Drone Debate

Energy security in Africa and the Middle East has increasingly overlapped with counter-terrorism concerns. The following is an annotated bibliography of major reports, academic writings, articles and books of late concerning targeted killing with weaponized drones and the laws of war. Please credit this page, and email me other important (recent) studies to add: wd197@georgetown.edu

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MQ-9 Reaper

 

Drones, Counterterrorism, and the Law

–Abbot, Sebastian. “New light on drone war’s death toll.” AP. Feb. 26, 2012. http://news.yahoo.com/ap-impact-light-drone-wars-death-toll-150321926.html

Author is Pakistan Bureau Chief for the Associated Press. An AP on-the-ground investigation in Pakistan has concluded that U.S. drone strikes have killed far fewer civilians than Pakistani intelligence, right-wing politicians, and clerics maintain. “An AP reporter who spoke to about 80 villagers at the sites of the 10 attacks in North Waziristan, the main sanctuary for militants in Pakistan’s northwest tribal region along the Afghan border, was told that a significant majority of the dead were combatants.” The U.S. should make its program more transparent to help dispel such myths and exaggerations surrounding its drone program.

–Ahmed, Akbar. The Thistle and the Drone: How America’s War on Terror Became a Global War on Tribal Islam. Brookings Institution Press, 2013.

The author held diplomatic posts for Pakistan and studied anthropology before becoming Ibn Khaldun Chair of Islamic Studies at American University and Senior Fellow at Brookings. This book considers Obama’s drone warfare “illegal” and argues that the war on terrorism has driven a wedge between central governments and tribal societies (e.g., Pakistan’s Waziristan). He does not believe Islam per se is the problem, but rather tribal identity in conflict with modernizing governments.

As this groundbreaking study demonstrates, it is the conflict between the center and the periphery and the involvement of the United States that has fueled the war on terror. No one is immune to this violence—neither school children nor congregations in their houses of worship. Battered by military or drone strikes one day and suicide bombers the next, people on the periphery say, “Every day is like 9/11 for us.” http://www.brookings.edu/research/books/2013/the-thistle-and-the-drone#ref-id=20130319_Ahmed1

–Akbar, Mirza Shahzad. “Obama’s Forgotten Victims.” New York Times Oped, May 22, 2013. http://www.nytimes.com/2013/05/23/opinion/the-forgotten-victims-of-obamas-drone-war.html

Akbar represents individuals in Peshawar and Islamabad who were affected by drone strikes in North Waziristan. He is also co-founder and legal director of the Foundation for Fundamental Rights. Here he introduces some of his cases in expectation that Obama’s address on counterterrorism (May 23, 2013) will legitimize the drone program. Akbar argues that the strikes are often misguided and irresponsible, and that the Administration’s definition of ‘militant’ is problematic. He criticizes both the U.S. and Pakistani governments for their respective roles in promoting drone strikes, and calls for Pakistan to demand a stop to all strikes.

–Alston, Philip. “Study on targeted killings.” Addendum to the Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions. UN Human Rights Council, 14th Session, May 28, 2010. http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf

Author is John Norton Pomeroy Professor of Law at New York University School of Law, and co-Chair of the school’s Center for Human Rights and Global Justice. Alston opens with a definition of ‘targeted killing’, new killing policies, and new technology (drones). He then lays out basic rules, addressing issues of state sovereignty and the right to self-defense, the existence of armed conflict, who may be targeted, who may conduct a targeted killing, the use of drones, and transparency and accountability. IHL puts limits on the kinds of weapons allowed (banning biological weapons, for example), but drones are “no different from any other commonly used weapon.” The issues more specific to drones include: whether they promote a too-expansive interpretation of the legal right to use apply lethal force; how reliable on-the-ground intelligence is in support of the program; how disengaged the operators are; and the use of force outside of stated armed conflict.

Alston ends with recommendations: “States should publicly identify the rules of international law they consider to provide a basis for any targeted killings they undertake. They should specify the bases for decisions to kill rather than capture. They should specify the procedural safeguards in place to ensure in advance of targeted killings that they comply with international law, and the measures taken after any such killing to ensure that its legal and factual analysis was accurate and, if not, the remedial measures they would take. If a State commits a targeted killing in the territory of another State, the second State should publicly indicate whether it gave consent, and on what basis.” More specific recommendations follow.

–Anderson, Kenneth. “The Case for Drones.” Commentary, June, 2013 (pp.14-23).

Author is professor of law at American University, a research fellow of the Hoover Institution, and Non-Resident Visiting Fellow at the Brookings Institution. Here he updates his defense of drones in light of Obama’s counterterrorism speech (May 23, 2013). The author argues forcefully against claims of the left and right that drone warfare is more inhumane or indiscriminate than alternatives like jet strikes or cruise missiles, causes too many civilian casualties and undue blowback, or encourages the decision to use force. He calls on the Administration to review the AUMF, rethink what ‘associated forces’ of al-Qaeda are, and revise the definition of ‘covert action.’ The paper ends with a call to Republicans to support the President’s tentative steps to legitimize and institutionalize drone policy for perpetuity rather than mimic Democrats in their opposition to the Bush-era war on terror. 

—Anderson, Kenneth. “Targeted Killing in U.S. Counterterrorism Strategy and Law.” A working paper of the Series on Counterterrorism and American Statutory Law, a joint project of the Brookings Institution, Georgetown University Law Center, and the Hoover Institution. May 11, 2009. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1415070.

This is an in-depth look of the legal framework for targeted killing, both in US history since the CIA’s founding to present-day AUMF and international law; and a call for Congress and Admin to clarify the U.S. position to the world in one voice.

“The purpose of this chapter is to suggest that…the uses to which the Obama Administration seeks to put targeted killing are proper, but they will require that it carefully preserve and defend legal authorities it should not be taking for granted and that its predecessors, including the Bush Administration, have not adequately preserved for their present day uses.” [3] This will become more difficult as ‘soft law’ trends continue on the international scene to make targeted killing illegal or illegitimate outside of specific war-like conditions, and render past and present US targeted killings ‘extrajudicial’ (murder). Our Allies’ assistance in counter-terrorism will decline if the US is perceived as operating extrajudicially. “The single most important role for Congress to play in addressing targeted killings…is the open, unapologetic, plain insistence that the American understanding of international law on this issue of self-defense is legitimate.”[32] Author ends with other specific legal recommendations.

–Anderson, Kenneth. “Drones II: Testimony Submitted to the U.S. House of Representatives Committee on Oversight and Government Reform, Subcommittee on National Security and Foreign Affairs.” Wednesday, April 28, 2010. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1619819

Anderson’s testimony is in line with his published work [see above], where he is mostly supportive of the Obama Administration’s practices and attempts to clarify policy. Here he focuses especially on the legality of the CIA’s use of force: “Finally, to be clear, the use of drones, or other use of force by civilian CIA agents in covert operations is not contrary to international law insofar as it is an exercise of lawful self-defense. The traditional view of the United States…is sovereignty and territorial integrity are very important in international law, but they cannot be used to shield transnational terrorists who have found safe haven.” [9]

Anderson also supports the Administration’s targeted killing of U.S. citizens fighting with terrorists in unlawful regions such as Yemen. The testimony ends with a strong call for Congress to develop Legal Advisor Koh’s statements, to explain and legitimize CIA’s role in targeted drone killings, to uphold drone warfare as honorable and legitimate; and for the CIA to share its knowledge of collateral damage. [11-12]

–Anderson, Kenneth and Waxman, Matthew. “Law and Ethics for Autonomous Weapons Systems: Why a Ban Won’t Work and How the Laws of War Can.” Hoover.org Taskforce on National Security and Law. http://media.hoover.org/sites/default/files/documents/Anderson-Waxman_LawAndEthics_5R_FINAL.pdf

On Anderson, see above. Waxman is American law professor at Columbia University and a Fellow at the Hoover Institution and Fellow at Council on Foreign Relations. He held positions at the Department of State, Department of Defense, and National Security Council under George W. Bush. This paper sees continued automation in weaponry to be “inevitable” and “incremental,” not unlike self-driving cars or sophisticated stock market programs. Laws and norms will likewise adapt and conform gradually in tandem. It pushes back on those who would ban all autonomous systems for legal or moral reasons, or those who call for an international treaty on drone use. It argues that the U.S. should lead.

