The advocacy groups Amnesty International and Human Rights Watch are accusing the administration of U.S. President Barack Obama of possible war crimes for drone strike campaigns in Pakistan and Yemen. These charges won’t have much weight within the United States — after all, even Hollywood now portrays the way we tortured detainees, and no one has been held to account.
But the reports presage what will probably become history’s verdict on drone strikes taking place off the battlefield in weak states: bad for human rights, bad for the rule of law — and bad for U.S. interests in the fight against terrorism.
There will be plenty of blame to go around, yet I can’t escape the gnawing feeling that people like me — legal critics of the George W. Bush administration’s detention policy — bear some moral responsibility for creating incentives for the Obama administration to kill rather than capture. True, we didn’t realize that condemning interrogation practices and quasi- lawless detention at Guantanamo Bay, Cuba, would lead a Democratic president to break new ground in unfettered presidential authority. But that’s just the point: We should have seen it coming. And we didn’t.
To be clear, I’m not saying that lawyer-critics caused the turn to drone strikes. We’re not that important as a class.
Most of the blame for the adoption of drones as systematic policy will land, rightly, on policymakers. Largely civilian, but partly military, these officials considered drones a convenient and clean way of killing the enemy without endangering U.S. troops. Enamored of technology and of war from a distance, they failed to consider the consequences.
The deaths of innocent civilians mistakenly targeted are horrible, of course. But innocent civilians can also be mistakenly killed by manned aircraft, not to mention ground troops. The strategic error was failing to realize that drone strikes away from the battlefield would systematically alienate the populations in whose midst they occurred. Far from strengthening the governments of Pakistan and Yemen by killing terrorists, the strikes undercut the sovereignty of those already weak governments.
Even when strikes successfully targeted al-Qaida members or other terrorist groups, they reminded the local public that their governments weren’t actually sovereign in their own territory. A 2011 poll in Pakistan’s Waziristan region, financed by the British government, found 63 percent of respondents saying the strikes were never justified.
This trend went directly contrary to the basic doctrine of counterinsurgency developed in the later Bush years, according to which the overarching goal is to strengthen the local government and win support from the population to defeat the insurgents.
Although the tactical appeal of drone strikes is significant, it doesn’t fully explain the Obama administration’s preference for them. Part of the policy choice resulted from the practical impossibility for the president of doing anything with al-Qaida-linked terrorists if they should be captured. Having pledged to close the prison at Guantanamo during the 2008 presidential campaign, Obama could hardly add detainees there. But why had Obama come out against Guantanamo in the first place?
The answer had everything to do with legally inflected criticisms of detention as practiced by the Bush administration. You remember the tune: There was no clear legal authority to hold detainees. Harsh interrogation tactics violated domestic and international law. Guantanamo itself was a legal black hole, chosen because it wasn’t inside the U.S., but also (according to the U.S.) wasn’t under Cuban sovereignty because of a disputed 100-year-old treaty.