The Legal And Moral Issues Of Drone Use
NEAL CONAN, host:
This is TALK OF THE NATION. Im Neal Conan in Washington.
For several years now, the U.S. has conducted a clandestine war in Pakistan against al-Qaida and the Taliban, and after President Obama took office, the CIA sharply increased its use of unmanned aircraft, or drones, to attack commanders, fighters and well, so often members of their families. Inevitably mistakes kill people totally unconnected to either group.
After questions about the legality of what some call extrajudicial killings, targeted killings or assassinations, the Obama administration issued a legal justification last week. The State Department's top lawyer, Harold Koh, stated in part 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. You can read that statement on our Web site.
So is this campaign legal? Is it effective? Is it wise? We want to hear from you. Give us a call, 800-989-8255. Email us, email@example.com. And you can join the conversation at that Web site. Go to npr.org. Just click on TALK OF THE NATION.
Later in the program, Tavis Smiley joins us to talk about his PBS program on Martin Luther King, Vietnam and how his call to conscience echoes to Afghanistan and Iraq.
But first, the drone war. Peter Bergen joins us here in Studio 3A. He's a journalist and a senior fellow at the New America Foundation, for which he compiled an analysis on drones with Katherine Tiedemann back in February. Peter, always nice to have you on the program with us.
Mr. PETER BERGEN (New America Foundation): Nice to see you, Neal.
CONAN: And so CIA director Leon Panetta says the use of drones is a big part of the campaign that has al-Qaida on the run. Is this campaign effective?
Mr. BERGEN: Well, certainly, it's been amped up. I mean, under President Bush there were 45 drones strikes in eight years, and under Obama in 2009, there were 51. And already this year, the rate is going up again.
Is it effective? Yes, in some senses. It's taken, killed, a number of al-Qaida leaders, two leaders of the Pakistani Taliban, leaders of other militant groups. Of course it's met with a great deal of opposition in Pakistan, where it's seen as a, you know, a kind of - you know, Pakistani sovereignty is a major issue. Only nine percent of Pakistanis have a favorable view of all this.
Certainly there are some civilian casualties. There's a debate about it. We published a paper coming down, based on reliable media reports, that the casualty rate seems to be about 24 percent. But others have said it's 98 percent, with very little evidence of that.
CONAN: What do you mean casualty rate?
Mr. BERGEN: Civilian casualty rate, yeah.
CONAN: Twenty-four percent of those killed are civilians?
Mr. BERGEN: Yeah.
CONAN: And about how many people are we talking about?
Mr. BERGEN: Well, at least 1,000, you know, in the past nine well, this started really in 2004, so - in Pakistan, but - so 1,000-plus.
CONAN: And this campaign is obviously on the territory of, well, ostensibly an American ally, Pakistan.
Mr. BERGEN: Indeed, and there was a lot of pushback from the Pakistani government and military about this program. Of course, it then became clear that a number of the drones actually are launched in Pakistan, and a big point, a major point, change, Neal, in the last year or so is that many of the drone attacks have been directed at the Pakistani Taliban, who after all are killing, you know, literally hundreds of Pakistani civilians, soldiers, policemen. And so the Pakistani pushback has really dropped now because now American strategic interests and Pakistani strategic interests on this matter are pretty closely aligned.
CONAN: There is also and in fact, the United States is about to supply Pakistan with drones that it can use on its own. So that will become a further topic. At the moment, the Pakistanis are using aircraft in their attacks against the Pakistani Taliban. And of course they're using conventional forces too, as we saw in South Waziristan, a major campaign there, and they have been arresting, of late, Taliban, members of the Afghan Taliban in Pakistan. It's hard to keep clear which side of the border you're on at some points.
Mr. BERGEN: Yeah, so you know, taken together, this has put a lot of pressure on all these militant groups, but you know, there's a huge caveat here, Neal, which is if you look at the violence in Pakistan and Afghanistan, 2009 was the worst year for violence on both sides of the border.
And so we asked the question, Katherine Tiedemann and myself, a co-author in our paper, if it's putting so much hurt on the militants, why is the violence going up, you know, so much in the last year or so? And there might be a lot of reasons for that.
But the fact is that most of the groups doing suicide attacks on both sides of the Afghan-Pakistan border are headquartered in the tribal regions where these drone attacks are happening.