“The United States should assert that existing international law of war requirements and so-called Article 36 weapons reviews (based on Article 36 of the first additional protocol to the Geneva Conventions), must be applied by all parties in the development and deployment of automated weapon systems, with special scrutiny to systems that are autonomous with respect to target selection and engagement. At the same time, it should assert equally that these systems raise novel issues of legal review…” [4]

“For its part, the government of the United States must resist two extreme instincts—its own instincts among officials to hunker down behind secrecy and avoid discussing and defending even guiding principles, on the one hand, and the instincts of critics or skeptics of autonomous lethal systems favoring the idea of some grand international treaty to regulate or even prohibit them, on the other. Instead the U.S. government should carefully and continually develop internal principles, processes, and practices that it believes are correct for the design and implementation of such systems. It should also prepare to articulate clearly to the world the fundamental legal and moral standards by which all parties ought to judge autonomous weapons, whether those of the United States or those of others.” [23]

–Aslam, Wali. The United States and great power responsibility in international society: Drones, rendition and invasion (Routledge, 2013). http://www.amazon.com/United-States-Responsibility-International-Society/dp/0415644682

Aslam is lecturer at Brunel University, UK, and was born in Pakistan. Here he uses the ‘English School’ approach to international relations to argue that U.S. drone, rendition, and invasion policies contradict norms of legality, legitimacy, and prudence.

–Becker, Jo and Shane, Scott. “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will.” The New York Times, May 29, 2012. http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html?%20r=2&pagewanted=1&pagewanted=all&_r=0#p[TMATMA]

This paper give an overview of drone strikes under Obama, and provides a detailed look at how he and his national security team review and ultimately approve targets. It reviews some of the reactions—both favorable and otherwise—of major officials from Hilary Clinton to John Rizzo, and their recollections of Obama’s very personal interest in operations. Obama has not been able to reset the U.S. relation with the Muslim world—any more than close Guantanamo—but he has embarked on a new counter-terrorism strategy.

–Bellinger, John B. “Will Drone Strikes Become Obama’s Guantanamo?” Oped piece. Washington Post, Oct. 2, 2011. http://www.washingtonpost.com/opinions/will-drone-strikes-become-obamas-guantanamo/2011/09/30/gIQA0ReIGL_story_1.html

Bellinger is former legal advisor to the State Department and former legal advisor to the National Security Council. Here he addresses the drone killing of an American citizen, Anwar al-Awlaki. The author cautions that without more transparency and explanation of the legality of the drone program both human rights organizations and U.S. allies will unanimously condemn Obama’s strategy. He strongly advises Obama to avoid having the drone program become something akin to Guantanamo.

–Benjamin, Medea. Drone Warfare: Killing by Remote Control (OR Books, 2012).

Benjamin is co-founder of CODEPINK and Global Exchange. She does not believe that 9/11 justified going formally to war, and believes that U.S. counterterrorism actions since 9/11 are ineffective (especially by fomenting anti-Americanism). Here she issues a strong rejection of drone warfare and calls for international guidelines to curb all robotic warfare, which she likens to land mines and cluster bombs. She works to incite an international and organized anti-drone peace movement. 

–Bergen, Peter and Rowland, Jennifer. “Obama ramps up covert war in Yemen.” CNN, June 12, 2012.  http://www.cnn.com/2012/06/11/opinion/bergen-yemen-drone-war/index.html

The article takes a close look at the strikes in Yemen, providing the known data. It shows that the new strategy of ‘signature strikes’ started here. The authors expect Obama to continue the drone warfare in Yemen. 

–Bipartisan Policy Center, “Drones and the Rule of Law and War.” May 1, 2013 Panel.

Panelists: John Bellinger, Hina Shamsi, Philip Zelikow, Mark Mazzetti

–Boothby, William H. The Law of Targeting (Oxford, 2012).

The author is a retired Deputy Director of Legal Services for the Royal Air Force. This work is intended as a comprehensive textbook on all international law that applies to targeting killing for as wide an audience as possible. It covers suicide bombing, drone warfare, and cyber warfare, among other approaches; distinction, discrimination, proportionality; ‘civilian’ v. ‘combatant’, etc.

–Boyle, Michael J. “The Costs and Consequences of Drone Warfare,” International Affairs 89:1 (2013), 1-29.

The author is assistant professor for political science at La Salle University. This article sets legal and ethical considerations aside to focus on blowback and strategic costs of the drone policy. It argues strongly that drone strikes in places outside the theatre of formal war, like in Pakistan and Yemen, undermine the stability and legitimacy of local governments, enflame anti-Americanism, and inspire new recruits to terror. Obama’s policy is not only counterproductive, but also cultivates a new arms race. The author counters major arguments for the supposed effectiveness of drone strikes especially by stressing how unreliable the evidence is: “The position of the American foreign policy establishment on drones…is based on a highly selective and partial reading of the evidence” (4), and “each of the most common claims for the effectiveness of drones is based on shaky empirical evidence, questionable assumptions and logical fallacies” (13). The author calls for U.S. restraint and transparency, and new international standards and norms for use and sale of drones.

–Bradley, Jay Strawser, ed. Killing by Remote Control: The Ethics of an Unmanned Military (Oxford, 2013).

The author is Assistant Professor in the Defense Analysis Department at the US Naval Postgraduate School, Monterey, CA. He is also a Research Associate at Oxford Institute for Ethics, Law, and Armed Conflict. This book is an edited collection divided into three parts: Just War Theory, The Ethics of Drone Employment, The Future of Unmanned Weaponry. Bradley’s own position is that the only moral question is whether or not to use force, not what platform to use—F-15 or drone. In other work he considers drones an “obligatory” strategy in the interest of minimizing collateral damage and threats to U.S. soldiers.

–Brennan, John O. “The Efficacy and Ethics of U.S. Counterterrorism Strategy.” Remarks to Wilson Center April 30, 2012. http://www.wilsoncenter.org/event/the-efficacy-and-ethics-us-counterterrorism-strategy

Brennan is Director of the Central Intelligence Agency and former chief counterterrorism advisor to President Barack Obama. He stresses the unprecedented ability the drone program has to distinguish between al Qaeda terrorists and civilians, and to target with “astonishing” and “surgical” precision.

–Brooks, Rosa. “Flying Mission Creep: What We Can Learn from the Pentagon’s History with Drones.” Talk delivered at New America Foundation, May 7, 2013. http://www.youtube.com/watch?v=5GvIQ_zgZmM

Speaker is law professor at Georgetown University and former Counselor to the Under Secretary of Defense for Policy, and former senior advisor at the Department of State. She founded DoD’s Office for Rule of Law and International Humanitarian Policy. Brooks argues that many concerns about drone warfare are ‘red herrings’, including civilian casualties, automation, and distance killing. For example, one might argue that targeted killing is more personal by drone than by conventional delivery systems. There are two issues more specific to drones: one, that the benefits of drones may encourage the decision to use force when/where it would not otherwise be considered (e.g., Al-Shabab in Somalia is, Brooks claims, too remote from 9/11 and non-imminent to warrant targeting), which might create more terrorists than kill; and two, that the use of force against non-state actors in lawless environments challenges current laws of war. Until a new vocabulary and framework is discovered we will have divergent interpretations of the same events: what is a normalized legal killing of an enemy combatant to one person is murder to another.

