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April 24, 2013

‘Are Drones the New Guantanamo?’

Igor Catran

SPEAKER: Benjamin Wittes, Senior Fellow in Governance Studies at the Brookings Institution and Co-Founder and Editor-in-Chief of the Lawfare Blog

TIME: 6 – 7pm, Wednesday 24th April 2013

VENUE: Committee Room 19, House of Commons, London, SW1A 0AA

For a summary of this event click here.

The U.S. has had significant difficulties in gaining consensus as to what the correct response should be to foreign national security threats. Initially, those found on the battlefield were detained at Guantanamo Bay. However, that became so controversial that no new prisoners have been added, with some international opinion calling for its closure.

Rather than capturing terrorists and placing them in Guantanamo, President Obama has come to rely increasingly on unmanned aircrafts – drones – to kill them instead. This has been especially the case in Pakistan and Yemen. While this went largely unnoticed by human rights groups initially, the possibility of collateral damage and the general secrecy of the program have led to increased pressure to justify the existence of such an aggressive drones policy.

By kind invitation Henry Smith MPThe Henry Jackson Society is pleased to invite you to a discussion with Benjamin Wittes, Senior Fellow in Governance Studies at The Brookings Institution and Co-Founder and Editor-in-Chief of the Lawfare Blog. Mr Wittes will discuss the U.S. government’s response to the ongoing terrorism threat, and the role of drone use in countering this danger.


Benjamin Wittes is a senior fellow in Governance Studies at The Brookings Institution. He co-founded and is the editor-in-chief of the Lawfare blog, which is devoted to sober and serious discussion of “Hard National Security Choices,” and is a member of the Hoover Institution’s Task Force on National Security and Law. He is the author of Detention and Denial: The Case for Candor After Guantanamo, published in November 2011, co-editor of Constitution 3.0: Freedom and Technological Change, published in December 2011, and editor of Campaign 2012: Twelve Independent Ideas for Improving American Public Policy (Brookings Institution Press, May 2012). He is also writing a book on data and technology proliferation and their implications for security. He is the author of Law and the Long War: The Future of Justice in the Age of Terror, published in June 2008 by The Penguin Press, and the editor of the 2009 Brookings book, Legislating the War on Terror: An Agenda for Reform.


Henry Smith MP

Well, good evening, ladies and gentlemen. With Big Ben just about to strike 6pm, can I welcome you to this Henry Jackson society event? Before I hand over to our guest speaker this evening, I would like to first of all introduce Robin Simcox, who is the Research Fellow at the Henry Jackson Society, to say a few words, and then I will give a brief introduction, before going over to our speaker tonight. Robin.

Robin Simcox

Thank you.

I will keep this exceptionally brief. I work on the Al Qaeda and associated movements, and counter-terrorism projects at the Henry Jackson Society.

It is a really fantastic pleasure to be able to introduce this talk today. The website that Benjamin co-founded, the Lawfare blog, is one of the leading resources for someone like me, who works in this field every day. It’s a truly fantastic resource. The banner of the website is ‘Hard National Security Choices’, and that epitomises the work it does really perfectly.

The concerns that Lawfare looks at, the key areas of our time really, in balancing liberty and security, be it from Guantanamo Bay to drones, to detention, to rendition, to enhanced interrogation, some of which I am sure will come up today… I think this is the leading website in analysis of those issues. These are issues that have divided two administrations, they have straddled over two administrations, and the reality is there are no easy answers to some of these issues. I think those that say there are probably have not understood the question properly.

So, Lawfare, and I must stress the value of this, looks at this in a genuinely bi-partisan, neutral way at a time when national security debate generally has become increasing politicised. As someone who works in this field it’s something I especially appreciate. So, I just want to make that short pitch before Ben talks today, as it is a lot easier to praise his work – I’m sure he’s too modest to do so himself – so if those who don’t read it, please do.

And with that, I pass over to you.

