The following is Cohn’s introduction to Drones and Targeted Killing, entitled “A Frightening New Way of War”:
In his 2009 acceptance speech for the Nobel Peace Prize, President Barack Obama declared, “Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. And even as we confront a vicious adversary that abides by no rules, I believe the United States of America must remain a standard bearer in the conduct of war.” By the time Obama accepted the award, one year into his presidency, he had ordered more drone strikes than George W. Bush had authorized during his two presidential terms.
The Bush administration detained and tortured suspected terrorists. The Obama administration has chosen to illegally assassinate them, often with the use of drones. The continued indefinite detention of men at Guantánamo belies Obama’s pledge two days after his first inauguration to close the prison camp there. However, Obama has added only one detainee to the Guantánamo roster. “This government has decided that instead of detaining members of al-Qaida [at Guantánamo] they are going to kill them,” according to John Bellinger, who formulated the Bush administration’s drone policy.
On “Terror Tuesdays,” Obama and John Brennan, Obama’s former counterterrorism adviser, now CIA director, go through the “kill list” to identify which individuals should be assassinated that week. The Obama administration has developed a creative method to count the civilian casualties from these assassinations. All military-age men killed in a drone strike zone are considered to be combatants “unless there is explicit intelligence posthumously proving them innocent.” Brennan falsely claimed in 2011 that no civilians had been killed in drone strikes in nearly a year.
Obama orders two different types of drone attacks: personality strikes that target “named, high-value terrorists,” and signature strikes that target training camps and “suspicious compounds in areas controlled by militants.” In the signature strikes, sometimes called “crowd killings,” the Obama administration often doesn’t even know who are they killing. “But,” write Jo Becker and Scott Shane in the New York Times, “some State Department officials have complained to the White House that the criteria used by the C.I.A. for identifying a terrorist ‘signature’ were too lax. The joke was that when the C.I.A. sees ‘three guys doing jumping jacks,’ the agency thinks it is a terrorist training camp, said one senior official. Men loading a truck with fertilizer could be bombmakers — but they might also be farmers, skeptics argued.”
Before taking the life of a person off the battlefield, the Due Process Clause of the U.S. Constitution requires the government to arrest a suspect, inform him of the charges against him, and provide him with a fair trial. But like his predecessor, Obama defines virtually the entire world as a battlefield, ostensibly obviating the necessity to provide due process before execution.
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The Bush administration took the position that neither the criminal law nor international humanitarian law – which comes from the Hague and Geneva Conventions and governs the conduct of war – protected the targets of the “War on Terror.” They existed in a legal “black hole.” Obama has apparently adopted the same position, although he has replaced the moniker “War on Terror” with “War on Al Qaeda.” But “there is not a distinct entity called Al Qaeda that provides a sound basis for defining and delimiting an authorized use of military force,” according to Paul Pillar, former deputy director of the CIA’s Counterterrorism Center.
Both administrations have justified their targeted killing policies with reference to the Authorization for the Use of Military Force (AUMF), which Congress passed a week after 9/11.
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This authorization is limited to groups and countries that supported the 9/11 attacks. Congress rejected the Bush administration’s request for open-ended military authority “to deter and preempt any future acts of terrorism or aggression against the United States.” But deterrence and preemption are exactly what Obama is trying to accomplish by sending robots to kill “suspected militants.”
Obama has extended his battlefield beyond Iraq and Afghanistan to Pakistan, Yemen Somalia and Libya, even though the United States is not at war with those countries. U.S. drones fly from allied bases in Saudi Arabia, Turkey, Italy, Qatar, the Philippines and the United Arab Emirates. Expanding into West Africa, the United States has built a major drone hub in Djibouti.
Armed drones are operated by “pilots” located thousands of miles from their targets. Before launching its payload, the drone hovers above the area. It emits a buzzing sound that terrorizes communities. “The drones were terrifying,” observed New York Times journalist David Rhode, who was captured by the Taliban in Afghanistan in 2008 and later escaped. “From the ground, it is impossible to determine who or what they are tracking as they circle overhead. The buzz of a distant propeller is a constant reminder of imminent death. Drones fire missiles that travel faster than the speed of sound. A drone’s victim never hears the missile that kills him.”
After the drone drops a bomb on its target, a second strike often bombs people rescuing the wounded from the first strike. And frequently, a third strike targets mourners at funerals for those felled by the prior strikes. This is called a “double tap,” although it is more accurately a “triple tap.” U.S. drones have killed children, rescuers, and funeral processions “on multiple occasions,” according to a report written by Micah Zenko for the Council on Foreign Relations (CFR).