–Burt, Andrew and Wagner, Alex. “Blurred Lines: An Argument for a More Robust Legal Framework Governing the CIA Drone Program.” The Yale Journal of International Law Online. Fall 2012 http://www.yjil.org/docs/pub/o-38-burt-wagner-blurred-lines.pdf

Wagner is Special Advisor for Rule of Law and Detainee Policy, Office of the Secretary of Defense, and Adjunct Professor of Law at Georgetown University. Burt is a law student at Yale. The paper analyzes the (assumed) CIA drone program in detail, and its operational and legal difficulties, esp. in terms of the non-combatant status of CIA operators. It takes a close look at relevant articles of the Geneva Convention.

“In this Essay, we seek to:(1) outline our basic factual assumptions about the CIA’s drone program based on open – source reporting; (2) examine the purported rationale for keeping the drone program divided between military and civilian operators; (3) clarify the legal status of CIA civilian drone operators; and (4) briefly outline two recommendations for a more robust legal framework for the drone program…”:  One, give the Military control of CIA program and combine their (purported) respective kill lists; OR two, publicly announce Articles 43 and 44 of the 1977 Additional Protocol I of the Geneva Conventions, which might grant additional legitimacy under international law to buttress the drone program.

–Carafano, James Jay. “UN takes aim at US with misguided Drone Probe.” The Washington Examiner, 2/10/13. http://washingtonexaminer.com/jay-carafano-un-takes-aim-at-us-with-misguided-drone-probe/article/2521103

Author is director of the Douglas and Sarah Allison Center for Foreign Policy Studies and the deputy director of the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation. Here he is appalled that the UN would investigate a nation, “with a record pretty much unmatched for transparency, accountability and the rules of law.” New technology does not change the rules by which we fight. He addresses the Just War doctrine and the standard of proportionality. He suggests, with reference to his colleague Stephen Groves, that the UN rapporteur will not leave the United States alone until it can promise no civilian causalities through drone strikes. This of course is an impossible guarantee as civilian causalities are a product of warfare.

–Carafano, James Jay. “The Future of Drones.” 3/25/13. The Heritage Foundation. http://www.heritage.org/research/commentary/2013/3/the-future-of-drones

Carafano posits five main questions: “Will drones fly over friendly skies?” The simple answer is yes, there is a huge market for them and the FAA has already been tasked to incorporate them by 2015. “Will American’s drone wars drone on?” This is inevitable, as it has shown to be most effective.  “Will the UN get a vote?” Carafano is adamant they will not. He insists that current US drone program does not violate International law, and the UN’s effort here is a case of “lawfare.” Next, “Will we get new laws of war?” The answer is no because the laws of war were written to factor in changes in technology. The final question is whether to export the sales of UAVs on the global market.  The subject needs more analysis. The demand for drones is growing and could boost economic growth.  The United States does have restrictions on the sale and related software and technology associated with UAVs, but if it doesn’t get out in front of the market others will.

–Columbia Law School, Human Rights Institute. “Targeting Operations with Drone Technology: Humanitarian Law Implications.” Background paper for the annual meeting of the American Society of International Law. March 25, 2011. [CSPAN’s coverage: http://www.c-spanvideo.org/program/298673-1]

The paper divides the major legal issues into three questions: What is the nature and scope of the armed conflict? (e.g., beyond Afghanistan? “Related” to Taliban?) Who may be targeted?  (e.g., civilians acting as belligerents?) Who conducts the targeting? (e.g., CIA civilians?). The paper and panel end with calls for more clarity on all three issues.

–Cortright, David. “License to Kill” Cato, Jan. 9. 2012. http://www.cato-unbound.org/2012/01/09/david-cortright/license-kill

The author is Director of Policy Studies at the Kroc Institute for International Peace Studies at Notre Dame University. Here he develops a mostly negative stance on drone warfare, presenting the subject through four major questions. One, do drones promote the use of force as a solution? Yes, they are psychologically seductive and cost-cutting. Two, are mistakes in targeted killing likely? Yes, intelligence on the ground is questionable. The Bureau of Investigative Journalism has the ‘best’ data: “Since the drone war began in Pakistan in 2004, more than 2,300 people have been killed and at least 1,150 wounded in these strikes. The Bureau estimates that the dead could include as many as 780 civilians, including as many as 175 children.” Three, does drone warfare effectively combat terrorism? The author suggests that the problem is better served within a political and law enforcement paradigm, citing a 2008 RAND report among other studies. Finally, is there enough oversight? No. Obama simply does not want to detain suspects (a la Bush and Guantanamo), so he resorts to killing.

–Cullen, Peter M. “The Role of Targeted Killing in the Campaign Against Terror.” Paper submitted for the Masters in Strategic Studies at U.S. Army War College. March 13, 2007. http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA471529  

Colonel Cullen is the Staff Judge Advocate, 101st Airborne Division (Air Assault) at Fort Campbell. This is a concise defense of targeted killing with drones on legal, moral, and tactical grounds. Criticism is presented concerning all three issues and countered. The paper ends with proposed guidelines:

Who may be targeted? AQAM, but no political leaders and no U.S. citizens, and the U.S. must obtain authorization from the host country. Under what circumstances? When the standard of imminence is met, capture not possible, and as a last resort. Who should conduct the operations? The CIA should provide intelligence and either the U.S. military or host country’s military should take the leading role. How should they be conducted? According to the laws of war without assuming an unreasonable standard. Who should approve an operation? Preferably the President through a ‘finding’ with normal congressional oversight, and preferably with authorization of the host country. An additional FISA-like court is superfluous. To conclude, the author calls for more transparency and explanation to the public of the legality, morality, and effectiveness of the operations; otherwise we stand to lose the public information campaign. 

–De Beer, Lydia, ed. Unmanned Aircraft Systems (Drones) and the Law. Wolf Legal Publishers: Nijmegen, Netherlands, 2011.

From the website: “This book will first zoom in on Lawful conflicts between Nations based on the United Nation charter. Second, on International Humanitarian law of war based on the first Geneva protocol. Moreover, the legality of Targeted Killing with the use of unmanned systems will be discussed. This introduction on the subject will be followed by relevant selected documents.”

–Defense Science Board, DoD. “The Role of Autonomy in DOD Systems.” Task Force Report of July 2012. http://www.fas.org/irp/agency/dod/dsb/autonomy.pdf

This study for DoD argues that immediate counter-terrorism needs and the desire to minimize the human element drives current UAV acquisitions and use. It stresses the shortcomings of this approach and need to rethink and plan longer-term and more broadly.

From Paul Kaminski, Chairman of DSB:

“The Task Force has concluded that, while currently fielded unmanned systems are making positive contributions across DoD operations, autonomy technology is being underutilized as a result of material obstacles within the Department that are inhibiting the broad acceptance of autonomy and its ability to more fully realize the benefits of unmanned systems. Key among these obstacles identified by the Task Force are poor design, lack of effective coordination of research and development (R&D) efforts across the Military Services, and operational challenges created by the urgent deployment of unmanned systems to theater without adequate resources or time to refine concepts of operations and training… The true value of these systems is not to provide a direct human replacement, but rather to extend and complement human capability by providing potentially unlimited persistent capabilities, reducing human exposure to life threatening tasks, and with proper design, reducing the high cognitive load currently placed on operators/supervisors.”