Is this the last gasp, or is this the fact that they can sustain a really lengthy campaign? You know, simultaneously, another big development is the Pakistani public has really much turned against the Taliban because of their campaign of violence, and the reason that you're seeing successful Pakistani military operations for the first time in both Swat and Waziristan and other Taliban strongholds is that really these are done with the support of the Pakistani public, and they're very serious Pakistani military operations, and one of the reasons we're seeing, you know, much warming up of relations between the United States and Pakistan is, again, because of this kind of more closely aligned national strategic interest, which is Pakistan now no longer feels it's just doing this because the United States is telling them to do it, but they're doing it for their own interests.
CONAN: We're talking with Peter Bergen of the New America Foundation about the drone war in Pakistan, 800-989-8255. Email us, firstname.lastname@example.org. Let's begin with Cynthia. Cynthia is calling us from Vernon in New York.
CYNTHIA (Caller): Hi, Neal. I enjoyed your talk at Syracuse University a few weeks ago.
CONAN: Thank you.
CYNTHIA: Yes, so I don't know if you happened to know that in Syracuse, at Hancock Air Force Base, they have the drone program. We're having a big demonstration against the drones there on April 25. But I just want to tell you the reason I'm against it.
The rules of law say you're not supposed to kill civilians unless it could be helped, and the proportionality of 1,000 civilian people being killed and justifying it and only two big VIP villains getting killed, that's not what our country's all about, because we're supposed to go according to the rule of law. It's just a final solution, like other countries had, to get rid of people they hated.
CONAN: Cynthia, thanks very much for the call. So Peter, the question obviously raised: Is this opportunism? Is there a legal justification? We heard the statement from the State Department lawyer, special counsel, last week, Harold Koh.
Mr. BERGEN: Well, the legal justifications for this are highly classified. So we only heard a small part of it. But part of it is proportionality. Are you killing a disproportionate number of civilians? Part of it also is a question of are the people you're attacking, you know, militarily significant? Are they leaders of militant groups that are killing a lot of civilians?
Clearly, the Obama administration has decided that this is legal. We're going to hear later in the program, I think, from Philip Alston of the United Nations, who's, I think, you know, maybe going to take a different view.
CONAN: Have questions about it. But also with us here in Studio 3A is Amitai Etzioni, professor of international affairs and sociology at the George Washington University, author of "Security First: For a Muscular, Moral Foreign Policy." And good of you to be with us today.
Professor AMITAI ETZIONI (George Washington University): Thank you, Neal, thanks for having me.
CONAN: And what do you consider about the legality of these? International law might regard these are illegal extrajudicial killings, no legal process. This is just murder.
Prof. ETZIONI: First of all, in terms of domestic law, Congress authorized to use all appropriate means against al-Qaida. (Unintelligible) drones against other groups, I think we're getting into other murky territory, and I think it's a good time for the Obama administration to go back to Congress and ask them to expand that authority, and I dont think they'll have any difficulties.
CONAN: Just to mention that drones have also been used in Yemen, at least we know about that, on some minimal basis. Nevertheless, they are primarily used in Pakistan, also, of course, used for reconnaissance and occasional attacks over Iraq and Afghanistan, but mostly...
Prof. ETZIONI: Right, you're absolutely right, but they're (unintelligible) is al-Qaida. So I mean, if you want to go strictly by the law, I think it's time to go back to Congress, first of all.
In terms of international law, the effort has already been made to proportionality. It has to be militarily necessary and such. The country in which you do it has to consent.
Now, people tend to, and I'm sure we're going to hear about it later, treat this as if this was holy and immutable and clear. It ain't necessarily so. For instance, in the case of Pakistan, the Pakistan government on Monday protests these strikes and on Tuesday gives us the intelligence and bases from which to send the drones. So does it mean Pakistan is consenting, or it's not? What is proportional is not always as clear as we heard about a moment ago.
But my main point is actually a different one, and that is I think we should sharply separate two questions. Should we be at war? And second, was there appropriate means?
So if for a moment put aside the question that we need to fight terrorism - it is a whole other debate (unintelligible) look at the example you gave about someone in Pakistan in the tribal areas. We really have, if we are going to fight them, basically three options: We can drop bombs on them from high-flying airplanes, we can send special forces, or we can use drones.