Henry Smith MP

Robin, thank you very much indeed. Well, it’s a very great pleasure to welcome our guest speaker Benjamin Wittes today, who is a Senior Fellow in Government Studies at the Brookings Institution, he co-founded and is the editor in chief of the Lawfare blog, which is devoted to sober and serious discussion of the hard national security choices, and is a member of the Hoover Institution Taskforce on National Security and Law. Between 1997 and 2006 he served as an editorial writer for the Washington Post specialising in legal affairs, he is author of Detention and Denial-The Case for Candour after Guantanamo which was published in November 2011 and Co-Editor of Constitution 3.0: Freedom and Technological Change, published in December 2011, and Editor of Campaign 2012, 12 Independent Ideas for Improving American Public Policy that was published by the Brookings Institution Press in May last year and he is also writing a book on data and technology proliferation and the implications for security.

I am delighted that Benjamin is here this evening to talk about Are Drones the new Guantanamo?

After his presentation, I hope there will be an opportunity to take any questions that you may have.

Over to you.

Benjamin Wittes

Thank you, and thank you very much, Robin, for those kind words. When we started Lawfare two and a half years ago, it really was sort of a lark project by three of us, we never dreamt that we were doing anything more than creating a little site for incidental writing that the three of us were doing. It’s very moving, actually, to hear someone talking about it in the language that you just did.

The question that gives rise to the title of this discussion is one actually that my college Ken Anderson posed at the beginning of the Obama Administration. In a very prescient essay that he wrote for a book that I was editing, I asked him to give some thought of targeted killing, which he did. He wrote an essay in which he pointed out that the same forces that had made US detention policy so delegitimised, that it became a very problematic tool of counter terrorism, were starting to think about the tool that had replaced it, essentially as the sort of major instrument. This is over-simplifying as there wasn’t one major instrument then, and there isn’t one major instrument now.

But, it is true that in the period 2009-2010, the era that in which we were kind of capturing large enemy fighters, and trying to figure out what to do with them and using Guantanamo and other sites as a kind of warehouse for them, had by that time sort of ended and that population was declining rather rapidly, at least at Guantanamo. And, what was striking was what was taking place instead, was increasingly ramped up in the early years of the Obama Administration was targeted killings with stand-off weapons platforms, particularly unmanned aerial vehicles, armed predators and subsequently reapers.

And one can ask this question sitting in a café, and then, we have written about it a little bit, is this the new Guantanamo? I think it is a very interesting question that has a lot of interesting dimensions. So I want to sort of briefly lay them out a little bit and then have as much time as possible to take in whatever direction you all want to take it in, and leave as much possible room for discussion as I can.

The first thing to say about this question, is of course the old Guantanamo is not gone, it’s just that everybody has gotten bored of it and the same problem that gave rise to Guantanamo in the first place, which is that there is a certain group of people that you capture, that its unacceptable from a security standpoint to let go, that nobody wants to take if you did want to let them go; and that you also can’t realistically bring to criminal trial and that you were not holding under criminal law to begin with, but under the laws of war.

That problem still remains, at least for a certain group of people both in Afghanistan, where the likely result is that those people will be let go, and in Guantanamo for a certain group of people where that outcome is a little bit more unthinkable. That problem remains, the world seems less outraged about it than it was a few years ago, and so there isn’t this day to day pressure on it that there was only relatively recently. Why that is actually a complicated and interesting head-scratcher of a question to be honest, which we can talk about. But, I think one of the reasons, and perhaps the major reason is that the locus of US counter terrorism policy has considerably shifted to kinetic strikes using scary flying robots. For some of the same reasons that five, seven years ago Guantanamo was irresistible – now there are these scary flying robots that kill people and whose pilots are in Nevada are also irresistible.

So, let me start with what links these two issues together, and to some degree this is obvious, but I want to put it on the table anyway. What made Guantanamo irresistible was that it was a robust American, and it’s critical that it’s American, counter terrorism exertion of power that mingles authorities that people think of as law enforcement authorities with authorities that the US government asserts are foreign policy and/or military authorities.

There is a great discrepancy in transatlantic, and for that matter, US versus a lot of the rest of the world’s views, of the scope of those military authorities. The result is that the US, in a sustained sort of way, is taking action under the rubric of conflict that the rest of the world does not accept under the rubric of conflict. This creates a long term irritant that may be to some degree irresolvable. Complicating it further in the case of Guantanamo, is that approximately, depending on when you poll it, between 30% and 45% of the American population agrees with the rest of the world. So there is a very substantial mobilised minority of people, which included in the election before last both the Republican and Democratic nominee for President, who are to one degree or another deeply embarrassed by the discrepancy and want to resolve it by, to one degree or another, bringing the United States into the ambit of the way the rest of the world thinks about this.