–Deltek. “Unmanned Aerial Systems (UAS) Market Overview.” July 18, 2012. http://iq.govwin.com/corp/downloads/Deltek-Unmanned-Aerial-Systems.pdf

Deltek is a consulting firm. This is a series of charts and graphs (for presentation) showing all facets of DoD UAV acquisitions, inventory, contractors, budget, and use over the past 5-10 years. The data is rich and covers aerial, ground, and maritime systems. The series ends with trends and challenges looking ahead, including integration into the NAS, space use, and cybersecurity of drones.  

–Denniston, Lyle. “Constitution Check: Will drone policy be tested in court?” National Constitution Center, May 29, 2013.  http://blog.constitutioncenter.org/2013/05/constitution-check-will-drone-policy-be-tested-in-court/

The author is a legal journalist, author, and professor. He is the National Constitution Center’s Adviser on Constitutional Literacy. This report looks at ‘al-Aulaqi v. Panetta’ that was filed by Anwar al-Awlaki’s father to challenge the legality of Obama’s drone policy. The lawsuit, filed with district court of Judge Rosemary M. Collyer, holds government officials personally responsible and seeks recovery of damages for three of the four acknowledged kills of September 30, 2011. A hearing is set for July 19 on the government’s motion to dismiss the case. The author sketches the Justice Departments arguments to have the case dismissed. The case is complicated by the fact that Attorney General Holder’s letter to Congress explains the legality only of the Anwar hit, adding that the other kills were “not specifically targeted by the United States.”

–Department of Justice of the United States, “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’ida or an Associated Force.” White paper (undated).

–Directorate-General for External Policies, Policy Department, European Parliament. “Creating Accountability? Recent Developments in the U.S.’s Policy on Drones.” Policy Briefing, March 2013.

This short report is divided into three sections: the drone controversy in the U.S., global reactions to the drone controversy, and options for the EU and European Parliament. The paper is mostly descriptive of the present state of practice and debates in the U.S. and beyond, and calls for greater EU involvement. It concludes with a call for an internationally binding treaty.

–Dworkin, Anthony. “Drones and Targeted Killing: Defining a European Position.” Policy Brief for European Council on Foreign Relations (July, 2013).

Author is senior policy fellow on human rights, democracy, and international justice at ECFR. Drone technology is proliferating into the EU and beyond. This paper argues that the EU has not been active enough in responding to America’s drone warfare, nor articulated a viable alternative standard. He proposes that lethal force should only be used outside conventional operations in the face of imminent threats to innocent life. He considers Obama’s stance too permissive, and describes the notion that the U.S. is at war with a loose network of terrorist groups as “anomalous.” He calls for pressure on America toward transparency and restriction of strikes.

–Enemark, Christian. Armed Drones and the Ethics of War (Routledge, 2013).

The author is associate professor in the National Security College at Australian National University. He is interested here in the move from the ‘heroic’ to ‘post-heroic’ in warfare that drones represent, insofar as the drone operator does not experience the same risk as his combatant. Also, whether drones lower the bar for the use of force.

From the Routledge site: “This book considers the use of armed drones in the light of ethical principles that are intended to guard against unjust increases in the incidence and lethality of armed conflict. The evidence and arguments presented indicate that, in some respects, the use of armed drones is to be welcomed as an ethically superior mode of warfare. Over time, however, their continued and increased use is likely to generate more challenges than solutions, and perhaps more harm than good.”

–Etzioni, Amitai. “The Great Drone Debate.”Military Review. March-April 2013. http://icps.gwu.edu/files/2013/03/Etzioni_DroneDebate.pdf

The author is professor of international relations at George Washington University. The paper is a mostly positive review of drone warfare that addresses major criticism. For example, it is impossible to know the actual percentage of civilians who are victims of drone strikes. Many who have weighed in get their information from local official and media, and neither is reliable. The areas in which the strikes happen are too remote for independent observers or are too dangerous. Etzioni discusses the intelligence JSOC needs before it can conduct a strike; it is presumed the CIA uses similar criteria but that information is not known because of the secrecy of the program. He treats the JD’s White Paper, and the issue of U.S. force in nations not formally at war.

Etzioni concludes with a strong defense of drones by stressing that the major moral issue is whether or not to go to war [not whether or not to use drones]. If that decision is made in the affirmative, then drones reduce American casualties, and allow the U.S. to deploy a lighter footprint, remain flexible, and hold high accountability. Drones may also allow the U.S. to intervene in humanitarian crises more readily.

–Eviatar, Daphne. “Obama’s Drone Policy Misreading International Law.” Politico. 5/3/12. http://www.politico.com/news/stories/0512/75863.html

The author works for Human Rights First. Here she rejects CIA director (then White House Counterterrorism Advisor) John Brennan’s publicly made claim that Al-Qaeda or its ‘associate forces’ are legitimate military targets.  Eviatar argues that under international law, in a ‘non-international armed conflict’ (NIAC) only individuals or groups participating in direct hostilities or in a constant combat function are targets. So a doctor may be aiding Al-Qaeda and be a member but under International law would not be considered a lawful target.

She concludes: “True, a court may never force the U.S. government to change its policy. But by announcing a legal interpretation that stretches way beyond the accepted boundaries of international law, the Obama administration has essentially granted license to other countries to do the same. They can now declare members of groups they deem enemies to be targetable by drones, wherever they may be found — including in the United States.”

–Foust, Joshua. “Understanding the Strategic and Tactical Considerations and Drone Strikes.” American Security Project, Jan. 2013. http://americansecurityproject.org/featured-items/2013/understanding-the-strategic-and-tactical-considerations-of-drone-strikes/

The author is a journalist, author, and former analyst at the Defense Intelligence Agency. This report attempts a scientific analysis based on known strikes and measurable effects of various sorts. It is a good read in how limited that enterprise is, given the secrecy of the programs and unreliability and incompleteness of the data—the author repeatedly acknowledges this. It presents a mostly negative appraisal of U.S. policy, concluding that short-term gains—albeit significant—are compromised by long-term troubles caused by drone strikes.  

“Despite the fundamental weaknesses of all data about drone strikes, it is possible to indirectly measure some effects they have. This paper is intended to begin a new public discussion about how we can better understand the use of drone strikes and their effects. It looks at drones from two perspectives: the strategic level, where broad social and political activity takes place, and the tactical level, where individuals experience conflict and drones. In doing so, we aim to tighten the focus on data in the public debate – both what we can know with the right research and what we cannot reasonably know. There are some consequences of drone strikes that we can infer from the information we have on hand, and there are some that we cannot reasonably infer. In discussing this at two levels, we also demonstrate that drones are neither inherently “good” nor “bad” – it is the policy to use them that really matters.”[3]

Conclusion: More publicity and data—especially if the Pentagon takes over—is necessary. Meanwhile, “Where drone strikes are found to have a measurable effect, it tends to be temporary. Successful strikes correlate in some circumstances with a temporary reduction in the incidence and intensity of terrorist violence, but may also correlate with long-term increases in retaliatory attacks against local government and persistent instability. This suggests that while drones can manage the terrorist problem for a short time, they are not necessarily contributing to a long term reduction of the threat.”[16]

–Gertler, Jeremiah. “U.S. Unmanned Aerial Systems.” CRS Report for Congress R42136. Jan. 3. 2012. http://www.fas.org/sgp/crs/natsec/R42136.pdf

That author works at Congressional Research Service. This is a close look at DOD’s UAS programs and is mostly descriptive in nature. It outlines the various missions that employ UASs; lists major congressional considerations, including management and procurement, future applications, and legal concerns; and it looks to emerging UASs such as X-47b and UCLASS. It offers concise technical descriptions of all major UAS systems.

