Oliver Willis, whose writing I respect quite a bit, wrote a piece today that I disagreed with, on the justification for our use of drones in going after elements of al-Qaeda around the world. We had, I think, a civil discussion about it on Twitter afterward, and it left me with some questions for those (particularly liberals) who support this policy. Drones are a hot button right now, after protesters repeatedly interrupted John Brennan’s confirmation hearings yesterday, and of course in the wake of the release of the DOJ’s “white paper” describing the legal process for determining whether or not to order drone strikes against American citizens aiding al-Qaeda overseas. Some are angry with the Obama Administration and arguing that the targeting of American citizens in particular is unconstitutional.
I come at this from a different perspective. I can’t find a justifiable reason to differentiate between American citizens and non-citizens in drone policy, as many seem to be doing. American volunteers fighting for Germany in WWII, and there were some, were not treated any differently by American forces than any other German fighters, and why would they be? Enemy fighters are enemy fighters, whatever their passports say. Moreover, the Fifth and Sixth Amendments, guaranteeing due process and jury trials, talk about “person” and “the accused,” but nowhere do they indicate that anyone’s citizenship is relevant in determining whether or not these rights apply. I also see no productive outcome from attacking the Obama Administration over the program, because they, like any other presidential administration, are only going to take as much power as Congress allows them to take. Congress has very consciously gone utterly AWOL in overseeing executive authority with respect to the “War on Terror,” but only Congressional action can rein in a president’s authority; no president is going to voluntarily surrender powers that Congress or the courts won’t take away. Congress needs to start by repealing its 2001 blanket Authorization for Use of Military Force and replacing it with an authorization that doesn’t give the executive branch license to do whatever it wants, for as long as it wants to do it, in the name of “fighting terror.”
What really bothers me in all of this is that American is now consistently engaging in behavior that, in almost any other context, would be absolutely considered acts of war. In addition to Afghanistan, where we are still the occupying force, we have active drone strike programs in Pakistan, the Yemen, and Somalia (where we’ve effectively been in a low-level war since 2006). We’re known to have engaged in at least one significant cyber-attack against Iranian nuclear infrastructure. No open state of hostility exists between America and any of those four nations (each of whom is notable for their lack of military power relative to America, and, in the case of Pakistan and the Yemen, for their dependence on American foreign aid), leaving open the possibility that we could decide do similar things in more countries if we deem it necessary. If those nations object, as Pakistan has done, we justify it as part of the “War on Terror” and point to the AUMF, as though American law trumps other nations’ sovereignty, and as though our “War on Terror” were some sort of objective and principled effort to root out all terrorism in the world, which is plainly a load of crap. Since the determination as to who is or is not a legitimate target for drone strikes is made entirely within the executive branch with virtually no transparency in the process, even other branches of the American government, to say nothing of international bodies or other nations, have no opportunity to respond to or even be aware of how these determinations are made.
So I have some questions for the supporters of our drone policy:
- Does American law trump other nations’ sovereignty in all cases, is it specific to the War on Terror and/or these particular nations, or is it a case-by-case determination?
- Should America limit its use of drones to nations whose governments have agreed to allow such attacks on their soil, or should we be free to bomb any country where suspected al-Qaeda elements are located? What about cases where governments agree to allow the attacks, but only after America has coerced that agreement, say by threats of aid cuts or promises of additional aid?
- Circumstances of a terrorist organization’s presence in a particular country may vary. Should American drone policy differentiate between nations that actively harbor terrorists and nations in which terrorist groups are located due to the weakness of the central government?
- Suppose the Pakistani government determined that elements in Saudi Arabia were organizing and/or funding al-Qaeda affiliates in Pakistan that were seeking to destabilize and overthrow the current Pakistani government and replace it with a theocratic despotism. Pakistan’s government, in an internal review, determines that these elements pose a clear and present danger to Pakistan and thus are legitimate military targets. Would Pakistan be justified in launching missile attacks against those al-Qaeda affiliated elements in Saudi Arabia? Why or why not? How should Saudi Arabia respond if they did so?
- Suppose the Chinese government determined that Tibetan separatist groups, which it contends are terrorist organizations, were being supported or funded within the United States. It made these determinations in an internal review and decided that those elements were legitimate military targets. Would China be justified in launching missile attacks against those targets in America? Why or why not? How should America respond if they did so?
- Would Iran be justified in launching a cyber-attack against a critical part of America’s infrastructure? Why or why not? How should America respond if they did so?
- What if we determined that important elements of al-Qaeda had relocated from Pakistan to the Xinjiang Autonomous Region in China, hiding amongst the Uyghur population there? If China were unable or unwilling to pursue these targets themselves, would America be justified in launching missile strikes into Chinese territory? If so, should (and would) America do it?
- Would you agree with the notion that the argument for drones ultimately comes down to some form of the “America as superpower” principle, meaning that America is both the only nation on Earth that can enforce some sort of international law and order against super-national terrorist groups, and/or that America is so militarily powerful that it can attack anything, anywhere, with impunity?
- If you agree that America must act as the enforcer of international law (such as it is), would you not agree that one crucial international law ought to be that one nation cannot bomb another nation at will, i.e., without making a case for such action and in the absence of a formal declaration of hostilities?
- Should the executive branch of the American government be the final global judge as to which individuals/organizations ought to be considered “terrorists”?
I can’t answer these questions in a way that justifies our drone policy but doesn’t make America look like a hypocritical global hegemon and/or bully (if you assume, as I do, that our response to AQ operating in Pakistan or the Yemen would be different from our response to AQ operating in, for example, China). Maybe someone else can.