I believe we can show very readily that drones are much preferred. Let me explain why. I was the guest of the Fifth Striker Brigade in Fort Louis(ph) in the state of Washington just before they were shipped to Afghanistan, and we had this conversation, and they explained to me that the military has a formula, a very elaborate formula, in which you have to justify a drone strike.
And the question: Do you have two independent intelligence sources? Are there civilians? Are there children? According to how the information is parceled out, you have to go higher and higher in the command to get approval and sometimes all the way to the White House.
So this is much more supervised. The drone can linger hours over the target making sure lawyers can look at it. None of this is available when you drop bombs...
CONAN: Or send special forces.
Prof. ETZIONI: So it's a much I hate this word. I was a special forces. I hate war. I hate killing, but I want to tell you, it's a much cleaner use of a military instrument. So if you must kill, that's the best way to do it.
CONAN: Let's get another caller in on the conversation. This is Paul, Paul calling us from Grand Rapids.
PAUL (Caller): Good afternoon, gentlemen. I'm a former Marine, and I work in law enforcement, and so while I can't say that I perfectly understand all of the costs and all of the factors that are involved in this, I do support the drone strikes because that I feel that some of the alternatives, as one of your speakers just pointed out, are much bloodier, whether it would be a Dresden-style, you know, aerial rolling bombardment, artillery...
CONAN: Well, nobody bombs like that. The United States doesn't bomb like that anymore. They are JDAMs that are dropped with geo-positioning satellites that are quite accurate.
PAUL: Absolutely, sir, but I feel that all of the other viable alternatives, whether modern or not, the drone strikes show a and I hate to say this, because, like the caller says, obviously no type of war is preferable to peace. No type of human, you know, loss of life is, you know, preferable to people living.
I do, however, prefer the idea of drone strikes to occupying that ground and placing American lives in danger, and as well as Pakistani and Afghanistinian lives in danger.
CONAN: All right, Paul, thanks very much for the call, appreciate it.
PAUL: Yes, you gentlemen have a nice day.
CONAN: Thank you. We're talking about the Obama administration's controversial use of unmanned aircraft, drones, to attack and kill members of the Taliban and al-Qaida on the territory of an ally, Pakistan.
The CIA says it has the enemy on the run. Is the campaign legal? Is it effective? Is it wise? We want to hear from you. Give us a call, 800-989-8255. Email us, email@example.com. You can also join the conversation on our Web site. Thats at npr.org. Click on TALK OF THE NATION.
Stay with us. I'm Neal Conan. It's TALK OF THE NATION from NPR News.
(Soundbite of music)
CONAN: This is TALK OF THE NATION. Im Neal Conan in Washington.
We're talking today about the use of drones. Over the past six years, the U.S. has launched scores of drone strikes in northwest Pakistan. A recent study suggests that between 800 and 1,200 people were killed in those attacks. By one estimate, a third of them are civilians.
Since President Obama took office last year, the CIA stepped up its use of drones in the war against the Taliban and al-Qaida. The State Department's top lawyer, Harold Koh, defended the practice last week by saying that al-Qaida has not abandoned its intent to attack the United States, and the U.S. has the authority under international and the responsibility to its citizens to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaida leaders who are planning attacks. Human rights activists and some legal scholars say no way, the practice is illegal.
Our guests are Peter Bergen, a journalist and a senior fellow at the New America Foundation, and Amitai Etzioni, a professor of international affairs and sociology at the George Washington University. Is the campaign legal? Is it effective? Is it wise? 800-989-8255. Email us, firstname.lastname@example.org.
And we have this from Kiri(ph), emailing from San Francisco: To answer whether the drones are justified, we need to pose a simple question to ourselves: What would our reaction be if a foreign nation, which possessed overwhelming technological and military force, used them to take out suspected American militants or terrorists and with the same appalling rate of casualties to innocents?
What's sauce for the goose is sauce for the gander, Amitai Etzioni.
Prof. ETZIONI: Well, the notion that we are the same as the Taliban, this moral equivalency troubles me a great deal. We are not supporting terrorists in other countries, and if we did, we should deserve the same treatment.