–Guiora, Amos N. Legitimate Target: A Criteria-Based Approach to Targeted Killing (New York: Oxford University Press, 2013).

The author is Professor of Law and Co-Director of the Center for Global Justice at the S.J. Quinney College of Law, the University of Utah. The book is about the lawfulness of targeted killing. Guiora defends current Israeli practice as mostly “criteria-based” but condemns U.S. practice—including the Bin Laden raid, which “violated national sovereignty” [67]—especially in light of the JD’s recent white paper. That offers a too “flexible definition of imminence,” he argues. [24] It allowed the CIA to claim that ‘no civilians’ have been killed in Pakistan [86]. Guiora promotes robust international law to supersede US practice. War lawyers should consult IL and a check-list of sorts when deciding in the moment whether to authorize a kill. [70-]

From Amazon: “Targeted killing decisions must reflect consideration of four distinct elements: law, policy, morality, and operational details, thus ensuring that it complies with principles of domestic and international laws. The author, writing from both personal experience and an academic perspective, offers important criticism and insight into the policy as presently implemented, highlighting the need for a criteria based decision making process in defining and identifying a legitimate target.”

–Groves, Steven. “Drone Strikes: The Legality of U.S. Targeting Terrorists Abroad.” 4/10/13. The Heritage Foundation. http://www.heritage.org/research/reports/2013/04/drone-strikes-the-legality-of-us-targeting-terrorists-abroad

The author is a senior research fellow at Heritage Foundation. He argues that all evidence suggests that the U.S. follows principles of necessity, distinction, and proportionality in drone strikes. The program conforms to international law. An additional ‘Drone Court’ to review names placed on list for possible strike will only raise more questions than give answers, would not be in position to properly answer them as the Admin/military/and intelligence organizations presently are, and interfere with executive authority. After withdrawal from Afghanistan, U.S. should continue to target terrorists according to AUMF rather than end its drone operations. Armed drones are particularly well suited to target enemy belligerents while minimizing the harm to civilian populations—as per the law of war.

–Groves, Steven. “The U.S. Should Ignore U.N. Inquiry Into Drone Strikes.”  1/25/13. The Heritage Foundation http://blog.heritage.org/2013/01/25/the-u-s-should-ignore-u-n-inquiry-into-drone-strikes/

US should ignore the UN probe into the drone program. The United Nations Human Rights Council has opened another investigation into the United States Drone program, this time by special rapporteur Ben Emmerson of the United Kingdom.  The investigation will be scheduled in three phases from the time the article was written to October of 2013. It will examine US drone strikes against Al-Qaeda and its partners in Afghanistan, Pakistan, Somalia, and Yemen.  Groves suggests the results of the probe will be the following: A strong recommendation that the United States refrain from targeting terrorists in Somalia or Yemen since there is no “hot” armed conflict there. The militants in these countries do not pose an imminent threat to the security of the US and therefore the self-defense would not apply under International law.  Finally the risk of civilian deaths is so great that it violates the principle of proportionality under international law.

The only way human rights activists will be satisfied with the drone program is if the U.S. either gets rid of it altogether, or can guarantee no civilian causalities.

–Hanson, Victor Davis. “Game of Drones.”  3/28/13. Hoover Institute.  http://www.hoover.org/publications/defining-ideas/article/143451

The author is senior fellow at Hoover Institute. This is a mostly descriptive overview of drones and U.S. counterterrorism strategy. It shows that drones remained under the public radar until recently: Obama expanded the program by a factor of six from the Bush administration; the strikes have been largely successful at taking out hundreds or perhaps thousands of terrorists plotting against the United States; and three American citizens  were assassinated by a drone strike in Yemen. Drones are “uniquely fitted” to Obama’s foreign policy, and as the budget cuts hit, we can expect continued reliance on the drone counterterrorism policy.

–Heller, Kevin Jon. “One Hell of a Killing Machine: Signature Strikes and International Law.” Journal of International Criminal Justice 11:1:89-119. http://jicj.oxfordjournals.org/content/11/1/89.short

The author is associate professor at University of Melbourne Law School. This article puts the focus on signature strikes in particular, the vast majority of drone attacks under Obama. “Section 2 explains why a signature strike must be justified under either international humanitarian law (IHL) or international human rights law (IHRL) even if the strike was a legitimate act of self-defense under Article 51 of the UN Charter.” The paper concludes that some signature strikes are legitimate and comply with the principle of distinction (IHL), but others violate that principle and may not amount to proper targets to begin with. As for IHRL: most of the signature strikes legit by IHL would violate IHRL’s insistence that individuals not be arbitrarily deprived of their right to life.

–Heyns, Christof and Knuckey, Sarah.  “Commentary: Explain the Drone Attacks.” 1/15/13. Article appears in January-February issue of C4ISAR Journal. http://www.defensenews.com/article/20130115/C4ISR01/301150012?Commentary-Explain

Heyns is U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, and Knuckey is director of the Project on Extrajudicial Executions and the Initiative on Human Rights Fact-Finding at the Center for Human Rights. Both are also professors of law.

This is a straightforward legal condemnation of Obama’s drone strikes. “Although U.S. officials have relied on the existence of an armed conflict against al-Qaida and the ill-defined ‘associated forces’ category as the basis for the legality of targeted killings, the U.S. government has presented little to no evidence to indicate that all strikes have in fact taken place against direct participants in hostilities or — if the category is used — against individuals who have a continuous combat function in an armed group that is a party to a recognized armed conflict. Strikes have also taken place in circumstances where it is far from evident that sufficient precautions in attack were taken or that the principles of proportionality and distinction were adequately observed.”

–House Committee on the Judiciary. “Drones and the War On Terror: When Can the U.S. Target Alleged American Terrorists Overseas?” Hearing on Feb. 22, 2013. http://judiciary.house.gov/hearings/113th/hear_02272013_2.html

Witnesses: John B. Bellinger, Roberg Chesney, Benjamin Wittes, Stephen I. Vladeck

–House Committee on Oversight and Government Reform. “Rise of the Drones: Unmanned Systems and the Future of War.” Hearing Before the Subcommittee on National Security and Foreign Affairs of the Committee on Oversight and Government Reform. Mar 23, 2010. https://www.fas.org/irp/congress/2010_hr/drones1.pdf

C Span: http://www.c-spanvideo.org/program/24093-1

Witnesses: Kenneth Anderson, Mary Ellen O’Connell, David Glazier, William C. Banks

– House Committee on Oversight and Government Reform. “Rise of the Drones II: Examining the Legality of Unmanned Targeting.” Hearing Before the Subcommittee on National Security and Foreign Affairs of the Committee on Oversight and Government Reform. April 28, 2010.

Witnesses: Kenneth Anderson, Mary Ellen O’Connell, David Glazier, William C. Banks

–Human Rights Watch. “Precisely Wrong: Gaza Civilians Killed by Israeli Drone-Launched Missiles.” 2009. http://www.hrw.org/sites/default/files/reports/iopt0609webwcover_0.pdf

This is a condemnation of Israel’s drone strikes in Gaza. From the website: “This 39-page report details six incidents resulting in 29 civilian deaths, among them eight children. Human Rights Watch found that Israeli forces failed to take all feasible precautions to verify that these targets were combatants, as required by the laws of war, or that they failed to distinguish between combatants and civilians. Israeli and Palestinian human rights groups have reported a total of 42 drone attacks that killed civilians, 87 in all, during the fighting in December 2008 and January 2009. ‘Precisely Wrong’ is based on field research in Gaza, where Human Rights Watch researchers interviewed victims and witnesses, examined attack sites, collected missile debris for testing, and reviewed medical records. The Israel Defense Forces turned down repeated Human Rights Watch requests for a meeting and did not respond to questions submitted in writing.”

