The Drone War May be Popular in the U.S. AND Illegal

Fordham Law in Huffington Post, September 26, 2012

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At a debate at Fordham Law School Monday night, former Bush administration lawyer and Harvard Law professor Jack Goldsmith said that the United States' drone war "is actually not controversial" because the American public strongly supports it.

As you might imagine, the U.S. drone war is much less popular in Pakistan.

Why should we care? Because that could create some serious problems for the United States and its "war on terror."

As a new NYU and Stanford Law School report points out, the vast majority of those living in the regions where drones hover above their head threatening to drop bombs at any moment are appalled by the CIA's remote-controlled killing campaign. And even while some Pakistanis appreciate the U.S. effort to eradicate extremists in their midst, 97 percent say the U.S. drones are bad policy.

As the Wall Street Journal reported Wednesday, it's not clear whether Pakistan has consented to the U.S. actions in their airspace, which also raises the question of whether the U.S. has legal authority to act there.

Similar concerns have emerged in Yemen.

This might not matter to many Americans, who see the drone war as essentially cost-free. But the terrorist threat is coming from Muslim countries with growing anti-U.S. sentiment, as recent protests in Pakistan and Yemen demonstrate. It's time for the United States to rethink what it's doing in that part of the world.

For example, are we at war in Yemen?

The U.S. government won't say. Although it's well known the U.S. government has used drones to bomb there since 2001, killing up to 1,026 people, according to the UK-based Bureau of Investigative Journalism, U.S. officials have never really explained why. A series of speeches from administration officials over the last year have assured the American public that we needn't worry, it's all perfectly legal, either because the U.S. is in an armed conflict in Yemen or because it's acting in self-defense. But government officials have never explained how three failed attempts by an al Qaeda affiliate in Yemen to attack targets in the United States rises to the level of a war. Nor will they explain why hundreds or possibly over 1,000 people the U.S. has killed there were targeted.

Targeted killings abroad may be justified, whether done by drone or otherwise. Under international law, the U.S. government can kill members of enemy armed forces it's at war with, or because the individual targeted poses an imminent threat to American lives. But a growing number of both journalistic and academic reports suggest the U.S. drone program is targeting far more broadly than that.

And the consequences are serious. As a Pakistani photojournalist told the NYU/Stanford researchers: "When people are out there picking up body parts after a drone strike, it would be very easy to convince those people to fight against America."

In Yemen, al Qaeda affiliates have grown rapidly as the U.S. has stepped up its drone program. As Yemeni activist Ibrahim Mothana writes in the New York Times:

    Al Qaeda in the Arabian Peninsula had just a few hundred members in 2009, and controlled no territory. Today it has, along with Ansar al-Sharia, at least a thousand members and substantial operational spaces in Abyan and Shabwa, in addition to a presence in Mareb, Rada, Hadramout and other regions of Yemen.

It's time to start challenging the myth of the cost-free "surgical" drone strikes. Goldsmith insisted the other evening at Fordham that they allow U.S. bombing to be "more precise than it's ever been before." Perhaps, but it's still illegal (and unwise) to bomb a country if we're not in a war there and the target doesn't present an imminent threat to the United States.

U.S. officials insist every strike meets one of those criteria. But that's just not plausible. As Micah Zenko, who's been closely tracking the drone war at the Council on Foreign Relations told Noach Shachtman at Wired:

    The claim that the 3,000+ people killed in roughly 375 non-battlefield targeted killings were all engaged in actual operational plots against the U.S. defies any understanding of the scope of what America has been doing for the past ten years.

It's also a fiction to call the strikes "surgical."

You don't do surgery with bombs. Missiles fired from drones hovering high in the sky destroy much more than just the intended individual target. The NYU/Stanford report notes that the "blast radius from a Hellfire missile can extend anywhere from 15-20 meters; shrapnel may also be projected significant distances from the blast."

    The missiles fired from drones kill or injure in several ways, including through incineration, shrapnel, and the release of powerful blast waves capable of crushing internal organs. Those who do survive drone strikes often suffer disfiguring burns and shrapnel wounds, limb amputations, as well as vision and hearing loss.

In Yemen, U.S. drones have reportedly killed four U.S. citizens. Only one of them, Anwar al-Awlaki, was an intended target. Three U.S. citizens -- including Awlaki's 16-year-old son -- were "collateral damage."

Indeed, although the United States says it's targeting only high-level al Qaeda leaders, studies show that's not most of who's being killed. (A New America Foundation study found only two percent are high-level "militants;" a Brookings Institute study concluded about 10 civilians are killed for every "mid and high ranking" terrorist leader.)

Recent protests against the U.S. government in Pakistan, Yemen and elsewhere were sadly sparked by a stupid anti-Muslim video. But they reflect a much deeper antagonism toward the United States, which is viewed as meddling in the Middle East and North Africa and trampling on Muslim values in the process. The United States' covert killing campaigns there aren't helping.

The United States needs to show that we all share at least one very important value: the sanctity of human life. If the Obama administration believes killing Muslims in Pakistan, Yemen, Somalia and elsewhere via remote-controlled drones is truly necessary to protect the U.S. homeland, then it needs to do a far better job of explaining why.