McCain has certainly backed off that position, and Obama has also in material respects also backed off that position – more consequentially but less intellectually aggressive as McCain has, as was very educated this week by the way, when McCain demanded that the surviving marathon bombing suspect be held in a status equivalent to that of the people at Guantanamo. So if you think about the drones debate in this context it is now also a robust exercise of American counterterrorism authority, counterterrorism force, it’s a sort of muscular exercise that the world regards with some degree of varying degrees of disrepute. The United States considers it lawful conduct under the laws of war, in the context of an armed struggle that it regards itself as fighting, and the rest of the world do not regard as legitimately an armed conflict of the sort that you would use this sort of weapon; and, oh by the way, some significant minority of the United States population agrees with the rest of the world, including now, fascinatingly and for the first time and this is I think a very consequential development, a significant element of the conservative movement. This is new, and its fresh and if you think about what happened over the last five years as I do, which is – there was a core of what the Bush Administration was doing that the left had to accommodate itself to, and Barack Obama had to accommodate himself to, when he became President and there developed out of that a very strong bi-partisan consensus about certain types of counterterrorism authorities.

For the first time now, you are seeing that really fray, not merely, because it has always had a left descent, but now because it has a libertarian-right descent too. I think the Rand Paul filibuster – I don’t know how much attention that got in Britain – Rand Paul, who is the libertarian
Senator from Kentucky, filibustered in our most peculiar parliamentary procedure, the nomination of the new CIA director for thirteen hours. He talked without stopping for thirteen hours, in order to protest the possibility that you might have a domestic drones strike. Mind you, there is no plausible scenario in which there would be a domestic drone strike, but that gives you an idea of the degree to which this bi-partisan consensus has begun to fray.

So, this poses a number of head scratching problems, the first of which is, why drones? Of all the things that the United States does, a drone is actually just a weapon, you know, it’s not really fundamentally different from any other weapons system, we have conducted air strikes for many decades. The idea that the instrument that you may use to conduct the air strikes, does not have a pilot on board, isn’t fundamentally a great challenge to the nature of the exercise of authority or power. Some of us start from a very different place, which is to say that you can make an argument, and I would make an argument that the drone, which the fundamental difference between it and other standoff weapons platforms is that it allows the weapon itself to survey the target for long periods of time, and thus wait until the optimum moment to hit the target, such that you minimise the casualties to those around the target and you maximise confidence in the identity of the target. You can make a pretty good argument that this is actually a very dramatic step toward what the global human rights community has been asking for a hundred years – which is greater discrimination in targeting, greater precision, and greater focus. So you ask why having gotten this close, I certainly wouldn’t argue that there aren’t civilian casualties, and I certainly wouldn’t argue that this targeting is perfectly precise, it certainly is much better than anything else we have dealt with in the past. Having gotten this close, why do we now have this sudden legitimacy crisis about the use of this particular weapon? We don’t have this same degree of legitimacy crisis about for example, special forces operations which are designed to do the same thing, which is to say go in and get an individual – but the one weapon that actually by design minimises these problems to some degree, has become sort of wildly controversial, both domestically and abroad.

So, I want to pose, I think three reasons why that may be the case, all of them quite tentative frankly. I am still sort of thinking about it.

The first is just the big scary robots thing. I think there is a great degree of mystification associated with the technology, big scary flying robots that kill people, this is a long standing subject in science fiction, and there is a real fear of the technology that is mapped onto the policy, a deep seated confusion of the policy and the platform. So I guess the first point that I would like to emphasise is that it’s really important to separate the policy from the platform. When you conflate them to justify conflating them, figure out what it is about the policy that you think is inherent in the platform, if that’s what you are arguing.

The second point is that I think it is probable, and this is the big link to Guantanamo, that what binds the anxiety about drones together is just a fear of aggressive US counterterrorism action outside the context of conventional law enforcement. The second thing that’s being mapped onto this policy, is again, not about drones, it’s about US projections of force under the auspices of counterterrorism that are not conventional law enforcement projections.

