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Will Congress take on drones in 2013?

January 11, 2013

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Since President Obama took office in 2009, his administration has dramatically increased the use of unmanned armed drones throughout the Middle East and Africa.  The administration has overseen more than 300 drones strikes, with more than 2,500 killed by the CIA and the military. Thus far, Congress has not engaged on an in-depth level on important questions surrounding the reliance on this technology and the overarching policy governing its use.

The Obama administration reportedly began assembling parameters for the use of drones in the pursuit of suspected terrorists, but the proposed regulations have not yet been made public. Last year, President Obama stated, “One of the things we’ve got to do is put a legal architecture in place, and we need congressional help in order to do that, to make sure that not only am I reined in but any president’s reined in terms of some of the decisions that we’re making.”

The 113th Congress should heed this call and exercise greater oversight over drone policy. Issues to address include:

Defining the “battlefield” and authorization for the use of force

As Al-Qaeda’s presence continues to wane, the already tenuous interpretation of the authorization for the use of military force in 2001 will not provide strong justification for drone attacks like those that have occurred in Afghanistan, Pakistan, Somalia and Yemen. As former Defense Department General Counsel Jeh Johnson argued, the US should “be able to say … that our efforts should no longer be considered an armed conflict against al-Qaida and its affiliates,” and that responsibility for pursuing Al-Qaeda should shift to law enforcement agencies.

This is a critical time for Congress to assert its role in oversight over military force and standards for expanding or continuing the drone war outside of the framework of armed conflict.

Civilian casualties and ensuing blowback

It is very difficult to obtain accurate numbers of civilian casualties in drone strikes. This is exacerbated by the CIA policy of counting military-age males as militants unless they have specific evidence pointing to their innocence. US policy of using “secondary strikes,” attacking rescuers who come to the aid of victims of initial strikes, puts civilians at even greater risk.

An in-depth report by Stanford and NYU Law Schools disputes the characterization of drones as a precise, targeted tool with minimal impact on innocent civilians. The study notes that despite US claims downplaying civilian casualties, the best available data indicate that drone strikes in just Pakistan killed 474-881 civilians and injured 1,228-1,362. The report also highlights significant harm other than injury and death, including anxiety and psychological trauma.

Yemen expert Gregory Johnsen notes, “Testimonies from Qaeda fighters and interviews I and local journalists have conducted across Yemen attest to the centrality of civilian casualties in explaining Al Qaeda’s rapid growth there. The United States is killing women, children and members of key tribes. ‘Each time they kill a tribesman, they create more fighters for Al Qaeda,’ one Yemeni explained to me over tea in Sana, the capital, last month. Another told CNN, after a failed strike, ‘I would not be surprised if a hundred tribesmen joined Al Qaeda as a result of the latest drone mistake.’” Johnsen points out that Al Qaeda in the Arabian Peninsula has more than tripled in Yemen since the US started bombing the country in 2009.

Congress should push for greater transparency and more accurate accounting of civilian casualties, and for the end of secondary strikes. A full accounting of the impact of US drone strikes will better allow Congress and the public to weigh any potential benefits of the use of drones against their negative impacts.

The use of so-called “signature strikes”

In 2012, the Obama administration approved the use of so-called “signature strikes,” allowing the targeting of people whose identities are unknown. Targeting based on patterns of behavior rather than evidence of an imminent threat to US interests sets a dangerous precedent, increases the likelihood of blowback, and vastly increases the risk of killing innocent civilians. Congress should push for greater transparency in the use of signature strikes and ultimately to end their use.

Targeted assassination of US citizens

The Obama administration used dubious legal justification to kill a US citizen, Anwar Al-Awlaki, in Yemen. The threat Al-Awlaki posed, as well as his prominence within Al-Qaeda, has been called into question by experts on the region. The administration has resisted calls for greater transparency in this case and implications for future use of force. Other American citizens, including Awlaki’s 16-year-old son, have been killed in drone strikes in which they were not the intended targets.

President Obama has an unreleased list of targets for killing and capture that reportedly includes additional Americans, as well as targets as young as teenagers. Congress must demand greater transparency around targeting and rein in executive power to kill targets that could be pursued by other means, or may not pose an imminent threat to the US, including American citizens.

Precedent setting and future proliferation of drone technology

As with any technology, the United States will not maintain a monopoly on the use of armed drones. The New America Foundation cites 70 countries that currently have some kind of drone. Examining our standards for use of drones and setting specific parameters will become even more critical as we set a precedent for international drone use.

As Human Rights Watch points out, “Because the US treats many of the most important constraints on the use of force as matters of discretionary prudence rather than legal requirements, the US approach would not forbid the Russians to target an alleged Chechen militant in New York, or the Chinese a Uighur separatist in Washington, DC, if they said they were at war with these groups and the US didn’t apprehend them. That is a deeply troublesome precedent to set.”

Congress should push for clear, public standards that can contribute to an international conversation about global standards for the use of drones.

Transparency around standards for targeting and impact of drone strikes

The ability to address many of the above issues is predicated on greater transparency around drone policy. As counterterrorism adviser John Brennan has noted, one possibility to aid in this is moving drone strikes to the Pentagon, which has stricter oversight and disclosure rules. This would also allow the CIA to refocus on intelligence gathering.

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