{"id":590,"date":"2009-12-02T10:05:32","date_gmt":"2009-12-02T17:05:32","guid":{"rendered":"http:\/\/www.harvardnsj.com\/?p=590"},"modified":"2009-12-02T10:05:32","modified_gmt":"2009-12-02T17:05:32","slug":"predator-strikes-raise-novel-moral-legal-issues","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2009\/12\/predator-strikes-raise-novel-moral-legal-issues\/","title":{"rendered":"Predator Strikes Raise Novel Moral, Legal Issues"},"content":{"rendered":"

By Mat Trachok, NSJ Staff Editor –
\n<\/strong><\/p>\n

In a recent article in The New Yorker<\/em><\/a>, Jane Mayer considers the legal and moral implications of the Central Intelligence Agency’s covert drone program in the Federally Administered Tribal Areas (FATA) of Pakistan.\u00a0 Under the Bush Administration, the CIA began using unmanned drone aircraft, most often Predators<\/a> and more recently Reapers<\/a>, to conduct targeted killings of terrorism suspects.\u00a0 According to Mayer, President Obama has made very few changes to the program.\u00a0 Indeed, the president has authorized forty-one strikes since taking office\u2014as many as former President Bush authorized during his last three years in office.<\/p>\n

Given plans to commission hundreds of new drones, it appears their use as part of the War on Terrorism will only increase.\u00a0 Moreover, Vice President Biden has argued that the United States should focus less on counter-insurgency in Afghanistan and more on using Predators to eliminate al-Qaeda leaders; the recently announced decision by President Obama to pursue a more comprehensive counter-insurgency strategy, however, likely will not lead to a scaling back of these plans or of the program more generally.<\/p>\n

The costs of the drone program are numerous, though not only in dollar terms.\u00a0 According to one expert quoted in the article, using what are essentially robots to fight for us creates the perception that war is costless.\u00a0 Soldiers are not put in harm\u2019s way and the victims remain faceless.\u00a0 As reported in numerous press outlets, Predator attacks, however, have led to the death of innocent bystanders, including children.\u00a0 In addition, Predator pilots suffer from combat stress just as much as\u2014and perhaps more than\u2014pilots sitting in cockpits.\u00a0 The perception that war is costless is itself a cost of the drone program, as it threatens to undermine political checks on what could become an endless war.<\/p>\n

There are also policy costs.\u00a0 First, terrorists killed by Predators cannot be mined for intelligence.\u00a0 Second, and perhaps more controversial, is the notion that the targeted killing program amounts to assassination, which is forbidden by E.O. 12333, which governs the activities of the Intelligence Community.\u00a0 Indeed, the use of drones in this manner may begin to erode the international norm against assassination.\u00a0 By engaging in strikes that some believe to be assassination, the United States threatens to undermine its stance that it occupies the moral high ground in this war; the Obama Administration’s use of the program may also endanger the goodwill it has engendered abroad, especially in Pakistan.<\/p>\n

Despite the costs involved, many believe that the drone program is the United States\u2019 most effective weapon against terrorist organizations like al-Qaeda.\u00a0 The drones have killed more than half of the CIA\u2019s most wanted targets.\u00a0 Fear of Predators has created debilitating suspicion within terrorist organizations and has driven terrorists to divert resources from planning attacks to operating more cautiously.<\/p>\n

It may be that the benefits of the drone program outweigh the costs.\u00a0 The problem, according to Mayer, is that there has been no public debate about its cost-effectiveness.\u00a0 The CIA conducts the program secretly and it is unclear what code and methodology\u2014if any\u2014by which it operates.\u00a0 This raises serious accountability questions.<\/p>\n

At its conception, the drone program also raised novel legal questions.\u00a0 According to Mayer, the United States initially openly opposed extrajudicial killings, which it equated with assassination, which originally was banned by a 1976 executive order signed by former President Gerald Ford.\u00a0 However, after 9\/11, former President Bush authorized the CIA to kill members of al-Qaeda anywhere in the world, a policy that Congress endorsed with the Authorization for Use of Military Force.\u00a0 The Bush Administration argued that the assassination program was legal, as it was an act of anticipatory self-defense, and because terrorism is not a crime, but an act of war.\u00a0 Therefore, the administration argued, it was no longer required to give terrorists due process.<\/p>\n

According to Mayer, to be sanctioned under international law, a Predator killing must be (1) a military necessity that is (2) directed at a terrorist group engaging in armed conflict, (3) proportionate to the threat, and (4) permitted by the nation in which the assassination is to take place.\u00a0 Many lawyers believe the drone program in Pakistan has thus far met these international law requirements.\u00a0 However, there is concern that the United States is broadening the definition of who may be an acceptable high-value target.\u00a0 There is also concern that the United States has given Pakistan control over choosing many of the program\u2019s recent targets to gain the support of the Pakistani political elite.\u00a0 It is unclear as to whether these trends threaten to make the program illegal under international law.<\/p>\n

Whether one considers the drone program to be immoral, illegal, bad policy, or some combination of the above, it is unlikely to end any time soon.\u00a0 According to one former CIA officer, the Predator attacks are the only tool the Obama Administration has to directly disrupt al-Qaeda\u2019s operations in Pakistan.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Mat Trachok, NSJ Staff Editor – In a recent article in The New Yorker, Jane Mayer considers the legal and moral implications of the Central Intelligence Agency’s covert drone program in the Federally Administered Tribal Areas (FATA) of Pakistan.\u00a0 Under the Bush Administration, the CIA began using unmanned drone aircraft, most often Predators and more recently Reapers, to conduct targeted killings of terrorism suspects.\u00a0 According to Mayer, President Obama has made very few changes to the program.\u00a0 Indeed, the president has authorized forty-one strikes since taking office\u2014as many as former President Bush authorized during his last three years in 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