–International Human Rights and Conflict Resolution Clinic at Stanford Law School and Global Justice Clinic at NYU School of Law. “Living Under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan.” Sept., 2012. http://livingunderdrones.org/wp-content/uploads/2012/10/Stanford-NYU-LIVING-UNDER-DRONES.pdf

This report is based largely on interviews with locals affected by drone strikes, and is highly critical of U.S. policy in Pakistan.

“In the United States, the dominant narrative about the use of drones in Pakistan is of a surgically precise and effective tool that makes the US safer by enabling “targeted killing” of terrorists, with minimal downsides or collateral impacts. This narrative is false. Following nine months of intensive research—including two investigations in Pakistan, more than 130 interviews with victims, witnesses, and experts, and review of thousands of pages of documentation and media reporting—this report presents evidence of the damaging and counterproductive effects of current US drone strike policies.”

–Issacharoff, Samuel and Pildes, Richard H. “Drones and the Dilemma of Modern Warfare.” In Drone Wars: The Transformation of Armed Conflict and the Promise of War, forthcoming (Cambridge University Press, 2013).  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2268596

The authors are professors of law at NYU. The paper argues that the legitimate use of military force is transforming from the post-WWII context in which enemies were defined as members of a group or army, and generally state-backed, to the individuation of personal responsibility handled on a case-by-case basis. The enemy is now increasingly a non-state actor, guerilla, insurgent, or terrorist operating in sometimes lawless regions. This transformation in defining and targeting the enemy more precisely/individually has its technological counterpart in drones, and legal counterpart in the recent statements (of Brennan or Koh) that update the legality of targeted killing and drone warfare. The authors see a movement toward more judicial oversight and possibly courts, but not necessarily the transfer of terrorism cases to criminal law.

–Johnson, Jeh. “A ‘Drone Court’: Some Pros and Cons.” 3/18/13. Keynote speech at Center on National Security at Fordham Law School. http://centeronnationalsecurity.org/node/571

Johnson is former Pentagon General Council. He claims that the JD’s white paper left the public with more questions than answers on issues concerning hot/cold battlefields and the legality of targeting U.S. citizens, and he believes that a national security court comprised of a bipartisan group of federal judges could be the answer. He delineates three possible courts:

“First, a court to review and approve all targeted lethal force by the U.S. government away from any so-called “hot battlefield,” against a terrorist, including in the course of a congressionally-authorized armed conflict conducted by the U.S. military;

Second, a court to review and approve targeted lethal force by the U.S. government away from the “hot battlefield,” but only against a terrorist who is also U.S. citizen, again including in the course of a congressionally-authorized armed conflict conducted by the US military; and

Three, a court to review and approve targeted lethal force by the U.S. government away from any “hot battlefield,” against a terrorist who is a U.S. citizen, but only in instances not part of a congressional-authorized armed conflict conducted by the U.S. military.”

Johnson then labels himself a “skeptic” and proposes three alternatives: the first is more transparency and de-classification, which he considers unlikely. The second is to confine all lethal force within congressionally-authorized warfare. The third is that the President institutionalizes his decision-making process as something internal to the Executive branch. 

–Johnston, Patrick B. and Sarbahi, Anoop K. “The Impact of U.S. Drone Strikes on Terrorism in Pakistan and Afghanistan.” Rand, July 2013.

This study focuses on the period 2004-2011 and seeks to determine if the U.S. program has been militarily effective or whether blowback incites more terrorism. The authors conclude that the strikes, however unpopular, correlate with a decreasing incidence and lethality of terrorist activity.

–Kaye, David. “International Law Issues in the Department of Justice White Paper on Targeted Killing.” Insights, Feb. 15, 2013. A journal of the American Society of International Law. http://www.asil.org/pdfs/insights/insight130215.pdf

The author is professor of law at University of California, Irvine. This is a close review of the law explained in the DOJ’s leaked white paper. It determines that the paper focuses more on domestic law than international law—granted that Harold Koh has addressed IL elsewhere—and leaves important questions unanswered. Namely, who is the “high-level official” that determines a target is an imminent threat? What are the steps to determine if capture is infeasible? How are decision-makers held accountable? Meanwhile, many are calling for a ‘drone court.’ Kaye also warns that if the international community is not satisfied that the U.S. drone program conforms to IL, the UN Human Rights Council or other states will formally challenge U.S. behavior.

–Koh, Harold Hongju. Speech at the Annual Meeting of the American Society of International Law. 3/25/10. US State Department.  http://www.state.gov/s/l/releases/remarks/139119.htm

Koh is Legal Adviser for the US Department of State. He divides his talk into four major sections: the role of the legal advisor, the strategic vision [of the Obama Administration], current legal challenges, and a short conclusion. The speech is wide-ranging and covers detention, targeting, and prosecution, and the issue of drones appears within a sub-section titled, ‘use of force.’

“What I can say is that it is the considered view of this Administration—and it has certainly been my experience during my time as Legal Adviser—that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.” [Koh’s emphasis].

He counters four particular challenges to Obama’s strategy: that targeting is inherently illegal, that drone technology is inherently problematic, that the targeting is extra-judicial, and that the targeting amounts to assassination under domestic law. 

–Lerner, Ben. “Judging ‘Drones’ From Afar”. The American Spectator. 3/25/13. http://spectator.org/archives/2013/03/25/judging-drones-from-afar/

Lerner is VP for Government Relations at the Center for Security Policy. He argues that Obama has a predilection for international laws, but that the U.S. should not sign an international agreement regulating UAV use.  The technology has already proliferated, and other major players will not sign such a law. The U.S. would effectively become “boxed in.” Witness China’s manipulation of the Law of the Sea Treaty. The U.S. conducts warfare under customary IL and the Geneva Conventions, all of which are sufficient to cover UAV use in battle. Given the ongoing UN investigation into U.S. drone warfare, Obama should maintain that the U.S. will not sign any proposed treaty governing drone use.

–Masters, Jonathan, “Seeking Daylight on U.S. Drone Policy.” Council on Foreign Relations, March 29, 2013. Interview with John B. Bellinger. http://www.cfr.org/counterterrorism/seeking-daylight-us-drone-policy/p30348

On Bellinger, see above.  Two key points from the interview: One, the President has both legislative/congressional authority (AUMF after 9/11) and constitutional authority to defend and protect the US more broadly [not to mention possible UN-based authority of self-defense]. On drone use, Obama leans more on his congressional authority, whereas Bush had referred more to his constitutional authority. But that different is merely political: “95 percent of its [Obama Admin’s] counterterrorism policies, and the legal basis therefore, are the same as the Bush administration’s.” Two, Bellinger does not believe the judiciary should get more involved in the form of ‘Drone Courts,’ or that new laws are necessary; he does call for more oversight and involvement.

Obama has opened the Pandora’s Box for the U.S. and abroad on the issue of drones. The interview ends with a discussion of hunger strikes in Guantanamo.

–May, Larry. “Targeted Killings and Proportionality in Law: Two Models,” Journal of International Criminal Justice 11:1 (March, 2013), 47-63.

The author is professor of philosophy, law, and political science at Vanderbilt University. The paper treats three problems: drones in domestic space and due process issues, drone killing and international humanitarian law, and the possibility of criminal prosecution (under ICC) for such targeted killings that are not proportionate.

–Nanda, Ved P. “International Law Implications of the United States’ ‘War on Terror,’” Denver Journal of International Law and Policy 37:4 (2009), 513-537.

