The leak of a 16-page “white paper” laying out the Obama administration’s legal justification for its drone war against terrorists—based on a still-unreleased memo from the Department of Justice on the September 2011 killing in Yemen of Anwar al-Awlaki, a U.S. citizen—will make for a more informed discussion of the U.S. campaign. It also helps answer some big questions about who in the government should run the program; what the scope of the attacks should be; and what alternatives President Obama might consider.
The U.S. is waging two different drone wars. One targets al-Qaeda and its allies in the Afghanistan theater, primarily in Pakistan. As estimated from news reports by the New America Foundation and the Long War Journal, there have been 350 or so of these strikes since 2004, killing about 2,500 people, including 150 to 300 civilians. They are carried out by the CIA. Although such strikes are officially covert, they are such a well-known secret that Obama felt free to discuss them last month in a Google+ “hangout.” The second drone war is being waged by the U.S. Department of Defense, which carries out strikes elsewhere, such as Yemen and Somalia. Operated by military professionals, trained in and bound by international and U.S. military law, this effort is much more appropriate.
Limiting the CIA’s role to intelligence sharing and putting the program under Title 10 of the U.S. Code, which lays out the role of the military, would increase congressional oversight and transparency while still allowing necessary secrecy.
Then there is the question of how targets are chosen. Here again there are two basic types of strikes: those against people on the government’s “kill list,” and so-called signature strikes, which target unknown individuals because ground intelligence or aerial surveillance shows they are aiding in an imminent terrorist operation. If critics of such strikes want to limit the number of mistaken attacks and civilian casualties, they should push for alternatives to drones.
If the goal is always to kill, that makes a drone strike all the more likely. The equation changes, however, if the goal is to capture and interrogate terrorists. If suspected terrorists can’t be brought into the domestic U.S., why is reopening the Guantanamo Bay prison to new detainees worse than killing them?
The U.S. must also reckon with the inevitability of rival powers and nonstate actors developing their own drones. The U.S. has an interest in leading an effort to codify the use of drones in the laws of war, as it did with nuclear weapons in the Cold War. Otherwise, reflexively anti-American international bodies such as the United Nations Human Rights Council, which announced a nine-month investigation into the drone campaign, will step into the vacuum.