DeM Banter: something we have discussed a great deal here on the m100Group over the past 18 months and it appears to rapidly becoming an issue of larger strategic international importance. When will Russia first use this capability in Chechnya? When will China use it in Nepal? What will the international response be? As John Bellinger says below “what is sauce for the goose is sauce for the gander.” ….and what will the next 60 months or so bring? Always interesting….
June 1, 2013
Barack Obama’s rules for drones could shape the new global laws of war
When it comes to lethal drone strikes against foreign targets, America’s government and Congress should be aware that “what is sauce for the goose is sauce for the gander”, says John Bellinger, for eight years a government lawyer charged with explaining George W. Bush’s global war on terror to allies.
China and Russia are just two of the powers that may soon launch their own fleets of unmanned aircraft against suspected foes. It is not too far-fetched to imagine a near future in which a Russian drone targets a Chechen radical based in neighbouring Georgia, say, who appears immune from capture while apparently plotting an imminent strike on Russian targets.
Experts such as Mr Bellinger have warned Congress in public hearings that unless America sets clear, internationally accepted rules for its own drone strikes, it can hardly condemn Russian or Chinese aerial killings with any credibility. Such advice has been echoed, privately, by diplomats from some of America’s closest partners, who fret about the legal underpinnings of Barack Obama’s war on terror. A few phrases passed by Congress days after the September 11th 2001 attacks give the president broad war-making powers in the name of self-defence.
But such allies are worried not just about Mr Obama’s ability to stare down alarming, fast-rising powers such as China. The other reason why they want him to lead America back onto higher moral ground is that they fear for their own reputations, if they lend help to drone attacks. Even supportive governments face some hard choices about passing intelligence to America, when the ensuing drone strikes may leave spooks and spymasters facing public anger and even lawsuits.
On May 23rd Mr Obama moved to answer both hostile critics and anxious friends. In an hour-long speech, he announced tighter constraints on lethal American drone strikes. His aides hailed it as a pivotal moment, born of two years of inter-agency wrangling and reflection by the commander-in-chief.
The killings will go on
Mr Obama made it clear that drone strikes would continue. (And indeed on May 29th an American drone was said to have killed the deputy head of the Pakistani Taliban, see “Dealing with Pakistan’s extremists: The hawk and the dove”). But he also described new rules intended to bind both his government and successive presidents. Mr Obama argued that secret, precise drone strikes carry lower risks of civilian casualties and diplomatic fallout than attacks with conventional aircraft or special forces. However, because such missions trigger less public scrutiny than sending troops overseas, he said, they can “lead a president and his team to view drone strikes as a cure-all for terrorism”.
Much of his speech was intended for a domestic audience. The president spoke of winding down the boundless, militarised war on terror that he inherited. He envisioned using law enforcement, intelligence and foreign allies to contain threats not so different from the ones that America faced before September 11th 2001. Mr Obama aired the latest episode of his long argument with Congress over the mooted closure of the Guantánamo Bay prison camp in Cuba. He offered to move a few more detainees but ducked a hard question: what to do with those thought too dangerous to release, but who cannot be prosecuted for lack of admissible evidence. He offered one substantial piece of news: the Pentagon has been asked to designate a site on American soil for military commissions to try and sentence Guantánamo detainees.
In the long run, Mr Obama’s speech may be remembered for effects far from Washington. At its core lay (still classified) guidelines codifying standards for lethal drone strikes. In his description, America now only acts “against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured–the highest standard we can set.”
Officials added a further gloss in briefings. In a shift backed by such Obama aides as John Brennan, a former White House counter-terrorism chief recently appointed to run the CIA, the government would prefer to move away from CIA strikes (which are secret and deniable) towards drone attacks controlled by the armed forces (which would be more transparent). In addition to oversight by Congress, Mr Obama suggested new controls: perhaps a special court with powers to authorise killings, or an independent overseer within the executive branch.
Mr Obama left himself wriggle-room, for example over how an imminent threat should be defined. Much damage has already been done to America’s diplomatic standing worldwide and to its image among Muslims. But if, by binding America unilaterally to higher standards, Mr Obama helps set norms for other countries as they acquire drones, that would be something. Such example-setting is a slow process, says Mr Bellinger, but “this is how customary international law is made”.
Mr Obama had several aims, says Benjamin Rhodes, a deputy national security adviser who wrote the president’s speech. Since the war on terror has lasted for so long and shows no sign of ending, it was time to “bring in” the American public by explaining the rules for drones, he says. The swift spread of technology also provided a spur. Other countries will soon have killer drones. Only if America can describe the international legal framework for its own strikes with “specificity” will it be able to shape the new laws of war.