Does anyone still believe that the international legal-media-academic-NGO-international organization-global opinion complex cannot set terms of debate over targeted killing or covert action? Or that it cannot overcome “hard” American security interests? Or that this is merely another fringe advocacy campaign of no real consequence, whether in the United States, or abroad in Europe, or at the United Nations?
T
he Obama administration assumes that it uniquely sets the terms of legal legitimacy and has the final word on political sensibility. This is not so—certainly not on this issue. The international soft-law campaign looks to the long-term if necessary, and will seek the political death of targeted killings, Predator drones, and their progeny, and even perhaps to CIA covert action, by a hundred thousand tiny paper cuts. The campaign has already moved to the media. Starting with Jane Mayer’s narrative of Predator drone targeted killing in the New Yorker last October, and followed by many imitators, the ideological framework of the story has shifted. In the space of a year—Obama’s year, no less—it has moved from Candidate Obama’s brave articulation of a bold new strategy for attacking terrorists to the NGOs’ preferred narrative of a cowardly, secretive American CIA dealing collateral damage from the skies. Here’s the thumbnail version of drone warfare, as portrayed in the media.
Focus first on the dozens of civilian victims in a Predator strike, particularly wives of the (merely alleged) al Qaeda suspect and many, many children. You don’t actually have to go to Waziristan, by the way, al Jazeera will have done all the “reporting” for you (relying on local, Taliban-influenced sources). Emphasize the casualties, without, however, comparing the casualties that would result from realistic military alternatives, which include bombing or perhaps a rolling artillery barrage by the Pakistani Army. Insinuate strongly that it is not known for sure (at least with courtroom levels of proof) if the target was al Qaeda.
more : http://weeklystandard.com/articles/predators-over-pakistan?page=4
Shalom Freedman says: 