The third aspect, which, I think this is actually the most challenging and the most difficult, and I think the one that the United States is going to have to contend with, which is going to be most wrenching for the United States to contend with, is the question of secrecy. For a series of I think very good reasons, as an initial matter – and they are put very briefly – the Government of Pakistan is much more willing to consider consent privately, at least historically, to the strikes on its territory than it is to consent either publicly or to consent at all if the United States acknowledges the strikes; and that the Government of Yemen is positively eager for certain strikes to take place as long as they can take credit for them themselves.

For those reasons, which are fundamentally diplomatic concerns, there is a linkage between the consent of the host government and the secrecy of the program, and this means that it is extremely difficult for the United States to defend or talk about the program, both domestically and internationally. This is a huge challenge that, by the way, actually initially was true of Guantanamo too. Remember that is wasn’t until 2005/2006 I believe, maybe later, that the names of the Guantanamo detainees were systematically released. So there was an initial real secrecy problem with detention policy too, and within the US Government there is a very deep on-going debate about how much you can and can’t make public about this program.

There has been a series of speeches starting in 2010 by relatively senior, sometimes very senior, government lawyers that have talked about aspects of the program. I think it is safe to say that the more they have talked, the more the demand – the increased supply has also increased demand, and the more the United States relies on this technique, the greater the demand for more comprehensive information is going to be.

So, I am actually going to stop there and open it up. But, the broad point is that I do think that there is, as there was with Guantanamo, a critical mass that is being reached, of a sort of legitimacy crisis for this policy.

Given the importance of the policy, particularly as the United States draws down troops in Afghanistan, I think it is essential that we figure out how to talk about it in a way that is neither apologetic nor too permissive or too bombastic and I think that is going to be a real challenge going forward.

One final thought, before I really shut up. One of the fundamental problems the United States faces and this is actually true, one of the other things that binds the Guantanamo discussion to the drones discussion, is that every tactic can’t be illegal. There are these ungoverned spaces of the world, that have a magnetic quality to terrorist groups, and they congregate there precisely because they operate as safe havens. There are several ways to get to them there. One is by sending large numbers of troops, so this is what gave rise to the Guantanamo problem. You send large numbers of troops to Afghanistan, en masse these groups flee across the Pakistani border – the Pakistani Army scoops a very large number of them, turns them over to us in kind of an indiscriminate fashion, thus – Guantanamo.

So that’s one way, and that of course developed serious legal policy diplomatic problems.

The second possibility is to follow them into Pakistan, which you can’t do with boots, but you can do with drones. Now that is developing a significant set of legitimacy problems.

So my final thought is that, it cannot be that the only tactic that is lawful, the only tactical that is acceptable from a human rights point of view, and the only tactic that the world will tolerate in the long run United States using, is the one tactic that cannot reach people in ungoverned areas, which is the use of law enforcement in places that the writs of courts don’t, in fact, run. That’s not to say law enforcement has no role in those situations, but it’s never going to be able to be of a leading role, that it is say in Boston or here.

So, I will stop there, and which ever direction you guys want to take it, I would love to chat.

Henry Smith MP

Thank you very much indeed.

It’s remiss of me, I should have introduced myself. I’m Henry Smith; I’m a Member of Parliament and a very warm welcome to you and to everybody to the Palace of Westminster this evening.

So, if we could take some questions. Can I ask that when asking your question, if you could say your name, and if you represent an organisation or body and so forth?

I’ll go to you first, Davis.

Question 1 – Davis Lewin

Davis Lewin, from the Henry Jackson Society.

Thank you for taking this opportunity.

Can I just prompt you briefly before going into the Q&A? I think everything that you have described is in the macro-sense of this problem. There is also a micro-sense, which is the question of oversight. Very specifically, can you just say a word about the state of that debate and how you see that debate in terms of the American system?

Benjamin Wittes

Broadly speaking, the American system, targeting is an executive responsibility, and there is in a formal sense no analogue to, for example, the role the Israeli Supreme Court plays in Israeli targeted killings. Targeted killings in the United States (or by the United States, because they are not in the United States) take place really under one of two rubrics. One is as conventional targeting judgement by the military in areas which the military’s active. Those are no different from any other targeting decision, and the way that oversight is handled is simply through the command structure of the military.

The military does have an on-going oversight relationship with the Armed Services committees in both houses of Congress. So there is congressional oversight in that sense. I think the general way that you should think about oversight of targeted killing by the military is that it’s really no different from any other targeting by the military and the oversight mechanisms are essentially the same.

