Drones and the law

The Economist

America’s attacks on suspected terrorists should be more closely monitored

THE killing in Yemen of Anwar al-Awlaki and three al-Qaeda associates by a drone on September 30th has caused far more fuss in America than previous drone attacks. The reason is that al-Awlaki and one of his fellows were American citizens. Few will mourn al-Awlaki’s passing. But such apparently extra-judicial executions provoke three broad questions. Are drone strikes compatible with the laws of war? Was this killing legal? And, whatever the legality, is this system of meting out justice compatible with America’s longer-term interests? Our answers are yes, maybe and no.

The use of drones has increased dramatically, especially under Barack Obama. Many people find the computer-games aspect of what the Pentagon likes to call “Unmanned Aerial Systems” creepy, but drones are much better than manned aircraft at hunting fleeting targets. They have the endurance to loiter patiently, so their remote pilots can pick the moment to release their missiles when there is both the greatest chance of success and the least risk to innocent bystanders.

Moreover, as this newspaper has argued before, armed drones do not undermine the rules of war. Ethical worries may mount in the future, especially if the armed forces ask for permission to give their machines greater autonomy. But for the moment they remain conventional weapons, with humans subject to the conventional tests that their action be discriminate and proportionate. The remote-pilot in, say, Nevada who pushed the button that killed al-Awlaki is as answerable for his actions as the pilot in the cockpit of a fast jet; and so are the drone pilot’s commanders—right up to Mr Obama himself.

In Pakistan, drone strikes are conducted to support a counter-insurgency operation. Al-Awlaki was killed in Yemen, not in a war zone. The president’s defenders claim that strikes against al-Qaeda and Taliban fighters are legal under the September 2001 Authorisation to Use Military Force Act, which allows Mr Obama to employ “all necessary and appropriate force” against any country, organisation or person involved in the September 11th attacks or “to prevent future acts of international terrorism”. They add that killing a man who is plotting to kill Americans is a legitimate act of self-defence, given that al-Awlaki was in a country that was unable to act against him.

A time to reflect

From this perspective, America has a prima facie case that it acted legally. But that argument clearly needs to be tested. It is not just that international law, which surely applies in this case, is less generous towards targeted assassination. There are questions to be asked even under American law. What precisely, for instance, were the grounds for killing the other American jihadist, a website editor against whom the evidence seems less definitive? More information is needed. And is the president’s right to place an individual on a “kill or capture list” greater than that individual’s constitutional right to due process? The Supreme Court should look at this rapidly.

Finally there is the impact on America’s broader aims. Just as Guantánamo was against America’s interests though judged legal by some American courts, so targeted assassination may cause more problems than it solves. Although drones have decimated al-Qaeda, they have also helped to destabilise Pakistan, a nuclear-armed country of 190m Muslims. Nobody wants to make America’s “long war” even longer.

Two things would make America’s conduct somewhat less controversial. First, all drone killings should be carried out by the armed forces, not the CIA: they must be part of the conventional chain of command. And second, there should be some system of formal judicial review to determine whether the evidence against someone is sufficiently strong to make that person a target for assassination. One American commentator, Harlan Ullman, has suggested using the secret courts that meet to authorise domestic surveillance as a model.

America has a potent new weapon. Now it needs to adapt it to its principles.