Will America's Drone Wars Come Back to Haunt Us?

Dan Verton

Farea Al-Muslimi spent 2007 living and studying in the US as a high school exchange student from Yemen. The trip was made possible by a scholarship from the US State Department, and Muslimi recounts his time living with a US Air Force family as one of the best years of his life.

Muslimi (pictured) soon returned to his home in Wessab, a remote mountain village in Yemen, and shared his experiences and love for America with the other villagers. Muslimi's memories were all that his family and the hundreds of others who lived and worked the land in Wessab knew of America.

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But the idyllic picture the young man painted of America that so many of his fellow villagers shared was erased on April 17 in a violent explosion that left five people dead. An armed US drone fired a missile at the farming village in one of hundreds, if not thousands, of targeted killings of suspected terrorists around the world. The drone found its target -- a man Muslimi said could have easily been arrested -- and left innocent men, women and children afraid of what else might fall from the sky without warning.

"My stories about my experiences in America, my American friends and the American values that I saw for myself helped the villagers I talked to understand the America that I know and love," Muslimi said during an April 23 hearing of the Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights.

"Now, however, when they think of America, they think of the terror they feel from the drones that hover over their heads ready to fire their missiles at any time. What the violent militants previously failed to achieve, one drone strike accomplished in an instant. There is now an intense anger against America. Drone strikes are the face of America to many Yemenis."

Will America regret its decision?

Experts are sounding new alarms about America's use of drones to conduct targeted killings of individuals that go far beyond the ill will such faceless and sometimes indiscriminate attacks generate among local populations.

Former members of the intelligence and national security communities are now expressing concern that the precedent set by America's use of drones in parts of the world that are not covered by Congress' authorization to use military force against Al Qaeda could come back to haunt the country in the form of foreign drone strikes on American soil.

Some argue that America's use of drones is not only helping to radicalize young Muslims around the world, but that the secretive legal framework used to justify the attacks ignores the reality that drone technology is quickly becoming available to other nations and non-state actors who may follow the US example and use drones to target their own enemies on US soil.

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"No other country in the world has agreed with the legality of our drone program," said John Bellinger, a partner at Arnold & Porter LLP and a former legal adviser to the US Department of State and National Security Council.

"Right now the united states is isolated. The rest of the world is finding this controversial, if not unlawful," Bellinger told a May 1 panel discussion hosted by the Washington, DC-based Bipartisan Policy Center (BPC).

And that is a problem for John Gannon, the former Deputy Director for Intelligence at the CIA, who questioned the panel of experts at the BPC. "The technology is proliferating," said Gannon.

"Ultimately, we're going to be threatened by this technology ourselves if we do not develop international law about the use of this technology. After all, we are a country [based on] the rule of law."

America's targeted killing program using drones raises "profound legal and moral" questions, said Hina Shamsi, director of the American Civil Liberties Union's (ACLU) National Security Project. "And what we know is deeply troubling. The use of lethal force is permissible under international law against a specific concrete imminent threat."

But the imminent threat standard and other standards, such as the viability of capturing a suspected terrorist, are not being applied, said Shamsi.

"We have to be concerned about the precedent we are setting for the rest of the world to follow," said Shamsi. "Whatever standard we are claiming to use today we have to accept that other countries and non-state actors are going to cite back to us tomorrow."

That's exactly what worries Thomas Kean, the former co-chair of the 9/11 Commission who now serves as the co-chair of the BPC Homeland Security Project. "I worry very much that as this technology spreads ... does it mean that other countries have a right to target [people they are at war with] here in the US.?" Keane said.

Obama's Guantanamo

The indefinite detention of terrorist suspects and other enemy combatants at Guantanamo Bay, Cuba, without due process of law will likely forever tarnish the presidency of George W. Bush.

But as the world fully expected President Barack Obama to end the practice of indefinite detention and to close the detention facilities at Guantanamo, it also expected the new administration to end the policy of targeted killings. Instead, Obama has not only embraced the policy, but has increased the use of drone strikes.

According to Peter Bergen, director of the National Security Studies Program at the New America Foundation, drone strikes have increased significantly under Obama. For example, there have been 307 strikes in Pakistan that have killed an estimated 2,000 to 3,500 people during the Obama administration.

"There was only one drone strike in Yemen under former President George W. Bush. There were 47 under Obama," said Bergen, who also testified with Muslimi on April 23.

Bellinger, who was in government when the initial legal basis for the use of drones was devised in the summer of 2001, acknowledged that while it is permissible under international law to use drones to kill Al Qaeda leaders who are trying to kill Americans, the devil is in the details.

"And the problem is we don't know a lot of the details," said Bellinger. "Drones may become Obama's Guantanamo. I now think that is seriously at risk."

Fundamental questions

Although most experts agree that the Obama administration needs to do a better job explaining the legality of its drone-based targeted killing program, drones may not be the heart of the issue, according to Bellinger.

"The problem is not the use of drones. The problem is not targeted killings," said Bellinger. "Targeted killings, when they are legitimate and lawful, can be good. But there is a fundamental disagreement around the world about whether or not the United States is really in an armed conflict at all. This administration decided they are not going to do detention, so they're just going to kill people. Can you be in an armed conflict with a group, in a lot of different countries?"

Philip Zelikow, who served as the executive director of the 9/11 Commission, said there are two basic approaches to assessing the legality of lethal action against terrorists. The first is what he called the "law of armed conflict approach," which requires public debate and transparency. The second is a constitutional approach based on the concept of self-defense. And that "worries me," Zelikow said.

"That doorway [to targeted killing] need not be public. That determination can be concluded in secret," said Zelikow.

And that is precisely why the ACLU's Shamsi thinks the time for a public debate is long overdue. "It is an issue that we must at least debate and decide if this is the world in which we want to live," she said.

"The majority of the people who are being killed now are not senior level Al Qaeda leaders. They do not necessarily pose an imminent threat to the united states."

And for that reason, the drone war "turns the legal status of being a civilian on its head," Shamsi said.

"It's really time for the country to have another public debate about the authorization for the use of force," Zelikow said. "Are we still in a war? I think it's an appropriate time [to ask] that."

For now, said Zelikow, the "countries under attack are the ones that get to decide whether they are at war or not."

This article first appeared at www.HSToday.us