Targeted Killing of U.S. Citizens at Odds with the Constitution

In a recent post on the blog TomDispatch.com, Peter Van Buren published a piece condemning the United States’ drone policy, particularly in regards to the recent news that the U.S. is considering the targeted killing of a U.S. citizen abroad. In the piece, “Drone Killing the Fifth Amendment: How to Build a Post-Constitutional America One Death at a Time,” Van Buren explores the constitutionality of the U.S.’s drone policy, and argues that “They’ve thought about it [targeted killing]. They’ve set up the legal manipulations necessary to justify it.”

It is no great secret that both the legality and the morality of targeted killing has been a hot topic in recent months, Van Buren argues that the practice is at odds with the values our country is based on, as the targeted killing of a U.S. citizen denies him the due process guaranteed by the Fifth Amendment. Essentially, Van Buren’s point is that we are in a post-Constitutional America, and have strayed dramatically from the values of our Founding Fathers.

As someone who tends to agree with the loose constructionist interpretation of the Constitution, I side with Van Buren on this. Broadly, I believe that a document written over 200 years ago was never intended to be followed to the letter. Try as they might, our Founding Fathers had no way of predicting what our country would look like and the problems we would face in 2014. What Van Buren is saying, however, is that we have strayed too far from the values our country was built upon. While one would be hard-pressed to find the phrase “targeted killing” or “drone strikes” anywhere within the four corners of the Constitution, we still need to abide by the guiding principles outlined in the document. We are allegedly a country that values freedom, liberty, and due process. If we kill our own citizens in drone strikes, is that truly constitutional?

Kelly Ann Taddonio
Senior Research Fellow

February 18, 2014

 

US Considering Drone Strike Against Citizen

Yesterday afternoon, the Associated Press reported that the US is currently tracking an American citizen and terrorist suspect in Pakistan. While officials have not confirmed the identity of the man, they described him as an “al Qaeda facilitator” who is currently plotting attacks against the United States. Now the Obama administration is struggling with the question of whether to use the controversial drone program to eliminate him. Continue reading

Drone Strikes Remain in CIA Territory

Six months after the White House announced that drone strikes would move from the CIA’s authority to the DoD, new reports state that the transfer will not be happening any time in the near future.  President Obama originally claimed that the transfer was meant to increase transparency and open up debate in regard to the controversial drone strikes across the Middle East.  While many will undoubtedly criticize the delay, the situation may not be as bad as it appears on its face.  In fact, it may be that keeping drone strike capabilities in the hands of the CIA will actually be a positive in the long run. Continue reading

Drone Strikes Linked to More Civilian Deaths

Despite claims that drone strikes in Pakistan have been effective and efficient, new reports are set to come out later this week that link the drone campaign with high civilian casualty rates, raising questions regarding the United State’s transparency in the ongoing drone war.   Continue reading

The Way Forward in the Drone War

About two weeks ago, I promised to outline a new approach to the US’s national security problems in Pakistan as a way to end or reduce the reliance on drone warfare. Here it is, at least in broad outlines: Continue reading

US Embassies Close in Wake of Terrorist Threat

Unless you live under a rock, you’ve probably heard about the State Department’s response to an alleged terrorist threat this past Friday.  The State Department issued a travel alert to all Americans traveling abroad and even went so far as to close 21 foreign embassies over the weekend, 19 of which will remain closed through this week.  Although the embassies that are now closed are located mostly in the Middle East and North Africa, the travel alert covers Americans traveling to all parts of the globe. Continue reading

Signature Strikes are as Old as War

Arianna Huffington recently wrote on the Huffington Post about the Obama Administration’s use of so-called “signature strikes” by drones in Pakistan and elsewhere. Underlying much of her criticism is a basic assumption that signature strikes are a new form of targeting that is more pernicious than the more targeted strikes that we are used to. This assumption is perfectly true, if your sense of history goes back no more than about decade.

Signature Strikes are the norm, not the exception

The truth is that what we now call “signature strikes” used to just be called “targeting the enemy.” The practice is in fact so old that it is impossible to trace its origins. In fact, some of the earliest accounts of armed conflict speak about the use of “signatures” or qualities that allow a soldier or government agent to identify an unknown person as a probable member of an enemy group. The Old Testament is replete with examples, including David’s use of foreskins to identify Philistines, and the Gileadites’ use of the word “shibboleth” to identify and kill the Ephraimites.