The author is professor of law at the University of Denver. This is the introduction to a Symposium of essays on the War on Terror [video available]. Aside from introducing the major arguments of the other 6 papers, it outlines the general thrust of the entire collection. It specifies select counter-terrorism policies and practices under G.W. Bush and the new Obama administrations: detention, interrogation techniques, military commissions, extraordinary rendition, and targeted killing. Obama wishes to revise his predecessor’s policies on all but the last. The author focuses in brief on UAV strikes and the ongoing debate over their legality, recognizing that Obama continues targeted killing outside the region of armed conflict, thus adhering to the Bush paradigm of a ‘global war on terror’ that Obama otherwise discounts. The author calls for the U.S. to tread carefully, and for international lawyers to get ahead on this issue, by “defining the limits of targeted killing’s legitimate use and distinguishing it from assassination and extra-judicial execution so as to protect the strength of those legal rules and norms.” [533]

–O’Connell, Mary Ellen. “The International Law of Drones.” Insights, 11/12/10. A journal of the American Society of International Law. http://www.asil.org/insights101112.cfm

The author is Robert and Marion Short Chair in Law and Research Professor of International Dispute Resolution—Kroc Institute for Peace Studies at the University of Notre Dame. She raises flags about the US’s current targeted killing rationale, but otherwise believes that current international law is adequate to regulate drone warfare. She calls rather for more research on the intelligence and psychological dimensions: “It should be remembered that while drone operators may not be at risk, intelligence personnel and people who maintain drones on the ground may be in considerable danger. Additionally, anecdotal information indicates drone operators are seeing much more of the destruction that they cause thanks to the ability of drones to stay at an attack site and send back clear video footage. The toll on drone operators needs consideration.”

–Olney, Luke Andrew. “Lethal Targeting Abroad: Exploring Long-Term Effectiveness of Armed Drone Strikes in Overseas Contingency Operations.” MA Thesis, Georgetown University, 2011. http://repository.library.georgetown.edu/handle/10822/553552

This study concludes that drone strikes in Yemen and Pakistan have sparked increasing militant attacks against the respective local governments, though the author suspects that “more variables” are at play [iv]. The author has two policy recommendations: one, the Army include a more formal rubric for drone strikes into its FM 3-24 for counterinsurgency (2006), and that it review of military doctrine; and two, that drone strikes be placed within a larger ‘politico-military’ strategy that accounts for longer-term objectives. The appendices provide useful data on attacks in Yemen and Pakistan.

“Two cases are analyzed to determine the impact of drone strikes on host governments. The first case examines Yemen from January 2001 through September 2010. Data is evaluated on the drone strike that killed Abu Ali al-Harithi on November 3, 2002, and the U.S. cruise missile strikes on targets in Yemen on December 17, 2009, to determine the relationship between U.S. strikes and militant attacks on the Government of Yemen. The second case evaluates sustained drone strikes in northwest Pakistan from January 2004 to September 2010 and the relationship between strikes and militant attacks on the Government of Pakistan.”

–Posner, Eric. “Obama’s Drone Dilemma.” Slate. 10/8/12.

The author is professor of law at University of Chicago. This piece is critical of the Obama Administration’s policy in Pakistan. It suggests that government lawyers like Koh conform the law to the drone program after-the-fact, and suspects that something similar will occur again to legitimize an intervention in Iran. To conclude, Posner wonders why the international community is not as vocally opposed to Obama in Pakistan and it was to Bush in Iraq. The author suggests that Pakistan is not an oil rich nation, and that the world is coming to realize that legal arguments will not sway the U.S. from exercising its unmatched military might (since the fall of the USSR).

–President Barack Obama, “May 23 speech on National Security.” Transcript. Washington Post, May 23, 2013. http://www.washingtonpost.com/politics/president-obamas-may-23-speech-on-national-security-as-prepared-for-delivery/2013/05/23/02c35e30-c3b8-11e2-9fe2-6ee52d0eb7c1_story.html

Obama argues that the U.S. is returning to a “pre 9/11 state” in which counterterrorism offensives will be limited, dispersed, and outside the parameters of a ‘war on terror’ per se. He calls for the revision of the AUMF (and closing of Gitmo). He also defends targeted killing with drones as a method “least likely to result in loss of innocent life” and preferable to the twin extremes of doing nothing and introducing conventional manpower and equipment. He claims the new method is legal and just, but demands moral discipline. He declassified papers pertaining to the targeted killing of U.S. citizen Anwar al-Awlaki in the interest of transparency/accountability, and sketched a new protocol and standard of oversight (codified in a classified ‘Presidential policy guideline’). He implied that drone strikes would continue but at a slower pace according to a new military posture. 

–RAND Corporation, “Methodologies for Analyzing Remotely Piloted Aircraft in Future Roles and Missions.” Prepared for USAF, 2012. http://www.rand.org/content/dam/rand/pubs/documented_briefings/2012/RAND_DB637.pdf

This is a detailed report for the USAF on its AUVs offering models to help it evaluate its programs.  From the preface: “The time is ripe for the Air Force to consider additional roles for future RPAs, whether to help address capability gaps that are currently unfulfilled or to replace or complement manned systems in current missions. Thoughtful study is needed to identify promising mission areas, to consider potential platform alternatives, and to analyze how different options could contribute to specific missions and to overall campaigns in cost-effective ways. This documented briefing discusses a suite of tools and models developed by RAND Project AIR FORCE (PAF) researchers to help the Air Force think through these issues.”

–Rohde, David. “The Obama Doctrine: How the President’s Drone War is Backfiring.” Foreign Policy.com, Mar/Apr 2012. http://www.foreignpolicy.com/articles/2012/02/27/the_obama_doctrine?page=0,1&wp_login_redirect=0

The author is an investigative journalist for Reuters, and former reporter for the New York Times. The ‘Obama Doctrine’ has developed in opposition to Bush’s, and consists of a light military presence overseas, multilateralism when possible, and precision strikes. The major focus in this piece is drone strikes in Pakistan, where the author was for a time kidnapped (by the Taliban). The author stresses the blowback and backfiring of the Obama Doctrine, pointing out that Pakistan is arguably MORE unstable after Obama’s interventions, its citizenry more anti-American, and the government less willing to assist U.S. efforts in Pakistan and Afghanistan. 

–Royal United Services Institute (RUSI), “Hitting the Target? How New Capabilities are Shaping Intervention.” Mar. 2013. http://www.rusi.org/downloads/assets/Hitting_the_Target.pdf#

This is a collection of papers from mostly British authors. Two concluding questions are: do drones threaten civilized conduct of war? And do they lower the bar for conflict? The first answer is ‘no,’ there is nothing about the technology per se that contradicts international and human rights law. It is important to distinguish policy from technology. As for lowering the bar, it is unclear what the answer will be. Many have suggested that drones provide an easy and cost-effective way to apply force, but if the legal parameters allowing that force narrow, then things ‘balance out’ and drones will not promote more military force than otherwise.

Drones will not transform the nature of intervention as a whole, but mostly provide enhanced surveillance and on-call support for on-the-ground operations in at-risk states.

–Sadat, Laila Nadya. “America’s Drone Wars,” Case Western Reserve Journal of International Law 45 (2012), 216-234.

The author is professor of law and director of the Whitney R. Harris World Law Institute, Washington University in St. Louis. The paper provides a good review of the statements of Koh, Holder, and Brennan on drone warfare, and JD legal advisors involved in the al-Awlaki case. It discusses AUMF and other legal matters, specifying legal questions that remain unanswered in the Obama Administration’s stated policies. It argues that targeted killing outside of areas of active hostilities violates international law, and some targeting within spheres of war by drones may violate humanitarian principles of distinction and proportionality. Drones may also become a means to “terrorize a civilian population,” and therefore illegal. Finally, their use may contradict American values and long-term interests.

