The secret legality of drone strikes

US drone strikes are the new Guantanamo — a focal point for all those railing against America and the excesses of its War on Terror efforts to counter violent extremist (CVE). The arguments against drone strikes against suspected terrorists will be familiar to the readers of this blog and need scarcely be repeated: the collateral damage ensures radicalisation (and thus more terrorism), the infringement on other countries’ sovereignty equally so, it is a method in search of a strategy and the strikes are conducted arbitrarily (signature strikes) and on a weak legal basis (‘imminence’ is seen in the mere existence of the target, which means strikes are justified by their own occurrence).

Against this list of arguments, some of which have far more merit than others, a number of studies, based on interviews with the populations where most drone strikes take place, provide an antithetical image. In Foreign Affairs last year, Christopher Swift demonstrated that among those he had interviewed while doing field work in Yemen, most accepted the pragmatism of the drone strikes and didn’t mind them so much so long as they were discriminate (which, it appears, is how they were increasingly seen).

In the spring of 2009, the Aryana Institute for Regional Research and Advocacy conducted similar field-work in FATA, Pakistan, where they found — again — a surprising level of acceptance for the drone programme. Those interviewed were split on whether the drones were accurate, but a majority believed them not to cause anti-Americanism and that they were instead damaging to the militants among their midst. As in Yemen, the main issue was that it was a foreigner doing all of this and that the local government should play a bigger role (we have since learned that the Pakistani government did play a fairly large role, though covertly, in the FATA drone programme).

The latest installment in this discussion is the legal case for the drone strikes. Seeking to change the perception of the U.S. government as a flouter of legal norms, the Obama administration — which has of course massively expanded the use of drones — has for some years been engaged in a process of explaining who can get hit and who cannot. Most of that debate occurred internally but we got a glimpse of the legal case when a leaked memo from the Justice Department appeared online. Much centred on the notion of ‘imminence’; argumentation that critics faulted for misinterpreting an age-old just-war principle to justify basically anything. What’s worse, this would apply not just to stinking foreigners (like me) but to actual Americans too.

This is the background for the confirmation of John Brennan as CIA director. One of the hurdles in the way of his confirmation was precisely the legal standard used by the administration to settle who gets killed when. The administration sought to meet its critics half way, as described in today’s New York Times:

On Tuesday morning, the committee’s Democratic chairwoman, Senator Dianne Feinstein of California, said the White House had agreed to give the committee access to all Justice Department legal opinions on the targeted killing of Americans. Two such opinions were briefly shared with senators at the time of Mr. Brennan’s confirmation hearing last month; officials said the remaining two were made available on Tuesday.
But the administration withheld the opinions governing strikes targeting non-Americans that the committee has also sought, arguing that they are confidential legal advice to the president. As a result, the detailed legal rules for a vast majority of drone strikes, including so-called signature strikes aimed at suspected militants whose names are unknown to the people targeting them, remain secret even from the Congressional intelligence committees.
But Ms. Feinstein complained after the vote that the committee still had not been allowed to retain the memos for study and reference. “They brought them for review, and they took them away,” she told reporters. “Committee staff should be able to look at them and take notes.” Without a copy to refer to, she said, “It’s easy to forget the particulars.”

Does the administration appreciate how this all looks? Though there are no doubt many good reasons for treating the legal opinions as top secret, it does rather undermine the point of going through legal channels to begin with. What the administration needs — and what the drone programme needs, to be sustainable — is greater buy-in: among its partners internationally and its own people here in the United States. Otherwise, the benefits of the programme may be outweighed, or at least compromised, by its symbolism and political payload. The point would be to promote the accounts of local acceptance highlighted above and to seek ways of making the drone strike equally acceptable among other audiences.

Such an effort would require public diplomacy, some changes in policy (greater focus on joint efforts, or efforts presented as joint), but also greater transparency. Rather than keeping the legal justification in the shadows and letting conspiracy theorists run wild, show conviction in your actions, make the case publicly, in a way that will persuade. The hush-hush and sneaking around (see the comments by Feinstein above) makes it all look very bad, probably worse than it actually is. And if a compelling case cannot be made so that Americans and others are swayed, perhaps there is a need to reconsider the net gain of this programme, at least in its current form.

Originally published at on March 6, 2013.

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