Where that is not the case is with respect to the CIA, which by all accounts, has a drones program. In those cases, those are covert actions and that is an entirely different legal regime.

There is a very substantial executive branch oversight mechanism for that, but the chief outside mechanism is the relationship between the intelligence community and the intelligence committees of the Congress, which are briefed in very great detail about covert actions. So, the irony is the more secretive of the two programs – which is to say the CIA’s program – almost certainly gets much greater oversight from the Congress than does the military’s, which we think of as a less covert system, but because its relatively conventional, it does not have the same degree of oversight or outside oversight.

There have been a lot of calls in recent months for the statutory creation of some kind of court to oversee drone strikes, particularly against US citizens. I am very sceptical that the executive branch under any administration will sit still for such a suggestion, for reasons we can talk about if you want.

There is some appetite in Congress for a more robust system, the design of which will be a very complicated proposition.

Question 2 – Elizabeth Young

Elizabeth Young, no affiliation.

In the future, clearly drones are going to be available to many other governments. I believe a lot of governments are buying them already. Now, there will be a great temptation won’t there, to use these weapons systems?

In a rather political way, politicians will find themselves targeted. We already see targeted assassinations in Iran. Motorbikes mainly, but also drone attacks. What will happen then?

Second question; what warheads can these creatures harbour? Is anybody going to be able to make a biological warfare warhead for instance? That would be quite handy in some places, probably.

I would like to add a fourth, probably to your three, which obviously are valid. The fourth one I think is the worry that people have, is that here is something being carried on by kids really, because all the pilots are extremely young, they have trained themselves on war games on their computers. Is this really safe?

Benjamin Wittes

These are actually all excellent questions and all of them could easily fill up an hour of discussion, but let me give you three very quick answers to your three points.

Your last point is very profound and very important.

One of the fundamental problems with UAV systems is that they are not going to remain confined to governments and militaries. They already are not confined to governments and militaries. I have one.

The State of Minnesota recently announced, or some people associated with robotics in Minnesota, there is a very big robotics industry in Minnesota, wrote that Minnesota now has more high school robotics teams than high school hockey teams. So, that gives you an idea of where we are training an entire generation… Hockey is big in the Midwest of the United States. Robotics is bigger.

We are training an entire generation of people with a comfort level with robotics systems. We are in the very early stage of development of what the consumer side of this sort of thing will look like. So, what I would say is, just as two brothers can buy black powder and some nails, and disrupt the Boston Marathon, and that has reverberations over here when you guys have a marathon, you increase the power of the tools people are going to using and you will increase the ability to do imaginative things that are very scary and there are reverberations around the world.

As to the question of whether you could arm one of these with a biological weapon. Absolutely. I don’t mean to be alarmist about it, but the distribution of biological agents is actually not a terribly difficult technical problem. One of the principle domestic civilian uses of drones is going to be in the crop dusting area, where this is a very dangerous area of civil aviation. People fly little planes close to the ground. That’s bad. So if you can get the pilots out of those planes, that’s good. And planes that spray things on crops is a good idea, planes that spray things on people is a less good idea.

If you imagine somebody as capable as sitting in Hapeville who conducted the Anthrax attacks in 2001, imagine him armed using a UAV rather than using US mail as a distribution system, it’s a very scary thought and there is actually no technical reason why you couldn’t do it. So, just don’t talk about that idea too much, you may just give somebody an idea.

As to the question of dissemination of two other militaries. Look, it’s going to happen, its already happening, and this is another reason, and Ken Anderson has talked about this very eloquently. It’s another reason why the United States needs to be very clear about the rules under which it is operating, both because we are demanding permission for certain things, and because we are also saying that there are certain things we won’t do. Those demands for permission, and lists of restraints, are themselves designed to conditioned norms. Actually the President has talked about this very explicitly, and I think we need to be very clear and very repetitive and talk explicitly about what the restrictions are. What are things we would never do? What is the principle by which we will use a drone over Yemen, but we would never use one over England? There are answers to those questions, but we need to be very explicit about them.

Question 3 – Paul Beaver

Paul Beaver, I’m the specialist advisor to the Defence Committee in the House of Commons and one of the advisors on our future, and our aerial vehicle inquiry. I was also in the first British predator team in Sarajevo in 1997, so I have some experience in this, and a few operational sorties after that.

