May 3, 12:37 PM, 2010
Dean Harold Koh recently offered a spirited defense of the Obama Administration’s heavy reliance on predator drones in the course of speech at the American Society of International Law. “There is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict,” he said. “Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.” Koh’s legal analysis is certainly correct as a matter of traditional law-of-war doctrine, particularly as understood in the United States. Moreover, he’s to be congratulated for directly addressing the legal questions surrounding drone warfare. The U.S. government has been quiet on this topic for too long, apparently as part of a strategy to keep the use of drones secret. But drone warfare is America’s worst-kept secret. The use of drones is too public, too obvious, and too essential a part of the current military effort to justify the policy silence. In fact, it’s time for a more rigorous debate about drones and the issues they raise.
While I don’t disagree with any of Koh’s comments on drones, I am concerned that he goes after straw men and neglects the big legal policy issues I see. In my view, there are two major problems with Obama-era drone warfare, which in general looks like Bush-era drone warfare on steroids.
First, as applied on the battlefield along the historic Durand Line, the current campaign can’t be reconciled with the agreed premises for the separation of military and intelligence community activities in the National Security Act of 1947. That marked the launching point for the CIA, and it proceeded from the recognition that the agency should be an essentially civilian operation. It would have the right to use lethal force in certain settings, of course, and it would even have limited paramilitary capabilities, but its essential function would be intelligence gathering and analysis, and it would be distinguished from military operations, which would be in the hands of the Department of Defense. The current drone-warfare program marks the first time in U.S. history that a state-of-the-art, cutting-edge weapons system has been placed in the hands of the CIA, marking the continued evolution of the CIA as a paramilitary force with advanced tactical weaponry. Moreover, this occurred without the sort of rigorous policy discussion involving Congress and the entire national-security community that should have occurred.
There are two further aggravating considerations. The first is that the claims of secrecy surrounding these operations are risible. For all its problems, Pakistan is a democratic state with an active press. You cannot operate a program that rains death from the sky in such an environment without detection; it’s simply too public. Moreover, the drone wars are attracting media attention around the world precisely because they are viewed as the harbinger of a new kind of warfare. There is an entirely justifiable sense that we are watching the future of warfare unfold in the skies over the Afghanistan-Pakistan border area. Keeping the rationale and rules for this program in the dark is therefore a self-defeating proposition.
remainder in full:
http://www.harpers.org/archive/2010/05/hbc-90006980
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