America's Drone Wars

Article excerpt

CONTENTS

I.   INTRODUCTION

II.  THE OBAMA ADMINISTRATION "LAWYERS UP"

III. SOME PRELIMINARY LEGAL QUESTIONS RAISED BY THE USE OF
      DRONES BY THE UNITED STATES

      A. What Legal Regime Justifies the Use of Lethal Force Against
         Terrorists or Taliban Armed Forces

      B. Questions as to the Permissible Targets

      C. Questions Regarding the Processes Used to Create the "Kill
         List"

      D. Questions as to Whether Drone Strikes Are Lawful Methods of
         Warfare

      E. Questions Regarding the Intended Purposes of the Strikes

IV.  ETHICAL AND MORAL QUESTIONS RAISED BY U.S. TARGETED
      KILLING OPERATIONS

The U.S. practice of targeted killing by remotely-piloted unmanned vehicles (1) in Afghanistan, Pakistan, Yemen, Libya, Iraq and Somalia--popularly referred to as "America's drone wars" (2) --raises the question of the application of humanitarian law principles to the conduct of America's longest-running war. Yet, it not only presents complex issues of international law but difficult moral and ethical questions. Administration officials and some academics and commentators have praised targeted killing as effective and lawful. Others have criticized it as immoral, illegal, and unproductive. This article concludes that conducting targeted killing operations outside areas of active hostilities violates international law. In addition, even in areas in which targeted killings may be lawful, particular uses of drones may violate international humanitarian law if insufficient attention is paid to principles of proportionality and distinction in their use, particularly as regards decisions of whom, how, and when to target an individual for death. Moreover, to the extent that drones become a means to terrorize a civilian population, their use may be prohibited by international humanitarian law. Finally, decision-makers in the United States must engage not only with the question whether their use of targeted killing is legal, but is a policy that resonates with America's deepest values and promotes U.S. long term interests, including its interest in international peace and justice. (3)

I. INTRODUCTION

In November 2008, the Taliban captured New York Times journalist David Rhode, along with two Afghan colleagues, and held them for seven months in North and South Waziristan, the focus of the American drone campaign at the time. Rhode was lucky enough to escape from his captors and penned a series of gripping articles about his captivity that appeared on the front pages of the New York Times in 2009. (4) His articles recount an astonishing tale of his capture, the death threats he endured, and the hardships he faced; but what is perhaps even more extraordinary are his insights into the minds of his Taliban captors. In particular, because he was being held in an area being patrolled by drones and in which drone strikes were taking place with regularity, he wrote about the experience of being on the ground while U.S. drones circled overhead. He recently summarized this experience in Reuters, observing:

   Throughout our captivity, American drones were a frequent
   presence in the skies above North and South Waziristan.
   Unmanned, propeller driven aircraft, they sounded like a small
   plane--a Piper Cub or Cessna--circling overhead. Dark specks
   in a blue sky, they could be spotted and tracked with the naked
   eye. Our guards studied their flight patterns for indications of
   when they might strike....

   The drones were terrifying. From the ground, it is impossible to
   determine who or what they are tracking as they circle
   overhead. The buzz of a distant propeller is a constant reminder
   of imminent death. Drones fire missiles that travel faster than
   the speed of sound. A drone's victim never hears the missile
   that kills him. (5)

Rhode was almost beheaded by his captors after a drone strike took place near his prison, inflaming his captors. …