I have two real questions.

One is I don’t like the term ‘drone’. To me as a pilot, a drone is a target. You put a drone up and then you shoot it down. It usually has a given course it flies. If you were targeting, a remotely piloted air vehicle, is probably the best technical description of it. Do you see that happening in States, that there is no way we are going to go back from drones?

And if I may, just another one is on Missile Technology Control Regime, because UAV’s that fly more than three hundred nautical miles are banned under that. We have all got them. Nobody has actually created a mechanism that can be taken to any court on this. Do you see the United States either wanting to take a blind eye completely, or to want to see the end of the MTCR?

Benjamin Wittes

I am actually ill-positioned to answer that later question. It is just an issue that I am aware of and I do not have adequate expertise in the specific issue that you address.

As to terminology of drones, I agree with you, but I have given up. There is a bit of feeding the beast every time you say the word ‘drone’. You are using a pejorative term that connotes an absence of human involvement that is actually wrong. It gives rise to this scary image of the flying robots that are coming to get your mother. I would prefer that there would be a better word for it. That said, I am not sure in the in the history of the English language, that we have a good example of a war between a term as simple and elegant as ‘drone’ and as unwieldy and bureaucratic sounding as aerial vehicle, or remotely  piloted aerial vehicle, or  remotely piloted standoff weapon system, and that the latter one wins.

I don’t know what the solution to that problem is. I actually completely agree with you, and that said, I have given up and I use the term ‘drone’.

Question 3 – Anthony Dworkin

Anthony Dworkin, with the European Council on Foreign Relations think-tank.

I have a couple of questions linked about the scope of the targeting program.

First, as you know, the United States officials, when they have laid out the justification their programs in their speeches, have tended to emphasise that the use is confined outside battlefield conditions to high level people who are an imminent threat or a serious threat. Quite a high threshold to meet, and yet all the evidence we have whether it’s from the New America Foundation and so on suggests a rather more sweeping use against comparatively low level types, as they are often described. Is there a tension there, or is this just a difference of interpretation. What is going on?

Secondly and linked to that. Another justification that is offered tends to be in the alternative for legal justification. So, it’s either for use within an armed conflict or it’s for self-defence. What is never exactly clear is where the boundary between those two is. I am wondering whether going forward that might be one area where the administration does deliberate a decision and if so, where that boundary will come down – will Yemen, will Somalia [inaudible], what will be the self-defence use?

Benjamin Wittes

These are both very important questions. I think there is a slight practical predicate issue in the first question, which is I don’t think the administration has generally taken the position that it only targets high-level officials, high-level operatives. That speech was specifically about the targeting of US citizens. The administration has basically said as a general proposition, on the broader issue of non-US nationals, which constitute the universe of all but one, of the people that have been affirmatively targeted.

There basic position has been – they reserve the right to target in self-defence, but basically, they are targeting under congressional authorisation to use military force passed in 2001, those who are part of enemy forces.

Now, Brennan in one speech made clear that they are not targeting everybody that they believe to believe to part of enemy forces, they are not treating it the way you would think of German positions during World War Two. ‘Hey, there is a position there, lets hit it!’ They are thinking about who it is they are getting. There are trying to get people who have operational value and who are at a significant level of importance. That said, they have not argued that they are legally restricted to that group of people in the way that they have argued that they are potentially legally restricted to that group of people within the category of US Nationals. I think the way to reconcile those reports with their statements, and I don’t actually think they are in particular tension is, they reserve the right to target people who are part of the enemy; they are focussed on the higher level people, but if they get some lower level people – good. I think that’s probably the way they would, if you put them under sodium pentothal talk about it.

I think, by in large, the self-defence rationale is there as a legal place holder. By in large, they would argue, I think without exception, certainly without exception in the public record, that the people they have targeted are enemy forces under the laws of war, and enemy forces within the ambit of the specific congressional authorisation to use force.

They always stick in ‘or self-defence’ as a boiler plate language. I think the reason is two-fold.

First, it started coming in there because it is a historic position of the executive branch. We have the right to use military force in self-defence; both as a domestic constitutional law matter and as an Article 51 International Law matter. So, whenever you’re saying, have you got the right to use military force, you always just say ‘throw in that self-defence language’.