In fact, knowing the identity of your enemy with any precision was extraordinarily rare until the last ten years. Granted, targeted killing of one sort or another (even leaving aside clear cases of political assassination) has existed for time immemorial as well, but was definitely not the norm. It was instead an unusual undertaking, and attempts rarely led to success. For eons, the standard approach to warfare has been to assemble together a large group of men, few of whom are expected to know any of the enemy by name (with the exception of their king or president), and effectively set them loose on a collection of the enemy population. In later more “civilized” times, these armed groups would mostly only attack one another, although this was never a perfectly uniform practice. These soldiers, whether professionals or conscripts, would not identify an enemy by name, position, or other individualized characteristic. It was always enough that they “look like the enemy.”

This is what has always been expected of soldiers, and to a great extent, still is. We now have more rigorous standards of conduct, laws to mitigate civilian damage done during an attack on enemy forces, and clearly spelled out rules of engagement. Even still, in my four years in US Army’s 82nd Airborne Division, including deployments to Iraq and Afghanistan, I was shown a picture of an individual enemy that we planned to kill or capture on a handful of occasions. The rest of the time we were just expected to use the same standard as is used for pornography: you know it when you see it. In other words, we were expected to use the ground combat equivalent of signature strikes. Warfare is just not that individualistic, even today.

Signature strikes may not be new, but our new techniques are helping reduce civilian harm, despite the “evidence”

Still, the US military and intelligence community is becoming impressively proficient at identifying and locating individual members of the enemy. Despite the much publicized (but mostly classified) report recently published by the Center for Naval Analysis’ Larry Lewis, most reliable evidence says that drones, even when used for signature strikes, are much more discriminant and precise, killing or injuring fewer civilians per strike, and far fewer per militant killed. Much of the evidence to the contrary is in fact gained from anonymous sources linked to the Pakistani military or to the militants themselves. Given the sourcing–the enemy and their patrons–it is a little surprising that the claimed number of civilian deaths is in fact so low, even including signature strikes. Maybe these sources are willing to double the number of civilian casualties, but tripling it seems a bridge too far (except for a stalwart few who transparently either fudge their numbers or need to retake middle school pre-algebra).

As a case in point, even the Bureau of Investigative Journalism, who appears at first to be an honest broker of information on drone strikes, upon deeper investigation, are highly biased. They reported yesterday that the number of civilian deaths due to drone strikes in Pakistan has been underreported by 81. They describe this as a “high civilian death toll,” but for a campaign waged over the course of nine years, this is actually an extremely low death toll. I challenge anyone to find another military campaign that lasted nine years yet killed fewer than 45 civilians per year (according to their numbers). However, even these numbers are suspect, as can be seen from their source document, a leaked Pakistani summary of drone strike casualties. Setting aside the arithmetic problems (4+5=8? Apparently, in Pakistan. See line 78), several problems indicate unreliability.

First, the number of civilians killed is not always as clear as the Bureau would have it. In the vast majority of “civilian” casualty cases, the number of civilians are not specified, and is indictated only by inclusion of the word “civilian” in the remarks column. It is not clear whether this means all dead and wounded were civilians or whether one or some of them were. However, in other cases, the number is given, or the remarks indicate that they were “all civilians.”

Second, and more damning, only two references were made to militants out of the nearly 750 dead in 84 attacks. However, one entry refers to “miscreants,” and several others list foreigners as among the dead. This raises the suspicion that the number of militants killed is actually under-reported, and thus the possibility that some listed as civilians are in fact militants.

Third, and worst of all for the reliability of this information, it is apparently obtained secondhand and from afar. Several of the entries indicate that the information is “reported” or “yet to be received.” Local elders and even local political administrations are often pro-Taliban or otherwise compromised (e.g. by bribery which constitutes the majority of their income).

The hard truth is that coming to even a good, ball-parked number of civilian dead is extremely difficult. But what is clear is that the US drone campaign, even when using signature strikes, has a remarkably low rate of civilian casualties when compared to other available options, given their advanced optics, long loiter times, and precision munitions. Those who advocate against drones tend to focus on the technology, when what they are actually opposed to is the use of force in general. This is a laudable sentiment, but these same folks never seem to be willing to offer workable alternatives.

