Specifically:
The Obama administration assumes that it uniquely sets the terms of legal legitimacy and has the final word on political sensibility. This is not so—certainly not on this issue. The international soft-law campaign looks to the long-term if necessary, and will seek the political death of targeted killings, Predator drones, and their progeny, and even perhaps to CIA covert action, by a hundred thousand tiny paper cuts. The campaign has already moved to the media. Starting with Jane Mayer’s narrative of Predator drone targeted killing in the New Yorker last October, and followed by many imitators, the ideological framework of the story has shifted. In the space of a year—Obama’s year, no less—it has moved from Candidate Obama’s brave articulation of a bold new strategy for attacking terrorists to the NGOs’ preferred narrative of a cowardly, secretive American CIA dealing collateral damage from the skies. Here’s the thumbnail version of drone warfare, as portrayed in the media.
Focus first on the dozens of civilian victims in a Predator strike, particularly wives of the (merely alleged) al Qaeda suspect and many, many children. You don’t actually have to go to Waziristan, by the way, al Jazeera will have done all the “reporting” for you (relying on local, Taliban-influenced sources). Emphasize the casualties, without, however, comparing the casualties that would result from realistic military alternatives, which include bombing or perhaps a rolling artillery barrage by the Pakistani Army. Insinuate strongly that it is not known for sure (at least with courtroom levels of proof) if the target was al Qaeda.
Second, cut directly to a Nevada military base from which the UAV was directed and interview a U.S. military controller, off duty and headed to a baseball game with kid. Strongly imply that the military controller is a coward, using a coward’s weapon, unwilling to confront his (brave but overmatched) enemies in honorable combat, up close and personal. Sententiously note that Predator drones “reduce American disincentives to violence.” Announce, more in sorrow than anger, that if this is all not due to American cowardice, American forces have perhaps been corrupted and rendered insensible to the sufferings of their victims on account of playing too many video games.
Third, interview a human rights lawyer who, relying on the International Committee of the Red Cross’s new “guidance” as to who is a “combatant” and who takes “direct participation in hostilities,” will say that the problem is not just collateral damage. The new “direct participation” standard means that even al Qaeda leaders have a right to attend a wedding undisturbed. They cannot be considered a lawful target at that moment, or while they are merely drinking tea or watching American Idol or consorting with their wives.
Fourth, find a human rights advocate who will say that, after all, although the Americans believe they came up with targeted killing to reduce collateral damage when going after those who hide among civilians as shields, in actuality the “insurgents” were forced to commingle with civilians. (I have been told this, recited as a little mantra, by at least four well-regarded European human rights lawyers in two years now.) Artfully distinguish between what the uniformed U.S. military does and what the civilian CIA does. Be careful not to raise any questions about “Our Brave Men and Women in Uniform”—but strongly suggest that the CIA might be up to no good. Cue a war crimes lawyer who will be willing to say (as a recent academic paper by a highly respected international law professor did) that members of the “CIA are not lawful combatants and their participation in killing persons—even in an armed conflict—is a crime.” Goodness. This, despite U.S. statutory authorization for such participation dating back to the founding of the CIA in 1947. Oh, and by all means suggest that the January wave of drone strikes was merely the CIA engaged in vicious, petty vengeance for the December suicide bombing against its base in Afghanistan. The suicide bomber succeeded because of the CIA’s own incompetence, and innocent civilians are paying the price as collateral damage.
Finally, interview International Criminal Court prosecutors, independent magistrates in hospitable jurisdictions like Spain, or U.N. officials, who will describe drone attacks as “extrajudicial execution” and, at bottom, simple murder by people who are often not even uniformed members of a military fighting a war. Neglect to mention that the United States has always rejected, over many administrations and many decades, the interpretation of the international convention that might yield this legal conclusion. Conclude by observing—just observing, that’s all—that the legal basis for targeted killing, drone warfare, and particularly its conduct by the civilian CIA, is unclear and fraught with uncertainty. It might someday (read: post-Obama, in the next Republican administration) result in international criminal charges.
Thus the Lawfare War continues against an essential American tool in wars against terrorists who secrete themselves amidst the population and plan terrorist acts against free societies and their allies.
Bottom Line. Team Obama must force its top lawyers to publicly defend against Lawfare attacks, or else leave the administration. It must challenge reports based upon Taliban or other Islamist sources, including the definition of who is a real civilian--many family members may be intentionally aiding the terrorists. It must vigorously resist standards of courtroom proof, utterly unrealistic on the battlefield.
Or else, eventually, Lawfare may well deprive Western countries and their allies of the most narrowly targeted, effective tools in wars against terrorists.
Letter from the Capitol, LFTC, 9/11, National Security, Terrorism, Homeland Security, Foreign Policy, UN, Conservative Politics
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