Targeted Killing

The Pandora's Box Critique of Drones, and Other Concerns

By Robert Chesney
Friday, October 28, 2011, 10:48 AM

Yesterday Harper’s ran a piece by Daniel Swift on drones, criticizing the extensive but selective leaking of details about the CIA drone program.  It’s a fair point, resonating with Ken Anderson’s concerns regarding the legitimacy issues that arise with deniable-but-not-truly-covert activity.   I have problems with several of Swift’s other arguments, however.

First, the article points out that a drone strike conducted by the military under color of Title 10 authorities by definition does not require a presidential finding (as would be the case with a Title 50 covert action).  Quoting from Philip Alston’s recent article on drones, Swift concludes from this that the military can therefore act “much more readily” than the CIA.  I think this is not correct, however, if what Swift means is that the military can use lethal force without presidential approval outside of combat zones.  Here is what I write on this issue in my forthcoming paper on the legal aspects of military-intelligence convergence:

According to Eric Schmitt and Thom Shanker of the New York Times, Secretary of Defense Robert Gates during his tenure had long been concerned by the prospect of kinetic operations undertaken without presidential pre-approval .... They quote Gates as stating that:

            It has been my practice since I took this job that I would not allow any kind of lethal action by U.S. military forces without first informing the president or getting his approval.... I can‘t imagine an American president who would like to be surprised that his forces were carrying out an attack someplace around the world without him knowing about it. So I decided that we should change all of the ExOrds to make them conform in policy with my practice—that, in essence, before the use of military force, presidential approval would be sought.

This apparently did not mean that commanders always had to reach back to the president before attacking in particular instances; that would cause problems in striking targets of opportunity. Rather, “Gates created a system where options for potential types of missions were discussed with the president in advance so that he [as] commander in chief could delegate authority beforehand to strike specific fleeting targets.”

I have no reason to think that this policy has been changed since Leon Panetta became Secretary of Defense. And though I do argue in my paper that it would be wise to entrench this policy in statute (for the use of lethal force outside of combat zones), the fact remains that it leaves the military and the CIA similarly situated with respect to the issue of presidential authorization for the use of deadly force.

Second, Swift argues (again quoting from Alston) that drone strikes conducted as covert actions are “not...subject to the sort of constraints, either territorially or jurisdictionally that would apply to a military operation.”  This too is a topic I explore at length in my paper.  I conclude that Title 50 does not give the CIA carte blanche to act contrary to IHL where it applies, and that any difference between the military and the CIA vis-a-vis territorial/sovereignty objections most likely stems from variations in the respective Exords and Findings that govern their operations.  This may or may not be inconsistent with what Swift meant to argue, of course. 

Last, the Pandora's Box critique.  Swift argues (once more quoting Alston) that our approach to drone strikes will “come back to haunt the United States,” as more and more countries develop this technology (Swift emphasizes Iran in the concluding line of his paper).  While it is always wise to bear in mind such possibilities, I just can’t agree with those who imply that states like Iran, China, and Russia would not develop and deploy armed drone technology without the precedent of the American drone program, nor that these states would refrain from using the technology in certain ways but for the legal positions that the United States has taken.  On the latter point, it is important to bear in mind that the U.S. government has never asserted the authority to simply use lethal force wherever in the world al Qaeda members might be found, without respect to the wishes of the host-state in whose territory the al Qaeda members turn out to be.  Aside from Iraq, Afghanistan, and Libya, the public record suggests that lethal force has been used in Pakistan, Somalia, and Yemen, and that in each instance the U.S. government either had consent from the host state (private, perhaps, but consent nonetheless) or else was acting in a circumstance in which the host state was unwilling or unable to act.  U.S. actions are precedent for nothing more, and nothing less, than this. 

Of course, that does not mean that a state like Iran won’t do its best to analogize some future action to the U.S. drone program, in circumstances in which we do not find the analogy persuasive (because we disagree that the host-state is unwilling or unable to act, or more likely, because we disagree that the target of that state’s use of force posed a sufficient threat to justify such an action).  Such cases no doubt will arise one day.  But I am skeptical that such cases would not arise but for current U.S. drone activities.  In any event, the debate should focus much less on the weapons platform involved and far more on the question of which fact patterns are appropriate to justify non-consensual uses of force on the territory of other states.