Drone Warfare: Jus Ad Bellum?
By Don FranzenDecember 5, 2013
Drone Warfare by Medea Benjamin
President Obama, at first somewhat ruffled by these outbursts, appeared to allow the questioning to continue for a time. When silence returned to the chamber, he paused to reflect, extemporaneously. “The voice of that woman is worth paying attention to,” he said. “Obviously I do not agree with much of what she said. And obviously she wasn’t listening to me and much of what I said. But these are tough issues, and the suggestion that we can gloss over them is wrong.”
The president’s interrogator was Medea Benjamin, cofounder of CODEPINK, a prominent women’s antiwar organization, and recently the author of Drone Warfare: Killing by Remote Control. The event was captured on camera, of course, and can be viewed at any of a number of websites (including here).
Her book, Drone Warfare, is a fierce polemic against the use of drone technology in warfare. Benjamin has next to nothing good to say about drones. Without relent, she hammers on the bad and the ugly of this technology. (The good, if any, she grudgingly acknowledges near the end of her book, perhaps for fighting fires or locating lost children.) Her rendition of the bad and the ugly is impressive: it is a cancerous multibillion-dollar growth industry for the military-industrial complex, she writes, a blind, thoughtless form of murder practiced by desensitized young men and women toying with the lethal equivalents of joysticks. It is fundamentally immoral, slaying innocent bystanders along with calculated targets (“collateral damage” in the parlance of the military). It makes enemies of America’s friends — not only because of the carnage of innocents but also for the unauthorized invasion of other nations’ sovereign territories.
At the moment, the United States has a considerable lead on drone technology. What will happen, Benjamin asks, when the rest of the world catches up (as it inevitably will)? How will the United States react when China or Russia asserts a similar right to lob drone-launched missiles into foreign territory as an act of “self-defense?” Will the United States be comfortable with the legal positions it has staked out at time when only it commanded this technology?
Published in the spring of this year, Benjamin’s Drone Warfare has proven prophetic in its insistence that the American policy of drone strikes may undermine relations with other nations. In his recent visit to Washington, Pakistani Prime Minister Nawaz Sharif urged President Obama to end drone strikes on Pakistani soil (this, despite evidence that previous Pakistani regimes had authorized or at least condoned such strikes). A similar complaint was voiced by Afghanistan’s President Hamid Karzai, who, in late November this year, threatened to hold up that country’s security agreement with the United States because of civilian deaths caused by NATO drone strikes. The CIA’s drone warfare program is classified, so the number of innocent bystanders slain is unknown, but Benjamin cites an estimate of between 3,600 and 3,400 Pakistanis killed between 2004 and 2012. If these numbers are correct, the carnage in Pakistan would be as great as or greater than America suffered in 9/11.
Benjamin devotes a chapter to the legality of drone warfare and concludes it violates due process and international law. “American presidents now assert the right to be judge, juror and executioner, a de facto license to kill free from the irksome interference of checks and balances,” she writes. A 007 presidency, in effect. Chillingly, Benjamin describes “Terror Tuesdays” — weekly meetings when President Obama and his staff add suspects to the drone hit lists. Under Presidents Ford, Carter, and Reagan, American policy forbade targeted assassination, but post 9/11, President Bush lifted this ban, and President Obama has, so far, left Bush’s policy in effect, and indeed, at least until very recently, greatly expanded the number of assassinations by drone strikes.
The legal support for the executive’s right to order executions by drone is the Authorization for the Use of Military Force Act of 2001 (the AUMF), which gives the president power to “use all necessary and appropriate force […] to pursue those responsible for the 9/11 attacks.” For Benjamin, this legal justification is unpersuasive — she and like-minded critics argue that whether drone strikes are “necessary and appropriate” is the question, not the answer. Since the AUMF is specifically tied to pursuit of the perpetrators of the 9/11 attacks, even a drone supporter such as American University’s Professor Kenneth Anderson acknowledges reliance on the AUMF to pursue today’s terrorists “looks increasingly threadbare,” and that at some point “the president will have to act either under his own constitutional authority or obtain a new congressional authorization.” On balance, to this reviewer, the AUMF statutory basis for the drone program seems tenuous.
