The Obama administration recently acknowledged that a CIA drone strike in January, aimed at an al-Qaeda compound in Pakistan, accidentally killed two hostages, including a kidnapped American. We asked Director of the Ethics, Peace, and Global Affairs program Jeffrey Bachman, who writes frequently about the U.S. drone program, for some background:
Q: President Obama said the operation was “fully consistent with the guidelines” for counterterrorism strikes against al-Qaeda. Are the current guidelines sufficient to avoid civilian casualties?
A: This is a more complex question than it might appear to be on the surface. This is because there are two sets relevant guidelines -- those established by President Obama and his administration and those established by international law.
In terms of the President’s guidelines, it depends on which guidelines were applied. In May 2013, President Obama gave a speech at the National Defense University during which he said that “before any strike is taken, there must be near-certainty that no civilians will be killed or injured -- the highest standard we can set.” However, it was recently reported that President Obama had secretly exempted strikes in Pakistan from the above limitations. It has also been reported that the strike in question was a signature strike. Signature strikes -- strikes launched against suspected militants based only on classified “signatures” that include certain behaviors, patterns of life, and physical appearance -- have resulted in large numbers of civilian casualties. Further, the Obama administration apparently counts all military-age males killed in drone strikes as legitimate targets. Therefore, when taking the above together, I do not think it can be said that the current guidelines are sufficient.
In terms of international law, the current guidelines are unequivocally insufficient if we apply human rights law to drone strikes outside of Afghanistan. Under human rights law, lethal force would only be justified if the individual targeted posed an immediate or imminent threat to those attempting to detain the individual or if the individual posed such a threat to others. Therefore, in situations where those limitations were not met, every use of lethal force by the Obama administration in Pakistan would violate the prohibition against extrajudicial killings.
Q: The CIA has been conducting drone strikes in Pakistan for more than a decade under a program authorized by President George W. Bush and then expanded by Obama (although the number of drone strikes in Pakistan has declined since 2010). Why has the Obama administration relied so heavily on drone strikes?
A: It depends on what one wants to believe. Some have made the case that the indefinite detention and systematic torture perpetrated under the Bush administration at Guantanamo Bay, as well as President Obama’s pledge to close the prison, led the President to adopt a preference for killing suspects rather than capturing them. I think there are also other reasons. As was seen during the intervention in Libya, clearly President Obama believes Congress has little oversight regarding the use of drones, even when they are operated by the military. President Obama essentially made the case that because drones do not physically put members of the military in harm’s way, their use does not equate to direct participation in hostilities.
Further, drones have been used in ways where conventional military tactics would not be used. Often when drones are criticized, some come to their defense by arguing that it’s better to use drones than to deploy conventional air force or boots on the ground. However, one should ask whether the United States would be involved militarily at all in Pakistan if it needed to rely on its conventional air force or boots on the ground. If the United States would not, why is it acceptable that it is using drones?
Q: Drone strikes are a signature tactic of the Obama presidency. Will the new disclosure cause the administration to curtail or scale back the program?
A: If the disclosure does lead to a scaling back of the program, it will likely only be temporary. We have previously seen a scaling back in Pakistan after numerous reports from UN Special Rapporteurs and human rights NGOs raised questions about whether individual drone strikes had violated international humanitarian law, and whether some of these individual strikes reached the level of war crimes. However, we also saw an increase in drone strikes in Yemen.
What we need is greater transparency and an independent criminal investigation. There is no doubt at this point that there is enough evidence, enough known, to warrant such an investigation. This, of course, should not be interpreted as passing judgment but rather as an objective recognition that drone strikes have caused significant physical and psychological harm to those living in areas where drones are typically used.
Follow Professor Bachman on Twitter @jeff_bachman. For media requests, please call J. Paul Johnson at 202-885-5943.