Professor of Law Amos Guiora discusses when drone strikes are morally and legally justifiable and how U.S. drone policy gets it wrong.
Amos Guiora is a Professor at the S.J. Quinney College of Law at the the University of Utah. He received his J.D. at the Case Western Reserve University School of Law and served for 19 years as a Lieutenant Colonel in the Israeli Defense Forces (IDF). He writes extensively on issues of terrorism, national security, and the use of drone strikes. His most recent book argues for a criteria-based decision-making process for targeted killing.
Do your views on the acceptability of drone strikes change when the strikes occur on American soil? When do you believe that the Obama Administration’s policy of allowing drone strikes on U.S. citizens could be beneficial?
If the Obama Administration’s policy is truly as articulated in the recently-released Department of Justice (DOJ) White Paper, then I find the policy deeply distressing and highly problematic because of its incredibly broad definition of imminence with respect to both Americans and non-Americans. It opens the door extremely broadly and raises important questions regarding how a legitimate target is defined, which I think significantly contributes to the all-but-inevitability of collateral damage. The DOJ White Paper talks about strikes being used against “senior operational leaders” of Al Qaeda, but I have no idea what that term means. I see no definition of that phrase; it is just a term, jargon, a mantra. I was part of targeted killing decisions when serving in the IDF, so I understand the danger of using such incredibly loose terminology. If you believe in the rule of law, if you believe in morality in armed conflict, and if you believe in policy effectiveness, then I would suggest that the DOJ White Paper fails on all three levels.
In respect to the Administration’s decision to target U.S. citizens, I think one has to be extremely careful. A U.S. citizen who has “gone to the other side” and joined Al Qaeda, the Taliban, Hamas, or some other group, has from my perspective lost the rights and privileges that come from being a U.S. citizen and should be treated like any other suspected terrorist. So if a non-U.S. citizen can be the target of a drone then a U.S. citizen who is a member of a terrorist group can be targeted as well. But certainly not in accordance with the DOJ White Paper, which establishes a paradigm that just does not work.
You believe that targeted killing should be under the strict bounds of self-defense as defined by international law, but how could international laws define strikes as “self-defense” if they occur in a separate sovereign nation like Pakistan?
Article 51 of the UN Charter affirms a state’s right to engage in self-defense “if an armed attack occurs.” But the reality is that no nation-state waits to be attacked when the attack can be prevented, except for specific tactical reasons. Therefore, I believe states have the right to engage in self-defense if an attack is imminent. However, that does not give a state carte blanche. So I absolutely believe in self-defense but applied in such a way that “imminence” and “legitimate target” are narrowly defined. I think that pre-emptive self-defense is legitimate, but imminence and pre-emption should not be defined so broadly that the words lose their meaning.
The issue of sovereign states is a huge question with enormous policy implications because our drone strikes clearly violate Pakistani sovereignty. We are currently deploying drones to countries like Pakistan, Afghanistan, Yemen, and Somalia, and I take it Mali is around the corner. So yes we violate sovereignty. Some people tell me that in some of those cases the host country “agrees.” I do not know what that means. So it certainly raises serious questions.
Self-defense, broadly applied, could still be a justification offered for drone strikes in sovereign nations. However, such arguments are often suspect. For example, in 2003 there was a terrorist attack in Jerusalem and in response the Israeli Air Force attacked a terrorist base in Syria. This clearly violated Syrian sovereignty. Israel’s response was to argue that it did not attack Syria, but a terrorist base within Syria, and thus did not violate Syrian territory. That is a disingenuous argument. If nothing else, Syrian air space was clearly violated, and the terrorist base was certainly still in Syria.
However, questions of violations of sovereignty are often not so clear. For example, the missiles that Hezbollah has in Lebanon came from Iran; does that mean that Iran engaged in an act of war against Israel? The sovereignty argument can cut both ways, and there are very relevant legal and policy questions surrounding the issue.
How can the U.S. more closely follow international law to make drone strikes more palatable to the international community? Do the opinions of the international community even matter?
