The problematic use of “drones” to prosecute the U.S. war on terror is very much in the news again. On February 7, during a hearing that was repeatedly interrupted by protesters, senators questioned John Brennan, President Obama’s CIA director-designate, about the administration’s heavy reliance on “targeted killings” by unmanned aircraft. A prominent line of questioning by senators concerned the government’s exercise of due process under U.S. law, or the lack thereof, when targeting American citizens overseas. Exhibit A: the CIA’s takedown of Anwar al-Awlaki, a Yemeni-American cleric, in September 2011.
“Now that the drone program is so public…people don't know what this one citizen was doing,” noted Sen. Dianne Feinstein, the committee chairman, in one exchange with Brennan. “This man was not upstanding by a longshot. I’ve read enough to know that he was a real problem.” The circumspect Brennan acknowledged that a “relationship” existed between al-Awlaki and the foiled attempt by al-Qaeda terrorists in October 2010 to destroy cargo airplanes using plastic explosives hidden in printer cartridges. Sen. Ron Wyden asked Brennan if the President should offer a U.S. citizen the opportunity to surrender before taking him out. “Any American who joins al-Qaeda will know full well that [he has] joined an organization that is at war with the United States, and the U.S. will do everything possible to destroy that organization,” Brennan said. “They can surrender any time and turn themselves in.”
Brennan’s Senate confirmation hearing followed the exquisitely timed discovery three days earlier of a confidential Justice Department “white paper” that purports to set forth a legal framework for using lethal force in a foreign country against a U.S. citizen identified as working for al-Qaeda. The American Civil Liberties Union website links to a copy of the white paper, which has “NBC News” stamped throughout, lest we overlook which network landed this scoop. The Justice document echoes Brennan’s comments. “[I]n defined circumstances, a targeted killing of a U.S. citizen who has joined al-Qaeda or its associated forces would be lawful under U.S. and international law,” the white paper states. “ … Were the target of a lethal operation a U.S. citizen who may have rights under the due process clause and the Fourth Amendment, that individual’s citizenship would not immunize him from a lethal operation.”
The news cascade in the U.S. overshadowed a January 24 press conference in London at which Ben Emmerson, a British human rights lawyer and the United Nations’ special rapporteur for counterterrorism and human rights, announced the start of a formal inquiry into civilian casualties resulting from UAV strikes. In an opening statement, Emmerson said the legal theory for targeted killings annunciated in the U.S., that Western democracies are engaged in a global conflict against a stateless enemy, “is heavily disputed by the majority of international lawyers outside the United States of America.”
Emmerson said his team of experts will focus on 25 case studies from Pakistan, Yemen, Somalia, Afghanistan and Palestine to determine whether there is “plausible” evidence of unlawful killings. He has been quoted in press reports as saying that he will follow the evidence wherever it takes him, which raises the prospect that President Obama, a Nobel Peace Prize recipient, could also be accused of being a war criminal. Emmerson plans to submit his report to the UN General Assembly in October.
None of this bodes well for a domestic UAV market in the U.S. that is clambering to get off the ground. The reputation of unmanned aircraft for damnable deeds in faraway places precedes their arrival in domestic airspace for peaceable purposes. The cover of the February 11 issue of Time magazine features a “photo illustration” of a wasp-like General Atomics Predator hanging menacingly over a residential dwelling, suggesting that now we all face the possibility of being visited by a Hellfire missile. “Drones are an enormously powerful, disruptive technology that rewrites rules wherever it goes,” Lev Grossman wrote in the cover story. “Now the drones are coming home to roost.”