Obama’s administration has killed at least as many people in targeted killings as died on 9/11. But of the estimated 3,000 people killed by drones, “the vast majority were neither al-Qaeda nor Taliban leaders,” CFR reported. “Instead, most were low-level, anonymous suspected militants who were predominantly engaged in insurgent or terrorist operations against their governments, rather than in active international terrorist plots.”
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Drones are Obama’s weapon of choice because, unlike piloted fighter aircraft, they don’t jeopardize the lives of U.S. pilots. There are claims that the use of drones results in fewer civilian casualties than manned bombers. However, a study based on classified military data, conducted by Larry Lewis from the Center for Naval Analyses and Sarah Holewinski of the Center for Civilians in Conflict, found that the use of drones in Afghanistan has caused 10 times more civilian deaths than manned fighter aircraft.
“In the United States, the dominant narrative about the use of drones in Pakistan is of a surgically precise and effective tool that makes the US safer by enabling ‘targeted killing’ of terrorists with minimal downsides or collateral impacts. This narrative is false,” according to the comprehensive report Living Under Drones issued by Stanford Law School and NYU Law School. Many killed by drones are civilians, or, as the administration says, “bug splat,” referring to the “collateral damage” estimate methodology the U.S. military and the CIA employ.
Targeted killing with drones is counterproductive. General Stanley McChrystal, architect of the U.S. counterinsurgency strategy in Afghanistan, declared that drones are “hated on a visceral level” and contribute to a “perception of American arrogance.” Kurt Volker, former U.S. ambassador to NATO, concurs. “Drone strikes . . . do not solve our terrorist problem,” he noted. “In fact, drone use may prolong it. Even though there is no immediate retaliation, in the long run the contributions to radicalization through drone use may put more American lives at risk.” Mullah Zabara, a southern tribal sheikh from Yemen, told Jeremy Scahill, “The US sees al Qaeda as terrorism, and we consider the drones terrorism. The drones are flying day and night, frightening women and children, disturbing sleeping people. This is terrorism.” The CFR reported a “strong correlation” in Yemen between stepped up targeted killings since December 2009 and “heightened anger toward the United States and sympathy with or allegiance to AQAP [Al Qaeda in the Arabian Peninsula].”
Drone strikes breed increased resentment against the United States and lead to the recruitment of more terrorists. “Drones have replaced Guantánamo as the recruiting tool of choice for militants,” according to Becker and Shane. They quoted Faisal Shahzad, who, while pleading guilty to trying to detonate a bomb in Times Square, told the judge, “When the drones hit, they don’t see children.”
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The Bush administration’s 2002 drone strike in Yemen that killed, among others, U.S. citizen Ahmed Hijazi, also known as Kamal Derwish, was the first publicly confirmed U.S. targeted killing outside a battlefield since President Gerald Ford signed a ban on political assassinations in 1976. “It means the rules of engagement have changed,” a former CIA official with knowledge about special operations told theLos Angeles Times after the strike in Yemen. “That would be the first time that they have started doing this kind of thing.”
It wouldn’t be the last. Scahill writes, “The secret war in Pakistan became largely a drone bombing campaign, described by CIA officers at the US Embassy in Islamabad as ‘boys with toys.'” By the end of Obama’s first year as president, he “and his new counterterrorism team would begin building the infrastructure for a formalized US assassination program,” Scahill added, with “an aggressive embrace of assassination as a centerpiece of US national security policy.”
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In his 2013 speech to the United Nations (UN) General Assembly, Obama stated, “Some may disagree, but I believe that America is exceptional – in part because we have shown a willingness, through the sacrifice of blood and treasure, to stand up not only for our own narrow self-interest, but for the interests of all.” But in addition to the U.S. soldiers killed in Iraq and Afghanistan, hundreds of thousands of people in those countries have been killed and untold numbers wounded.
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American exceptionalism also reared its head after the February 2013 leak of a Department of Justice (DoJ) White Paper that describes circumstances under which the President could order the targeted killing of U.S. citizens. There had been little public concern in the United States about drone strikes killing people in other countries. But when it was revealed that U.S. citizens might be targeted, Americas were outraged.