But the main issue really here is a different one. This term that keeps popping up of citizens - all the people we are dealing with are citizens, and the people who store ammunition in mosques, use ambulances to transport suicide bombers, put their headquarters in schools, these are the people you should talk about, because if they won't fight by the rules of war they want to have it both ways.
They want to violate the rules of war on the one hand and then be protected on the other. You can't have it both ways. If they want to fight we used to say like a man if you want to fight like a soldier, let him stand up, put on a uniform and get out of the civilian quarters. As long as they hide in civilian quarters, we have no alternative, if you are going to fight at it, is to catch them where they are.
CONAN: Peter Bergen, indeed it seems to be a tactic of these groups to, well, hide amongst the civilian population.
Mr. BERGEN: Yeah, certainly when Baitullah Mehsud was killed, the leader of the Pakistani Taliban, along with him was killed, by most reports, both his father-in-law and his wife. And the story in the post suggests that Leon Panetta, the head of the CIA, personally approved the strike, knowing that there was at least one civilian in the house with him. So that is just a fact.
But I wanted to pick up on something that Professor Etzioni said, because not only are the other options, you know, bombing from the air and using special forces less, you know, going to be going to kill more people, but they're also politically unpalatable in Pakistan, which is a very important point.
One of the reasons the drone program really got amped up in the last six months of the Bush administration is that, you may recall, Neal, a group of special forces went into the tribal regions, trying to take out a group of militants.
This produced a huge amount of pushback from the Pakistani government and military, and so those two other options are just off the table. Not only would they be more destructive, but they're politically impossible.
And so we're back at the point where the drones are sort of, they're the only tool in the toolkit. That and when I say that, I'm not necessarily saying I completely agree with it. That is just a fact. There are no other options.
CONAN: The least bad option is what you describe it as.
Mr. BERGER: Right.
CONAN: Joining us now from his office at NYU Law School is Philip Alston. He's the United Nations special rapporteur on extrajudicial executions and a professor of law at NYU, and it's good of you to be with us today.
Professor PHILIP ALSTON (New York University): Thank you, my pleasure.
CONAN: And I assume you're familiar with the statement by Harold Koh, the State Department special counsel last week. Do you think it answers the questions about whether this is legally justified or not?
Prof. ALSTON: Well, I think it's very good that Harold Koh has begun the conversation. I think it's good that he's outlined what he sees as the legal rationale. The first thing to note, of course, is that it's not a legal opinion, and in fact there is remarkably little law in there.
Basically, Harold Koh's statement restates the well-known principles, fairly uncontroversially, but significantly fails to address any of the key issues that were raised in advance.
CONAN: And what would those be in your opinion?
Prof. ALSTON: Well, the first issue is the domestic legal basis on which this program is being carried out, and that of course raises the whole question of the central role of the CIA. Harold Koh's views dont touch on that at all. There's no mention of the CIA. It's not at all clear that his broad comments are referring to activities undertaken by the agency.
Second issue is the, what's known as the war-on-terror issue. In other words, under what circumstances is the United States permitted by international law to use these targeted killings? It's very clear, in my view, at least, that if there is an armed conflict going on, and it's part of an armed conflict, and the target is a combatant or someone otherwise taking part in the hostilities, that you can indeed use drones.
But it doesn't translate very easily into saying that we can use drones whenever and wherever we want to if we identify someone who we call a terrorist. There's a very big difference between invoking the law of armed conflict on the one hand and on the other making a more blanket assertion that you can simply take anyone out anywhere.
Prof. ETZIONI: Nobody's saying that.
CONAN: This is Amitai Etzioni. Just let me ask Philip Alston: There are, indeed, enemies of America who have documented - there are camps there. They do not wear uniforms. They do not apply the rules of war in any sense. How else is the United States to deal with them in an area which Pakistan, the legal authority there, cannot deal with them, and Pakistan perhaps not openly but certainly by any measure you want to take in terms of common sense condones this?
Prof. ALSTON: Well, I think we're talking at two different levels. First of all, we need to talk about the general principle, and that may or may not be applicable to Pakistan. Then we talk about the specifics of Pakistan.
As it's presently stated, as I understand your view to be and that of Ken Anderson(ph) and so on, there is a power that the United States can and should use to take out terrorists wherever they may be. Now, that's a very different proposition from looking at the specifics of the conflict going on in Pakistan.