As far as international law is concerned, Benjamin acknowledges the right of nations to “self-defense,” but outside a combat zone, she contends (and without citation) that “the killing must be necessary to protect life and there must be no other means, such as capture, or nonlethal incapacitation, to prevent that threat to life.” One wonders if she overstates the case, since, judged by this standard, it’s hard to see how any drone strike could be justified. To explain the government’s position, Benjamin quotes Harold Koh, one of President Obama’s legal advisors, who has argued that, as the United States is at war with al-Qaeda and the Taliban, it “may use force consistent with its inherent right to self-defense” including “lethal operations conducting with the use of unmanned aerial vehicles.” Amnesty International and Human Rights Watch hew much closer to Benjamin, and they separately accused the United States of breaking international law by killing civilians in missile and drone strikes intended for militants in Pakistan and Yemen. There are indications the Obama administration may be listening. Several recent anti-terrorist missions have notably involved on-the-ground kill or capture instead of drone strikes.
Benjamin also raises the vexing issue of drone strikes directed at American citizens, such as the case of Anwar al-Awlaki, a US citizen, Muslim cleric, and propagandist for an al-Qaeda–styled terrorist group, who was killed in a drone strike in Yemen. President Obama’s right to order the assassination of an American citizen on foreign soil was upheld in court as an executive decision beyond judicial review (meaning, the court concluded it could not second guess the president’s decision without entering into foreign policy issues reserved to the executive). What has happened, Benjamin asks, to the presumption of innocence and due process? As an American citizen, she urges, al-Awlaki was entitled to a jury trial (even if in absentia) to determine his guilt or innocence, not execution by executive decree. She glosses over the government’s justification, articulated by no less than President Obama himself: “[W]hen a US citizen goes abroad to wage war against America — and is actively plotting to kill U.S. citizens; and when neither the United States, nor our partners are in a position to capture him before he carries out a plot — his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a swat team.” Surprisingly, Benjamin provides no discussion of the “unwilling and unable doctrine,” an established principle of international law that sanctions governments taking action in another country’s territory to protect itself when the other government is “unwilling or unable” to do so, and a doctrinal underpinning of the administration's justification of drone use.
Benjamin shows considerable knowledge of her subject but displays little interest in teasing out the subtleties of its thorny issues. More nuanced arguments would help — a good advocate knows to take account of the opponent’s views, give credit where due, then state the counterargument. But this is not Benjamin’s style. In the end, she is less convincing for the full gallop at which she races to her conclusions. Whether one admires or opposes her conclusions, the reductive path Benjamin pursues is not always satisfying. Sic semper the polemic.
Questions about morality and legality in war have an oxymoronic quality — war by its nature involves the suspension of the most fundamental moral injunction, “Thou Shalt Not Kill.” But questions about the right to engage in war and the means to conduct it have concerned us throughout the ages. The early Romans worried over having just cause to wage war — casus belli was the Latin phrase. (A war unjustly started, they argued, would lack favor with the gods, and thus be doomed to defeat.) Later, Scholastic philosophers concerned themselves with issues of jus ad bellum — whether the means employed to engage in war are just — and in modern times nations have sought to bind themselves by treaty to refrain from the use of certain weaponry (such as chemical gas, to take an example in recent headlines). Benjamin is against the wars in Iraq and Afghanistan, as her involvement with CODEPINK demonstrates, but her new book asks us not to judge the wisdom of our current international conflicts, but the justice of using silent killing machines to slay perceived opponents. Despite its strident tone and argumentative style, her book deserves to be given grave consideration. To quote our president, “these are tough issues, and the suggestion that we can gloss over them is wrong.”
Don Franzen is a lawyer in Beverly Hills specializing in entertainment and business law. He has lectured on entertainment law at the Eastman School of Music, Santa Monica College’s Academy of Entertainment and Technology, the Berklee School of Music in Valencia, Spain, and lectures at UCLA’s Herb Albert School of Music, where he teaches two courses on the law and the music industry. He has published articles on legal issues in newspapers, magazines, and law journals. He serves on the board of the Los Angeles Opera and counts among his clients leading performers in opera, orchestral music, film, and the recording industries. He is the legal affairs editor for Los Angeles Review of Books.
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