As mentioned below, there is increasing political support for federal courts to provide oversight on the use of armed drone strikes against suspected terrorists abroad, similar to the oversight presently exercised under the Foreign Intelligence and Surveillance Act (FISA) when it comes to suspected foreign spies working inside the United States.
One of the supporters of such court, Sen. Dianne Feinstein, while saying that the present drone program “has gone as far as it can go, as a covert activity” and that Congress really needs to address it, also made it clear that “the system of analysis and verification in place at CIA and the White House to determine who ends up on the so called CIA ‘kill list’ for a drone strike is ‘a solid process,’” according to The Hill.
Read more here.
In response to widespread dissatisfaction “with the hidden bureaucracy directing lethal drone strikes, there is an interest in applying the model of the Foreign Intelligence Surveillance Act court — created by Congress so that surveillance had to be justified to a federal judge — to the targeted killing of suspected terrorists, or at least of American suspects,” so reports the New York Times.
The Times mentions how today such attacks reap a “mixed bag of midlevel militants and foot soldiers whose focus is often more on the Pakistani or Yemeni authorities than on the United States,” and how, since the death of American citizen, Anwar al-Awlaki, “who had joined Al Qaeda in Yemen, the legal and moral rationale for such strikes has been hotly debated.”
Several members of Congress and other prominent and influential groups and individuals are calling for such an independent judicial review panel.
Apparently, the Obama administration, too, has had internal discussions on the feasibility of such a body:
An administration official who spoke of the White House deliberations on the condition of anonymity said President Obama had asked his security and legal advisers a year ago “to see how you could have an independent review” of planned strikes. “That includes possible judicial review.”
“People on the national security staff and the legal side took a hard look at it, and the discussions are still going on,” the official said. “There are a lot of complexities. You’d need legislation and probably a new judicial body.”
But there is also skepticism about such a court deciding on “death-by-drone” issues, for various reasons.
Some legislators believe that if such a court’s jurisdiction extended to foreign terrorist suspects “it might infringe on the president’s constitutional role as commander in chief,” and that such a court would “pass constitutional muster only if it were limited to cases involving American citizens.”
On the other hand, judges are not “clamoring to take up the challenge,” the Times says:
“At an American Bar Association meeting in November, a retired FISA judge, James Robertson, rejected the idea that judges should approve “death warrants.”
“My answer is, that’s not the business of judges,” Mr. Robertson said, “to decide without an adversary party to sign a death warrant for somebody.”
Read more of this excellent article here.
We have had a great, civil, reasoned discussion here at The Moderate Voice on the “pros” (if any) and the “cons” (in terms of morality, ethics, legality, Constitutionality, etc.) of using drone strikes abroad to take out suspected terrorists who mean us harm.
I personally support the judicious and minimal use of such drone attacks when the United States, its national security and its citizens are facing an imminent, credible and serious threat — and a threat that cannot be eliminated or minimized in a timely manner by any other means. However, I use the word “pros” cautiously and hesitantly because the killing of people without due process, judicial oversight and, in particular the unintentional killing of innocent “bystanders” — the so-called “collateral damage” — really has no “pros”. At best it is a necessary evil.
I say a great, civil and reasoned discussion because as evidenced by two opinion pieces in USA TODAY our readers virtually covered the waterfront of opinions on this important issue.
In “Drones Best Alternative: Our View” and in “End Covert Drone Wars: Opposing View,” USA TODAY’s Editorial Board and Naureen Shah* exchange “pros” and “cons”, respectively. They do it in such a manner that — no matter what side of this critical and controversial issue one is on — one has to admit that both sides have something important to contribute and one gains hope that our government can find some common ground to continue to protect America and Americans in a capable, legal and acceptable manner.
Readers have heard my opinion on this issue probably ad-nauseam, but I hope that it is an opinion that falls somewhere in between the allegation that by condoning or tolerating drone strikes — no matter how reluctantly — we ourselves have become terrorists and the other extreme that we should continue to use drones at will, without any oversight and regardless of “collateral damage,” as in a macabre version of the infamous musical “Bomb, bomb Iran.”
(My previously stated opinions on this subject are below, in the CODA, for whatever they are worth.)
The two USA TODAY opinion pieces are must-read for all who are agonizing about this issue. Of course, most will favor the opinion piece that best matches one’s own thoughts and values. However, reading, understanding and reflecting on the other side’s views can only help us — Americans in general — to find some areas of agreement.