In the last year or two it has become more than that. The reason is that the AUMF is atrophying. If you read this document it doesn’t seem to describe the world we live in anymore. The further we go from 9/11, the less relevant it becomes. Pretty soon, eventually, whether it is Al Shabaab, whether it’s AQIM, or whether it is Al Qaeda in Northern New South Wales (I’m joking about that); you are going to have some group that they see as posing an imminent threat as lawfully targetable, but not because they are within the AUMF but because they trigger an independent self-defence rationale.

Question Four – Baroness Falkner

Baroness Falkner, of the House of Lords.

I would like to pick up on Anthony Dworkins question and that of Davis.  Please forgive me for coming late, it’s a bit rude to intervene when ones missed part of the discussion, but I believe I got the gist of what you are saying.

I think a lot of what you have said cannot convince for two or three reasons. Nobody disputes that it could be just another weapon, like a bomb or anything like that, and that is fine; but, as you explained in your response to Davis, the oversight mechanisms, what you are describing as oversight is policy oversight, it isn’t judicial oversight. I think for people like me, who have huge problems with the policy; the lack of judicial oversight that is deeply worrying.

The second point is that when you talk about the CIA Covert Assassination Policy, while a lot of us may not like it, or may even remember Oliver North and the CIA [inaudible], you are probably too young to remember that? The thing about that is that at least the CIA was supposedly going out to target or assassinate individuals. What is extremely worrying about this is the level of collateral damage that as you like to call it, the level of innocent deaths that are caused. Particularly, if you take up Anthony’s point about low-level, so to get one operative, one low-level operative, seventy five people could be killed. The lawlessness implicit in the policy is deeply worrying.

Regarding the point that the lady in the corner raised about anyone using them, we know it is about seventy one countries, something like that roughly, that have them.

I don’t know if you are aware of the incident recently in Burma where the Chinese took out a drug baron by the use of a drone?

Benjamin Wittes

They didn’t. They declined to. They thought about it.

Baroness Falkner

I thought they did. This shows remarkable restraint on the part of the Chinese, and I am no friend of the Chinese, if you detect the irony in my voice? That they actually bothered to do what the United States cannot do which is to arrest a person, and then decide what they want to do with them. They have a death penalty, so as far as they are concerned that is appropriate, as you do.

The analogy that you draw with Guantanamo, it’s just like Guantanamo, it is not accurate – because in Guantanamo you know that you haven’t arbitrarily killed off the people you brought there. We assume that the military commissions will go through their work and somebody will just be detained indefinitely. What you are doing here, is that you are actually getting some nebulous information about someone in a certain part of the Hindu Kush mountains and randomly taking out that person and many others. We know in Yemen, that the operative on your side got assassinated recently when went to meet people who he was going to get to go over to your side. So not only did you take out the wrong guy, and the whole village, but you also made them all turn against you.

On that basis, I will give you a chance to respond.

Benjamin Wittes

You have put a huge amount on the table.

I think almost everything that you have put on the table relies on an assumption that is contested between the United States and everybody who argues what you argue. Everything that you have said is unthinkable to do in a civilian law enforcement environment, and is not quite the norm in lawful warfare targeting, but you are basically describing actual targeting and warfare.

Certainly, a strike as you say will get one low-level guy and kill 75 civilians is not lawful targeting. But, I don’t believe that is really what is happening. There is this binary threshold question that a huge amount of where you go with this depends on. That question is do you believe there is armed conflict that justifies targeting? If you don’t believe that, I agree with you, you are in a lawless environment, and I don’t know what to say to somebody who does not accept that premise, except that there is an unbridgeable barrier between those who do, and those who don’t accept the premise.

A huge amount will flow from that and we can sit here and argue all day ‘no there isn’t, yes there is. No there isn’t, yes there is’ with respect to a state of armed conflict, but I do think that you rightly focus on that. Outside of that, you are talking about extrajudicial killings and lawless assassinations. Inside of that you are talking about something that is recognisable as targeting.

I hate to say ‘let’s just agree to disagree’ about that, because actually what hinges on that is whether this is a reasonable policy and reasonable program, or whether it is a series of assassinations. So, I understand that is not an adequate answer to that question, but all I can do is acknowledge the difference.

