Current and former U.S. intelligence and counterterrorism officials say they see little difference between Barack Obama's policy on remote-control drone attacks as articulated last week by a top administration lawyer and that of George W. Bush. As we reported, in a speech before a legal group last week, State Department legal adviser Harold Koh called it the "considered view of this administration ... that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war."
Although the speech mentioned no specifics, current and former officials say it was the first time to their knowledge that a senior U.S. government official has publicly spoken in any detail of the use of drone-borne missiles as a counterterrorism weapon. Such attacks have been a subject of serious controversy in legal circles. Philip Alston, a New York University law professor appointed by the United Nations to investigate "extrajudicial, summary or arbitrary executions," said last year that the U.S. government's refusal to publicly discuss its use of drone attacks was becoming increasingly "untenable....What we need is for the United States to be more up front and say, 'OK, we're prepared to discuss some aspects of this program.'...Otherwise you have the really problematic bottom line, which is that the Central Intelligence Agency is running a program that is killing significant numbers of people and there is absolutely no accountability in terms of the relevant international laws." And in October a lengthy article by The New Yorker's Jane Mayer exhaustively examined the downside of drone attacks.
The deployment of remote-controlled weapons against terrorist targets dates back at least to 1998, when President Bill Clinton launched cruise missile attacks against Al Qaeda targets after two U.S. embassies in Africa were bombed. Following the 9/11 attacks and the U.S. development of high-tech drone aircraft that could monitor targets for hours before destroying them with air-to-ground missiles, the Bush administration began to use such weapons systems more widely against Al Qaeda in Afghanistan and Pakistan. Even so, the Bush administration used drone attacks sparingly, particularly against sensitive targets in Pakistan, until a few months before Bush left office, when the president expanded the range of permitted targets from "high value" terrorist leaders to a much broader set of potential targets including "foreign fighters" only loosely affiliated with bin Laden.
Even so, the Bush administration never publicly discussed the use of drones or the legal reasoning behind it. Drone attacks in Pakistan remained a classified "covert action," at least in part because while Pakistani officials privately sanctioned such operations, they insisted they could not publicly condone such attacks for domestic political reasons. Although Koh said nothing about Pakistan or any other country where America might use drones clandestinely, he did discuss the Obama administration's view that drone strikes are a legitimate way for America "to defend itself, including by targeting persons such as high-level Al Qaeda leaders who are planning attacks."
"This was an excellent speech, and it was wise of Harold [Koh] to articulate the rationale in public," says John Bellinger, a top Bush administration lawyer for both the National Security Council and the State Department. "I did not see him say anything that was different from the previous administration's legal thinking," added Bellinger, who was present during Koh's speech last week at a meeting of the American Society of International Law in Washington. "I'm quite heartened that over two administrations the U.S. government has relied on consistent legal arguments in the war on terror," says a former senior intelligence official. And for the record, CIA spokesman Paul Gimigliano says: "The CIA's counterterrorism operations, exact and effective, are conducted in strict accord with the law."
"I'm not a specialist in intellectual nuance," says another former counterterrorism official who handled issues related to drone policy, "but I can't see any difference at all" between the Bush and Obama administrations' policies on drone attacks. Koh's defense remote-controlled killings by means of drones could also be logically applied to targeted killings by hit teams, the official points out, asking not to be named on such a sensitive topic. Nevertheless, the use of ground-based hit squads has been forsworn by CIA Director Leon Panetta, who told Congress last year that such operations had been considered on several occasions under the Bush administration but were ultimately abandoned or rejected.
Some legal experts say Koh's justification for drone attacks is actually broader than arguments the Bush administration is known to have relied upon. The Bush administration largely couched its drone policy in terms of an active military conflict—what the Bush White House called the global war—says Kenneth Anderson, a professor at American University's Washington College of Law. Koh's case for drone attacks as a means of "self defense" is arguably is a more expansive argument, according to Anderson.
But Koh is hardly the only current government official who strongly defends existing drone policies. "Al Qaeda and its friends are still very dangerous, but they've felt some major pain," says one. "They've lost a lot of people—not just leaders and planners, but foot soldiers and facilitators. They've seen their training grounds and bomb factories hit. We and our partners have shown them that a place they once saw as a haven is a lot less safe than they thought it was. That helps knock them off balance and disrupts their activities. That isn't controversial at all. It's self-defense. When the intelligence people spoke of a growing threat to the United States from the tribal areas, doing nothing wasn't an option. That was true in the last administration, and it's true in this one, too."
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