The following are the “stories highlights” as provided by USA TODAY and some of the writers’ key thoughts.
“Judicial oversight could calm fears about program.”
• Can’t leave terrorists alone, free to operate from havens abroad.
• Using ground troops brings its own price.
• Conventional airstrikes are less precise and far more dangerous to foreign civilians.
The U.S. drone strikes that target suspected terrorists abroad come with risks: They can kill innocent civilians. They violate the sovereignty of other nations and can turn people there against the United States. They grant unreviewed power to the president to assassinate anyone he determines is a terrorist leader abroad, including American citizens.
But for all the controversy, USA TODAY says, “the drone attacks have this going for them: They are effective, and the other options are worse” and the Editorial Board cites how drone strikes have significantly weakened al-Qaeda in Pakistan and Afghanistan and hopefully will do a similar job against al-Qaeda offshoots in Yemen and Somalia.
USA TODAY further supports its “pros” by asking what other options we have and listing those options along with the consequences.
The editorial concludes with a discussion of how an appropriate forum to provide for judicial oversight is worthy of consideration and “could go a long way toward calming fears about future abuse.”
But USA TODAY also says, “for the moment, as [CIA director nominee John ] Brennan reminded the [Senate Intelligence]panel, the United States remains ‘at war with al-Qaeda and its associated forces,’ which ‘still seek to carry out deadly strikes against our homeland and our citizens.’ As long as that remains the case, the drones should keep flying.”
Naureen Shah’s “Opposing View”
“In a democracy, the privilege of waging war comes with a duty to inform the public and win its consent.”
• Reliant on the intelligence of the Pakistani and Yemeni governments, we might not know whether drone strikes truly serve our interests.
• As the first nation to wield drones, we should set the world’s example.
• Use them lawfully, democratically and sparingly.
After the bloody and costly wars of Afghanistan and Iraq, drones offer the tantalizing possibility of cleanly and quickly taking out a few dozen of America’s worst enemies. In reality, the lure of drone technology has drawn us into messy conflict zones in Pakistan, Yemen and Somalia, where we have conducted about 400 strikes and killed more than 3,000 people.
We wage this drone war secretly, through the CIA and Joint Special Operations Command (JSOC), because the Pakistani and Yemeni governments have at times feared that their citizens would oppose open U.S. involvement.
Shah claims that in order to “shore up dubious democracies abroad, we have poisoned our own. For in a democracy, the privilege of waging war comes with a duty to inform the public and win its consent.”
More specifically as to the use of drones, Shah says that the CIA and JSOC refuse to do so — inform the public and win its consent: “They do not publicly admit to any role in drone strikes. They refuse to respond to reports that some strikes are wrong-headed — targeting men who oppose the local government but who do not threaten the U.S.”
She also laments the “killing [of] innocent men, women and children who were in the wrong place, at the wrong time” and that “[r]eliant on the intelligence of the Pakistani and Yemeni governments, we might not know whether drone strikes truly serve our interests, or merely theirs.”
Drones are the future of warfare. As the first nation to wield them, the United States should set the world’s example: Use them lawfully, democratically and sparingly. End the covert drone war and initiate a counterterrorism strategy that is honest about the benefits and limitations of drone strikes.
Instead of tasking the CIA and JSOC with a secret war, we should entrust any necessary strikes to the conventional U.S. military forces that — over time and in response to public demand — have built traditions of complying with the law, reporting mistakes and answering public inquiry.
I believe that drones can and should be used abroad to take out terrorist combatants, but only IF:
- An individual poses a known, verifiable, clear and imminent threat to America and Americans (e.g. about to blow up an aircraft, launch a missile, blow up a U.S. consulate or embassy, launch an attack on U.S. soil, etc.)
- The terrorist suspect cannot be apprehended and otherwise neutralized in a timely manner using other resources or means, or/and when the host government is non-existent (e.g. Somalia), cannot (e.g. Yemen) or will not (e.g. “many”) take action itself.
- Everything possible is done to avoid or minimize collateral damage.
I will now add, “And provided judicial oversight is exercised by a body similar to the Foreign Intelligence Surveillance Act court, especially if Americans-turned-terrorists are involved.”
* Naureen Shah is a lecturer-in-law at Columbia Law School and associate director of the Counterterrorism and Human Rights Project at the school’s Human Rights Institute,
Image: U.S. Air Force MQ-1 Predator unmanned aerial vehicle (U.S. Air Force photo by Tech. Sgt. Effrain Lopez)