The truth is that drones are here to stay, because they are an extremely useful, discriminating weapon system. Given that we are involved in a protracted conflict with an enemy that hides among the civilian population, our drones and drone pilots are doing a remarkable job. Of course, as I will describe in a later post, relying solely on drones to win this conflict for us is in the end counterproductive. More on that soon.

 Paul W. Taylor, Senior Fellow
Center for Policy and Research

Drone strike kills 16 militants in Pakistan–for the last time?

Late on Tuesday, July 2, a massive drone strike in northwestern Pakistan killed 16 militants reported by local officials to be associated with the Haqqani network. This was the first drone strike in Pakistan since June 7th, and only the second since the election of Pakistan’s new Prime Minister, Nawaz Sharif.

The Pakistani Ministry of Foreign Affairs condemned the attack:

“These strikes are a violation of Pakistan’s sovereignty and territorial integrity. Pakistan has repeatedly emphasized the importance of bringing an immediate end to drone strikes.”

Pakistan’s civilian government has long protested these strikes as a violation of their sovereignty, even while their military coordinates with the US to a clear airspace for the drones. Few in Pakistan vocally support the drone strikes, despite the fact that some officials will quietly admit that they have been an effective means of dealing with their chronic militant problem. Despite this quiet acknowledgement, the Ministry of Foreign Affairs’ statement asserted that:

“The government of Pakistan has consistently maintained that drone strikes are counterproductive, entail loss of innocent civilian lives and have human rights and humanitarian implications. These drone strikes have a negative impact on the mutual desire of both countries to forge a cordial and cooperative relationship and to ensure peace and stability in the region.”

The last part is definitely true, and will be increasingly true in the future. In fact, at least one analyst believes that the strike will be taken as a personal affront to newly-elected Prime Minister Sharif, since it was conducted while he was out of country on a state visit to China, and may in fact be one of the last drone strikes in Pakistan.

This is not entirely far-fetched, given the rather remarkable decline in drone strikes in Pakistan over the course of the past few years, as I have written about previously, despite initial fears on the left that Obama was going to drastically increase the use of drone strikes. Although, according to data from the New America Foundation, he did initially increase the use of drones to attack militants in Pakistan, quadrupling the number of strikes over his first two years (and incidentally, halving the number of civilian casualties over the same period).

However, there is reason to disbelieve that this declining rate of strikes signals the end of the program. Probably the best indicator is that the drop in the number of drone strikes does not appear to be correlated to any decrease in the number of leaders these strikes have taken out of the fight. This may just indicate that the strikes are more selective, and that we are getting better at locating and targeting the leadership.

Selectivity of US drone strikes in Pakistan, as measured by the number of leaders killed per strike.

Selectivity of US drone strikes in Pakistan, as measured by the number of leaders killed per strike.

Interestingly, it is not necessarily our own enemies that we have been targeting. It is relatively well-known that the first drone strike in Pakistan, which killed Taliban leader Nek Mohammad, was selected at the specific request of the Pakistani military, in order to rid them of an enemy of the Pakistani state. And while the Afghan Taliban have received aid and shelter from Pakistan, their sister organization, Tehrik-i-Taliban Pakistan (TTP), has targeted Pakistani government forces and installations with brutal efficiency. They have even captured territory startling close to Pakistan’s capitol, Islamabad. Pakistan seems unable or unwilling to crush this movement. The US has been working on it for them, however. Of the five Taliban leaders killed in US drone strikes in 2013, four have been leaders of TTP. Simultaneously, the number of Afghan Taliban leaders killed in drone strikes has been on the decline.

Number of leaders killed in US drone strikes in Pakistan per year.

Number of leaders killed in US drone strikes in Pakistan per year.

With all of the back-room dealing that has occurred between various parts of the Pakistani and US governments, is entirely possible that a deal has been struck with the Pakistani military that will allow the US to continue to use drones to target its own enemy, so long as it also takes out Pakistan’s, as well.