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It is this double standard that motivated Nobel Peace Prize winner Archbishop Desmond Tutu to pen a compelling letter to the editor of the New York Times, in which he asked, “Do the United States and its people really want to tell those of us who live in the rest of the world that our lives are not of the same value as yours?” The Archbishop elaborates on that observation in the Foreword to this collection.
In May 2013, as international criticism targeted Obama’s drone policy and the continued indefinite detention at Guantánamo where detainees were starving themselves to death and military guards were violently force-feeding them, the President delivered a speech. He explained that “the United States is at war with al Qaeda, the Taliban, and their associated forces,” without defining who those “associated forces” are. Although he defended his use of drones and targeted killing, Obama proclaimed, “America does not take strikes when we have the ability to capture individual terrorists – our preference is always to detain, interrogate and prosecute them.”
Obama referred to the killing of Osama bin Laden as exceptional because “capture, although our preference, was remote.” Yet it was clear when the U.S. soldiers arrived at bin Laden’s compound that the people there were unarmed and bin Laden could have been captured.
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The month before Obama gave his speech, McClatchy reported that the administration had been misrepresenting the types of groups and individuals it was targeting with drones in Afghanistan and Pakistan. Citing classified U.S. intelligence reports, the McClatchy piece said that contrary to the administration’s claims that it had deployed drones only against known senior leaders of al Qaida and allied groups, it had in fact targeted and killed hundreds of suspected low-level Afghan, Pakistani and “other” militants in scores of strikes in Pakistan. At times, the CIA killed people who only were suspected, associated with, or who probably belonged to militant groups.” Micah Zenko, author of the CFR report cited earlier, said that McClatchy’s findings indicate the administration is “misleading the public about the scope of who can legitimately be targeted.”
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In this interdisciplinary collection, human rights and political activists, policy analysts, lawyers and legal scholars, a philosopher, a journalist and a sociologist examine different aspects of the U.S. policy of targeted killing with drones and other methods. These contributors explore legality, morality and geopolitical considerations, and evaluate the impact on relations between the United States and the countries affected by targeted killings.
The book includes the documentation of civilian casualties by the leading non-governmental organization in this area; stories of civilians victimized by the drones; an analysis of the first U.S. targeted killing lawsuit by the lawyer who brought the case, as well as a discussion of the targeted killing cases in Israel by the director of The Public Committee Against Torture (PCATI) which filed one of the lawsuits; the domestic use of drones; and the immorality of drones using Just War principles.
International legal scholar Richard Falk explains in Chapter Two why weaponized drones pose a greater threat than nuclear weapons to international law and world order. He notes that nuclear weapons have not been used since 1945 except for deterrence and coercive diplomacy as the countries of the world have established regimes of constraint on their use through arms control agreements and nonproliferation. Drones, however, are unconstrained by any system of regulation. They will likely remain unregulated as “the logic of dirty wars” continues to drive U.S. national security policy.
In Chapter Three, policy analyst Phyllis Bennis describes assassination as central to U.S. war strategy due to the militarization of our foreign policy. She traces the program of assassination to the post-Vietnam era “Salvador option,” in which CIA and Special Forces developed assassination teams and death squads to avoid American casualties. Moving into the modern era, Bennis details how the war strategy shifted from counter-insurgency, with large numbers of U.S. troops, to counter-terrorism and targeted killing, using drones as the preferred weapon.
Chapter Four is an article published by journalist Jane Mayer in The New Yorker in 2009. This article was the first comprehensive exposé about the Obama administration’s escalation of drone use for targeted killing. It is also one of the earliest efforts at documenting civilian casualties from the use of drones. Mayer raises the legal, political, and tactical ramifications of drone warfare and asks troubling questions about possible unintended consequences of this new weapon.
In Chapter Five, sociology professor Tom Reifer examines America’s embrace of a global assassination program using the Joint Special Operations Command and the CIA, which he calls “a paramilitary arm of the President.” He focuses on the effects of drone strikes on persons and targeted communities, as well as the drone pilots themselves.
Political activist Medea Benjamin, in Chapter Six, humanizes the victims of lethal drone strikes, particularly in Pakistan and Yemen. She includes personal stories about some of the victims and their family members. Benjamin describes how the drones, in addition to killing many innocent people, terrorize entire populations and destroy the fabric of local communities.