I would contest the general proposition very strongly. In relation to Pakistan, I would not. I would say that it is part of an armed conflict. Depending on what legal rationale you use, the United States is entitled to use drones to kill people, but it still has to be very specific as to the individuals that it is going to target.
You can't simply say that any civilians who are killed are collateral damage, but that's too bad. You can't say that, one, because international law prohibits it, and two, because as the other contributor to the debate mentioned, you are dramatically turning off the people of Pakistan and making the war far harder for the United States to win.
CONAN: Is it your position that the United States is deliberately targeting civilians?
Prof. ALSTON: That's not the issue. The issue is whether they are recklessly, negligently targeting civilians and whether they are taking appropriate steps to ensure that they're not doing that and to follow up when there are allegations.
There are obviously limits to what the U.S. can do. We're not suggesting that they send in a forensic team, et cetera, but they're the U.S. undertakes all sorts of follow-up surveillance to monitor the consequence of its strikes. We dont know whether they have, in fact, checked to verify the extent to which the people that they thought they were shooting were shot and whether there were significant civilian fatalities which could have been avoided.
CONAN: Amitai Etzioni, let's bring you back into the conversation.
Prof. ETZIONI: Well, first of all, that's exactly what's been done. There's attempts to collect DNA. There are a lot of examinations, for practical and moral reasons.
But there is a different point, I think, which must be made. This phrase, international law doesn't permit, makes it sound that there's a world government, and there's a world court, and all these players out there behave, and this bad United States gets out of line.
There's a jungle out there, and the law of the jungle prevails, and Shiite killing Sunni and et cetera, et cetera, people sell nuclear weapons to each other. So the notion that there is a place where we should observe our manners kind of is much too legalistic and simplistic.
CONAN: So we can do it because we can? Might makes right?
Prof. ETZIONI: No, it's not only that, but we, as I pointed out, have a very careful system where we first keep the drones above the target for a long time to be sure that we have the right person. Then we need two independent sources to verify it's indeed a terrorist.
CONAN: Yet mistakes are made.
Prof. ETZIONI: Of course, and anybody that's really the issue, Neal. People want a clean, nice war, that only the bad guys get killed and everybody's spared. There ain't such thing. So either don't go to war, and I can live with that. I've been there. I've seen people killed. I hate it. So I can say let's leave Afghanistan. That's fine with me. But if you're going to fight, the notion you're going to have a clean, lovely war, it ain't going to happen.
CONAN: What level of precision, Philip Alston, would, in your opinion, the United States have to meet to justify these attacks?
Prof. ALSTON: Well, I think it's very important to go back to the basic principle. No one is talking about a clean, lovely war here. That doesn't exist. War is dirty and awful. What we're talking about is following rules which we have agreed to, rules which we want to hold the Chinese and the Russians and various others to in the future. We don't want to say there's a law of the jungle out there; we, unfortunately, can do whatever we want to.
It's going to backfire on us terribly if we adopt rules and approaches in relation to this particular conflict which we would not be able to accept if used by other states. That's what international law is all about. It's some sort of reciprocity where we stay within the existing rules as generally accepted and we then have the right to demand of others.
CONAN: What - Harold Koh also goes into the argument that this is self-defense. These are people, after all, who are planning attacks on the United States.
Prof. ALSTON: Well, let me give you an example of the bombing that took place in the subway in Moscow. If the Russians announce that the people of Chechnya or somewhere else, in the North Caucasus, are clearly enemies who are trying to terrorize the Russian state - and that would be a reasonable statement, given what we know so far - if they then asserted that anywhere they can find someone who is connected to that terrorist effort, whether it be in Canada, whether it be in Malawi, they can fire a weapon at them, a rocket at them, would we accept that? The answer is no. You'd say you cannot extend the concept of self-defense.
CONAN: In part because our argument would be Canada is perfectly competent to hunt these people down and arrest them on their own. It's not the case in the federated areas of Pakistan.
Prof. ALSTON: As I said, again, we're not looking only at that particular situation where, indeed, it's impenetrable and there aren't easy alternatives. When we assert that this is self-defense, the whole purpose of that statement - because there's no question that Pakistan is a non(ph)-conflict area - the whole purpose of the self-defense statement is to say that we can fire weapons anywhere in the world when we find these terrorists.
