OUT OF THE SHADOWS
When it comes to lethal drone strikes against foreign targets, America’s government and Congress should be aware that soon they may no longer be their sole domain. China and Russia are just two of the powers that may quickly launch their own fleets of unmanned aircraft against suspected enemies. It is not difficult to imagine a near future in which a Russian drone targets a Chechen radical in neighbouring Georgia, who is apparently plotting an imminent strike on Russian objects.
Experts have warned Congress that unless America sets clear, internationally accepted rules for its own drone strikes, it cannot condemn Russian or Chinese aerial killings with any credibility. This advice has also been repeated, privately, by some diplomats from America’s allied countries. In fact the legal foundations of Barack Obama’s war on terror are raising more and more concerns. A few phrases passed by Congress days after the September 11th 2001 gave the president broad, war-making powers in the name of self-defence.
The other reason why such allies want the president to lead America back into higher moral ground is that they are worried about their own reputations, if they help conduct drone attacks. Even supportive governments face some hard choices about passing intelligence to America, when drone strikes may result in public anger and even lawsuits.
Recently Mr Obama moved to answer both hostile critics and anxious friends. He made it clear that drone strikes would continue. He argued that secret, precise drone strikes carry lower risks of civilian casualties and diplomatic repercussions than attacks with conventional aircraft or special forces. However, because such missions arouse less public interest than sending troops overseas, they can lead a president and his team to view drone strikes as the only possible cure for terrorism.
The president also spoke of reducing the boundless, militarized war on terror that he inherited. He emphasized using law enforcement, intelligence and foreign allies to combat threats not so different from the ones America faced before September 11th 2001. The president aired the latest episode of his long argument with Congress over the closure of the Guantánamo Bay prison camp in Cuba. He offered to move a few more detainees but didn’t answer the hardest question: what to do with those who are too dangerous to release, but who cannot be prosecuted for lack of evidence. Instead of announcing the government’s clear decision about it, he offered one piece of news: the Pentagon has asked to designate a site on American soil for military commissions to try and sentence Guantánamo detainees.
Yet, above all else, the US president described rules for lethal drone strikes, which may bring worldwide effects. America now only acts “against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured – the highest standard we can set.” Officials added a further comment. In a shift backed by Obama’s advisors, the government would prefer to move away from CIA strikes, which are secret and deniable, towards drone strikes controlled by the armed forces, which would be more transparent. In addition to supervision by Congress, Mr Obama suggested new controls: perhaps a special court with powers to authorize killings, or an independent overseer within the executive branch. Mr Obama also left himself some room for manoeuvre, for example over how an imminent threat should be defined.
Much damage has already been done to America’s diplomatic standing worldwide and to its image among Muslims. But if, by binding America unilaterally to higher standards, Mr Obama helps set norms for other countries as they acquire drones, that will be an invaluable step forward. Such example-setting is a slow process but this is how customary international law is made. The war on terror has lasted for so long and shows no sign of ending. Only if America can describe the international legal framework for its own strikes will it be able to shape the international laws of war in the future, and these laws will certainly need change because of the swift spread of drone technology.