Chapter Seven is a comprehensive report by Alice K. Ross, of the Bureau of Investigative Journalism, documenting civilian casualties of the drone strikes. She underlines the critical importance of publishing contemporaneous information on all casualties, civilian or militant, in a transparent, incident-by-incident manner – even where the information might be limited due to ongoing hostilities. Without such detail, Ross writes, it is impossible to effectively challenge casualty claims by officials and for victims of drone strikes to claim compensation.
The United States’ targeted killing through the use of drones and other methods violates international and U.S. law, human rights attorney Jeanne Mirer explains in Chapter Eight. Extrajudicial killing is not illegal in the context of a legally declared war on a battlefield. However, the United States wrongfully claims that “self-defense” gives it the right to execute anyone in any country, regardless of citizenship and regardless of the existence of a legal war. Mirer analyses how the United States is violating International Human Rights Law and International Humanitarian Law.
In Chapter Nine, Center for Constitutional Rights attorney Pardiss Kebriaei discusses the first legal challenge to the U.S. targeted killing program in Al-Aulaqi v. Obama. That case involved the Obama administration’s authorization of the targeted killing of a U.S. citizen in Yemen. She cites the imperative for accountability, including through judicial review, and discusses the obstacles constructed by the Obama administration that have effectively precluded judicial review thus far.
PCATI executive director Ishai Menuchin, in Chapter Ten, contrasts the discourse in Israel about the elimination of terrorists and preemptive action with the Palestinian discourse of “day-to-day acts of Israeli state-terror and repression.” He wonders how extrajudicial execution became official Israeli policy since Israel does not have the death penalty. Menuchin examines assassination petitions filed in the Israeli High Court of Justice, including the “Targeted Killing” case, PCATI v. Government of Israel, and he laments Israel’s lack of accountability.
In Chapter Eleven, philosopher John Kaag explains how drone warfare poses a serious challenge to Just War tradition and moral theory. He highlights the impact of drone use on the Just War requirements of proportionality and distinction, as well as on the definition of “collateral damage.” Kaag notes that the use of drone technology cannot be regulated by merely prudential concerns, but rather will turn on issues of legality and ethicality.
Legal scholar John Quigley analyzes in Chapter Twelve the impact of the policy of using lethal pilotless aircraft on relations between the United States and the countries in which the affected populations are located, in the context of a history of resentment against U.S. interventions and interference. He suggests that the policy redounds to the detriment of the United States by engendering resentment and the use of violence against the United States and its personnel. The chapter suggests that the Obama Administration is aware of these risks but continues its policy in spite of them.
In Chapter Thirteen, ACLU attorney Jay Stanley discusses policy issues surrounding the imminent arrival of domestic drones in U.S. airspace. The main concern is privacy. Stanley asks how the technology is likely to evolve, and how the First Amendment “right to photography” interacts with serious privacy issues implicated by drones. The national discourse about drone deployment has opened up a space for privacy activists and others to create a genuine public discussion of the issue before it is widely deployed.
Finally, in Chapter Fourteen, political activist Tom Hayden places the advent of the Drone Age into a historical context of U.S. military invasions and occupations. He discusses political and strategic considerations that animate the evolution of the military policies of President Obama, who is “in grave danger of leaving a new Imperial Presidency as his legacy.” Hayden advocates a transparent set of policies to rein in the use of drones and cyberwarfare, while protecting democracy.
Drones and targeted killing will not solve the problem of terrorism. “If you use the drone and the selected killings, and do nothing else on the other side, then you get rid of individuals. But the root causes are still there,” former Somali foreign minister, Ismail Mahmoud ‘Buubaa’ Hurre, told Scahill. “The root causes are not security. The root causes are political and economic.”
A Pentagon study conducted during the Bush administration concluded, “Muslims do not ‘hate our freedom,’ but rather, they hate our policies.” It identified “America, we ignore this admonition at our peril. Until we stop invading countries with Muslim populations, occupying their lands, torturing their people, and killing them with drones, we will never be safe from terrorism.”
It is my hope that this volume will provide information that can be marshalled to halt the illegal, immoral, unwise U.S. policy of assassination.
Copyright (2015) by Marjorie Cohn. Not to be reposted without permission of the publisher, Olive Branch Press.
Marjorie Cohn is a professor at Thomas Jefferson School of Law, a former president of the National Lawyers Guild, and deputy secretary general for scientific work of the International Association of Democratic Lawyers. Her books include The United States and Torture: Interrogation, Incarceration, and Abuse; Cowboy Republic: Six Ways the Bush Gang Has Defied the Law; and Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. She testified twice before Congress about the Bush administration torture policy.