–Schmitt, Michael N. “Unmanned Combat Aircraft Systems and International Humanitarian Law: Simplifying the Oft Benighted Debate.” Boston University International Law Journal, Volume 30. July 4, 2012. http://ssrn.com/abstract=2184861

Schmitt is professor of law at United States Naval War College and Senior Fellow of the NATO Cooperative Cyber Defence Centre of Excellence. This paper looks at International Humanitarian Law and UCAS, approaching the subject according to four issues: Applicability of International Law, What and Who May be Targeted by UCAS, Restrictions on UCAS Operations, and Who May Conduct UCAS Operations. The author argues that there are few legal concerns specific to UCAS in battle per se. In fact, they provide greater protection of persons and objects than otherwise. Also, the rules of engagement and other guidelines are far more restrictive than people realize, including “sophisticated and robust” measures to determine potential collateral damage [618]. Perhaps in ‘hot’ wars the drones will require more specific legal attention.

–Senate Judiciary Committee. Subcommittee on the Constitution, Civil Rights and Human Rights. Hearing on “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing.” April 23, 2013. http://www.judiciary.senate.gov/hearings/hearing.cfm?id=b01a319ecae60e7cbb832de271030205

Witnesses: General James Cartwright, Farea Al-Muslimi, Peter Bergen, Rosa Brooks, Colonel Martha McSally, Ilya Somin.

–Sterio, Milena. “The United States’ Use of Drones in the War on Terror: The (Il)Legality of Targeted Killings Under International Law.” Case Western Reserve Journal of International Law, Oct. 26, 2012. http://ssrn.com/abstract=2167389

The author is professor of law at Cleveland State University. She reviews the AUMF and IL at issue and concludes that drones are most likely legal. The only outstanding issues are whether the U.S. is truly at war with al Qaeda, and whether the CIA can legally operate lethal drones. The author recommends that the military take more control. 

–Thurnher, Jeffrey. “The Law That Applies to Autonomous Weapon Systems.” Insights, Jan. 18 2013. Journal of the American Society of International Law. http://www.asil.org/insights130118.cfm

Thurnher is a Judge Advocate in the U.S. Army and a faculty member in the International Law Department at the U.S. Naval War College. Here he discusses the how future autonomous weapons systems—ones that will not require additional human intervention after activation—might comply with the laws of armed conflict, both weapons law and targeting law. The DoD and Human Rights Watch already have different conclusions on this issue, though Thurnher claims the jury is still out.

These are the two major weapons laws: the technology must not be indiscriminate or random in application of force, and it cannot cause unnecessary suffering by its very nature; these are the three major targeting laws: the technology must distinguish between civilians and combatants, must calculate military gain against any possible collateral damage, and must make real-time precautionary judgments.

–United States Department of Justice, White Paper, “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’ida or an Associated Force.” Undated. Provided to Senate Intelligence and Judiciary Committees in June, 2012.

–United States Army, “Eyes of the Army: U.S. Army Roadmap for Unmanned Aircraft Systems, 2010-2035.” U.S. Army UAS Center for Excellence, 2010.

The Army divides its roadmap into three periods: 2010-15, 2016-25, and 2026-2035. The near term addresses gaps in today’s UAS capabilities and emphasizes rapid integration of existing technologies; the mid-term focus is on integrating additional multipurpose UAS into all aspects of Army operations; distant future focuses on increasing capability while reducing size, power, and weight requirements of the technology. Near-term discussion is more substantive and based on current budget and experience, whereas the discussion about more distant future is conceptual. The roadmap will be revised every 2 years, so current and ongoing is this dimension.

This provides a close look at the many technologies involved in UASs (‘Drone’ is not used here). The Army uses a variety of drones for: reconnaissance and surveillance, security, attack, command/control/communications, combat support, and sustainment/supply/extraction of materials.

–Waxman, Matthew. “Going Clear: Drone Critics Wanted Greater Transparency. Careful What You Wish For.” Foreign Policy.com. March 20, 2013. http://www.foreignpolicy.com/articles/2013/03/20/going_clear

The author is law professor at Columbia University and a Fellow at the Hoover Institution and Fellow at Council on Foreign Relations. He held positions at the Department of State, Department of Defense, and National Security Council under George W. Bush. This article argues that moving all drone targeted killing to DoD will legitimize and entrench the program for the long-term. If critics are expecting to undermine the program by calling for the removal of the CIA, they better be ‘careful what they wish for.’

–Williams, Brian Glyn. “Private Approval, Public Condemnation: Drone Warfare’s Implications for Pakistani Sovereignty.” Terrorism Monitor 11:7 (April, 2013). http://www.jamestown.org/single/?no_cache=1&tx_ttnews[tt_news]=40697&tx_ttnews[backPid]=7&cHash=88db476b68cd2df314ccc081b0c319ea

The author is professor of Islamic History at UMass-Dartmouth. Here he argues that U.N. Rapporteur Ben Emmerson’s depiction of the U.S.’s role in Pakistan is simplistic. In fact, “far from being a simple case of aggression, the Pakistanis have covertly supported the drone campaign since its inception in 2004.” The paper reviews U.S.-Pakistani complicity on the issue of drone strikes against Taliban and al Qaeda in Pakistan since Musharraf, and includes voices in Pakistan in support of U.S. help. Pakistan is playing a “double-game” to protect itself from the criticism of its citizens. The author strongly condemns Emmerson for not recognizing this fact.

–Zenko, Micah. “Reforming U.S. Drone Strike Policies.” CFR. January, 2013. http://www.cfr.org/wars-and-warfare/reforming-us-drone-strike-policies/p29736 

The author is a fellow at the Council on Foreign Relations. This special report for CFR delineates four major issues confronting drone strike policy: coordination with broader U.S. foreign policy objectives; signature strikes and civilian casualties; transparency and oversight; and legality. Zenko’s recommendations are summarized in the Forward: “He argues that the United States should end so-called signature strikes, which target unidentified militants based on their behavior patterns and personal networks, and limit targeted killings to a limited number of specific terrorists with transnational ambitions. He also calls Congress to improve its oversight of drone strikes and to continue restrictions on armed drone sales. Finally, he recommends that the United States work internationally to establish rules and norms governing the use of drones.”

–Zenko, Micah. “Transferring CIA Drone Strikes to the Pentagon.” Policy Innovation Memorandum No. 31. CFR. April, 2013. http://www.cfr.org/defensehomeland-security/transferring-cia-drone-strikes-pentagon/p30434?cid=nlc-publications-publications_quarterly-link22-20130507&sp_mid=41457596&sp_rid=

This paper explains the problem of having ‘One Mission, Two Programs’ (DoD and CIA). It offers a strong recommendation to move operations more completely to the Military (as Title 10). This will enhance national security in the following ways:  “Improve the transparency and legitimacy of targeted killings, including what methods are used to prevent civilian harm; Focus the finite resources of the CIA on its original core missions of intelligence collection, analysis, and early warning; Place all drone strikes under a single international legal framework, which would be clearly delineated for military operations and can therefore be articulated publicly; Unify congressional oversight of specific operations under the armed services committee, which would end the current situation whereby there is confusion over who has oversight responsibility; Allow U.S. government officials to counter myths and misinformation about targeted killings at home and abroad by acknowledging responsibility for its own strikes; Increase pressure on other states to be more transparent in their own conduct of military and paramilitary operations in nonbattlefield settings by establishing the precedent that the Obama administration claims can have a normative influence on how others use drones.”