There is also reason to believe that the US will continue to use drones in Pakistan with or without its consent. The continuing instability in rural Pakistan and the inability of the Pakistani government to reduce the violence emanating from the region, which is much more substantial than that caused by drones, as well as its inability or unwillingness to limit the export of terrorism and insurgency from its territory cannot simply be ignored. It is not a bumblebee that will go away if left to its own devices. And until some alternate method of limiting the Taliban’s and Al Qaeda’s ability to use Pakistan’s territory to train and equip  their operatives and send them out against America and its allies, the US government will have little choice but to employ drones, even if in a more limited and selective fashion.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

Pakistani Taliban will not attend peace talks, citing drone strike

After the recent drone strike in Pakistan’s North Waziristan region,  the Pakistani Taliban (Tehrik e  Taliban Pakistan, or TTP) initially refuted claims that their number two commander and chief military strategist, Wali ur-Rehman, had been killed. The TTP have since admitted that Rehman was indeed killed in the strike, and cite that strike as the reason for refusing to attend the scheduled peace talks with the Pakistani government.

The Taliban’s spokesman blamed Pakistan’s civilian government for failing to put a stop to the CIA-run strikes:

“We announce an end to our peace overtures because we believe that the Pakistani government is equally involved in the drone attack,”

It has always been reasonably clear that the talks were not going to lead to much anyway, and it is likely that this simply presented the Taliban an excuse to pull out while appearing to take the high road. However, reports indicate that if anyone in the Pakistani Taliban was open to serious peace talks, it was probably Rehman.

Some here at home have also criticized the strike, since they see it as a breach of President Obama’s newly announced changes in our drone policy, first because it was run by the CIA rather than the DoD, and second because there is no indication that Rehman posed an imminent threat of the type Obama’s new policy would require for targeted killing. However, according to Foreign Policy’s Situation Report, the adoption of the new rules is not a simple matter of flipping a switch somewhere in the Oval Office:

“there is no timeline when it comes to migrating drone operations to the DOD. ‘You don’t move it overnight,” said the former senior official.’ “

Paul W. Taylor, Senior Fellow
Center for Policy & Research

Ben Emmerson talks drones with Lawfare

UN Special Rapportuer for Human Rights and Counter-Terrorism Ben Emmerson spoke with Lawfare’s Benjamin Wittes and Ritika Singh about his study of US drone policy, focused primarily on our operations in Pakistan (podcast available from Lawfare: see episode 31). I have expressed some skepticism of his objectivity in past posts (here and here), but also some optimism (here). Having just listened to Emmerson’s 40 minute discussion, I now have a great deal of respect for the man’s commitment to objectivity.

In the discussion Emmerson admits to having initially approached the subject from not only a human rights perspective, but also with the preconception that the US was not at war at all. His views on these issues have become both tempered by his investigation and discussions with officials in Pakistan and the US, and also quite nuanced. Once example of this can be found in his explanation of his comments earlier this year in which he is broadly quoted as saying that Pakistan has not consented to US drones attacks on its soil. His elaboration of how he came to this position is quite interesting, and well worth listening to (it starts at minute 23).

Far from simply accepting the assertions of Pakistan’s civilan officials that they have repeatedly protested against drone strikes, Emmerson starts his analysis from the passage of a law restricting consent to the use of drones by officials of the Pakistani government. Since the US and the international community are interested in promoting democracy and the rule of law, Emmerson argues, such a restriction, passed by the elected representatives of the Pakistani people should set the basis of consent. To allow back-room deals to trump a duly enacted law would be anathema to the promotion of democracy.

Emmerson then preempted the ever-realist Wittes’ rebuttal that the democratic government of Pakistan is not the effective government with regard to matters of national security and foreign affairs by pointing out that while Pakistan is clearly a flawed democracy, it is also by the same token a fragile democracy that should be nurtured rather than subverted in the name of expedience.

Another point made by Emmerson which displays his objectivity and thoughtfulness relates to the perception that drones could unduly high civilian casualties. Emmerson cited  UNAMA statistics kept over the last decade on civilian casualties from various kinds of ordinance. And while that data clearly shows that drone attacks in Afghanistan tend to cause substantially fewer civilian casualties than attacks by fixed-wing air craft, the perception of the the majority of Afghans is the exact opposite: that drones are prone to killing innocents. He therefore wonders (without concluding) whether drone warfare is in the long run more harmful than other means of achieving similar ends.

Other points warrant mention as well, but in all, I am very impressed with Ben Emmersion’s intellectual honesty and objectivity. I now truly look forward to his report, due to be produced in September.

Paul W. Taylor, Senior Fellow
Center for Policy & Research