I think drone strikes can become palatable if properly articulated and properly implemented. Will you always convince the entire international community? No, of course not. But if the U.S. makes the argument that strikes will only occur in narrowly-defined cases of self-defense, and then actually adheres to this restriction, it can make a compelling argument. However, the U.S. has utterly failed to make such arguments and has drawn the ire of the international community; for example, opinions of Obama in the Arab world have soured dramatically as the country’s drone policy has become more widely known (although of course there are other factors at play as well). International opinions would likely improve if the U.S. observed strict limitations on targeted killing. However, the White Paper demonstrates how completely the U.S. has failed at restraint; it reveals an unfettered executive, devoid of limitation or review. The White Paper is yet another example of über-American power and the arrogance of power.
You believe that drone strikes are acceptable if used within a very strict set of guidelines and only for self-defense. However, is it really reasonable to expect that American leaders will restrain themselves to these guidelines given access to this cheap, accurate and low-risk technology? Why or why not?
Is it reasonable to expect the American executive to execute self-imposed restraint? The answer is evidently no. The DOJ White Paper is President Obama’s Bybee Memo. The Bybee Memo, authorizing torture during the Bush Administration, and the White Paper are two clear examples of executive excess. This is exacerbated by Congress and the Supreme Court’s extraordinarily consistent failure to get involved. We have, in the words of Supreme Court Justice Jackson from 1952, an “unfettered executive,” without insight or judicial restraint. And if you believe in limits on executive power, then the Bybee Memo and the DOJ White Paper illustrate that the mistakes of the Bush Administrations are also the mistakes of the Obama Administration.
That said, I think the drone program, if properly implemented, makes a lot of sense if subject to narrow criteria. Targeted killing decisions must reflect rational decision making. Furthermore, these decisions need to complement other methods of gathering intelligence; drones are the way of the future, but there still needs to be boots on the ground. My upcoming book is all about these criteria, and my analysis is predicated on my experience in targeted killing decision-making.
How do you respond to the argument that great risk or great expense are necessary in a military operation to ensure that leaders show the appropriate restraint?
I wear two hats, that of an American academic and that of someone who served in the Israeli army for twenty years. This Israeli Supreme Court engages in robust judicial review. There is a different judicial paradigm in the United States, so there must be a policy or organizational change to impose a restraint on the executive. Should the U.S. create a “drone court?” Should it assemble a panel of experts to create guidelines to which the executive will refer when authorizing an attack? There are a number of possibilities, but ultimately the country needs to develop some sort of independent body of restraint or review. A number of years ago I wrote an article exploring this idea of a tribunal of experts, and I’m glad to see others are embracing this idea as well. It will not be created overnight, and will be difficult to implement since it minimizes executive power, but if drones are indeed the future, as I believe they are, the some sort of external restraint or review is essential, particularly in response to the DOJ White Paper.
You recently wrote in e-International Relations that the U.S. is in danger of relying too heavily on the use of technology in its defense programs. How can the U.S. defense system guard itself against such a powerful trend?
In my book and in the article I write that there is an allure to the sleekness of technology. I am certainly troubled by the idea of some drone operator sitting with a joystick outside of Las Vegas thousands of miles away from any combat. If technology improves the country’s security and minimizes potential harm to soldiers then I believe it can be a valuable tool, but the use of technology should always be accompanied by the rigorous analysis of intelligence information. It should also be totally subservient to domestic and international law and principals of distinction, proportionality and collateral damage. Finally, it should be totally subservient to what I call the morality of armed conflict. The lure of technology can in no way replace these fundamental core issues. Essentially, I am waving the yellow flag of caution. Combining my perspectives from two worlds of military and academia, I wave that yellow flag of caution saying that yes, self-defense is justified, and it is sometimes justified to kill someone, but these decisions must always be subject to review and restraint. I am neither unequivocally pro-drone strikes nor unequivocally against them. Instead I try to carve out a confluence of policy, morality, and legality surrounding the issue.