CONAN: And that is indeed the statement they are making, at least by...
Prof. ALSTON: And that's the proposition that one has to flip around and say, well, what happens if it's invoked by those who we don't think would apply anything like the same standard as we do?
Prof. ALSTON: And it becomes much more problematic.
CONAN: We're talking about the drone war. Our guest, Philip Alston. You just heard the U.N. special rapporteur on extrajudicial executions, professor of law at NYU. Also with us, Amitai Etzioni, professor of international affairs and sociology at George Washington University, and Peter Bergen of the New America Foundation.
You're listening to TALK OF THE NATION from NPR News.
And let's go next to Tom. And Tom's on the line with us from Athens in Ohio.
TOM (Caller): Yes, Neal. First of all, I must say, unfortunately, that war is law of the jungle. It's not a peaceful issue by any means. It's kill or be killed. But with regard to the drones, the drones are going to allow more strategic strikes to be done, and that's going to in the long haul reduce the number of civilian casualties, as opposed to high-level bombing or major bombardments. So if we're going to look at it as to where the less of the casualties to civilian and innocent people are going to come from, it's a much more controlled aspect on a selected targeting.
The other thing, I guess, I find interesting too is all of the countries who are standing up or all of the individuals standing up, including the United Nations, saying this maybe shouldn't be the way things are done, they don't speak the same language when they turn for funding to the United States for many, many different causes and reasons.
So I guess I wonder a little bit here how is it we're being held to one standard in one regard, but yet when it comes to another regard, we're turned to as though we have to solve all the problems of the world.
CONAN: All right, Tom, thanks very much for the phone call.
And practical alternatives, Peter Bergen. You were talking at a point about a year ago that the Taliban and al-Qaida, the organizations primarily being targeted here, were in fact moving away from the border regions into the interior of Pakistan, to Peshawar and to other places, also to Balujistan, an area where drones are not used because they would not be accepted by the Pakistani government under any conditions. That's regarded as, well, Pakistani Pakistan proper as opposed to these federated tribal areas.
Is that still going on? Are these becoming less effective? Is the is there becoming a law of diminishing returns here?
Mr. BERGEN: I think there has been a slight law of diminishing returns, particularly with regards to al-Qaida, which, you know, goes to something that Professor Etzioni said. I mean, the al-Qaida targets were taken out, the mid-level leaders, in the end of 2008. Most of the people that are being killed in these attacks now on the leadership level are Pakistani Taliban or leaders of groups affiliated with al-Qaida in the tribal regions.
But you know, one idea I have, and it may be completely crazy, Neal, is part of the problem about this debate is it's all shrouded in very high degrees of classification.
Mr. BERGEN: And it would be helpful - you know, these are no longer a secret. The idea that these are sort of mysterious drones dropping out of the sky, they've nothing to do with United States, I mean that's over. We don't really need plausible deniability anymore.
CONAN: Well, Philip Alston is right. Howard Koh does not mention Pakistan specifically, but obviously that's what he's talking about.
Mr. BERGEN: Right. So why not - you know, if there is a debate about this, since plausible deniability is no longer a factor, the Pakistanis know we're doing this. We know we're doing this. Everybody - it's not a secret.
Part of the problem about the debate is it's hard to get it to this question of civilian casualties and the actual numbers, when some of the secrecy surrounds us. And if you'd had a U.S. government official on this program talking about the drones, which you could never do right now because it's so highly classified, they would say that the actual civilian casualty rate is very low, like two or three percent. Now, you know, that's just an assertion right now. I'd love to test that.
CONAN: We should find out. Philip Alston, we just have a few seconds left. Would that improve transparency? Would that improve the situation from your point of view?
Prof. ALSTON: I think almost anything would improve transparency on where we are. We're not looking for perfect transparency; that would be ridiculous in such a difficult context. But at least some good faith indication that there is a very careful accounting going on and that the sort of efforts that Professor Etzioni described are actually happening would...
Prof. ALSTON: ...move the debate forward a long way.
CONAN: Philip Alston, U.N. special rapporteur on extrajudicial executions, thanks very much for your time today. Our thanks also to Professor Etzioni and to Peter Bergen of the New America Foundation.
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