As to your point about oversight, you are quite right. The United States does not have judicial oversight over overseas military operations. There is exactly no exceptions to that, except the habeas review of detentions at Guantanamo. That is a very recent thing.

If the rest of the world looks at the United States and there is no judicial oversight of your overseas military operations, and you engage in a lot of overseas military operations, the only thing the United States can say is that’s true and that’s true. I suppose that is a deep critique of our constitutional system, but it is the constitutional system we operate under and some of us aren’t especially apologetic about that.

Baroness Falkner

Geneva conventions come to mind, you do have them, there is judicial oversight at some level that the United States signs off to. These are out with the Geneva conventions.

Benjamin Wittes

Actually, the Geneva Conventions say nothing about judicial oversight of targeting decisions. It’s not a feature of the regime.

Question Five – David Webster

David Webster from the [inaudible] Group.

In the run up to the election last year there was a New York Times piece suggesting the very close involvement of the President in targeting decisions. I am wondering at what level you think targeting decisions should be made and what consequences you foresee if it comes to the event of a very close association between President and targeting decisions?

Benjamin Wittes

This is a fascinating question, about a fascinating story.

The Times story describes the President, as having studied [inaudible] and feeling very deeply that he wants to be the one who is accountable for any of these decisions that get made. Here is the real oversight mechanism that has developed, and I understand that it will not satisfy some people in the room, but I think at as a descriptive matter, this is really what has happened.

The President, I think, does get very actively involved in certain of these decisions. More importantly than that, this has changed now; he essentially gave a veto over a lot of these strikes to Harold Koh, who is the State Department Legal Advisor. Koh was for many years a major critic of strong overseas counter-terrorism operations in the last administration, and I think was a very substantial break internally on a lot of things. I think the fundamental oversight mechanism that developed, which again is not a judicial oversight mechanism and it is a legal oversight mechanism, but it’s kind of an informal one, is the push and pull between the State Department, Defence Department and the CIA over in this sort of inner agency called the ‘inter-agency process’ or you could call the ‘inter-agency slugfest’. It was a very deep set of arguments and battles over the terms under which force would and wouldn’t be used that were ultimately resolved by the personal intervention of the President. Query whether a) that’s adequate, and query b) whether once some of these decisions have been made they acquire an institutional life of their own, and those same parties don’t get involved at that level a second time or a third time, much less a tenth time or a twelfth time.

I don’t think we know the answers to those questions. The two most aggressive participants in those debates were Harold Koh and Jeh Johnson, who was the Pentagon General Counsel, are both now out of government. So, it will be very interesting to see whether that atrophy is or, whether their successors are as engaged in those targeting reviews with ultimately the President kind of breaking ties, which I think is the best way to describe what has been happening.

Question 6 – Sarah Ingham

Sarah Ingham, King’s College London.

I am wondering whether all the technological advances in connection with warfare don’t engender similar legal and ethical debate and questions; and whether these are about drones or UAVs, isn’t generational? If you’re under 25, maybe you don’t have the same sort of anxiety as those of us who are a bit older; and whether that unease might be a squashed if, in a civilian context drones are used as surveillance mechanisms rather than weapons platforms? I am thinking of whether police forces in Boston or London were for surveillance for last week’s marathon and their use becomes normalised; and therefore we become less anxious about them being used in war?

Benjamin Wittes

This is another fascinating question.

Two things:

One is that you are absolutely right, that every technological advance that causes the bearer of force to be further remote from the target of force, more lethal and thus more protected at a distance, comes with some disrepute at the moment that it comes.

I was on a panel the other day, and one of my co-panellists read the church’s reaction to the advent of the cross-bow; I don’t remember the exact language nor do I remember which pope it was who denounced this as, ‘long-bows and cross-bows are just horrid, undignified weapons’, but notably she said, and again; I have no independent knowledge of the history, the Pope only banned their use against other Christians.

I do think there this a deep point in there. The whole history of weapons development, is a history in making there bearer more safe and more lethal at greater points of safety. We do tend to develop more comfort level than we started, and I do think there is a lot to be said for that in the case of UASs.

Your second point however, at least in the United States, is likely to be wrong.

The United States has a very different cultural attitude towards surveillance cameras than Great Britain. I will just state this as neutrally as I can. There are a lot of people in the United States who think that British tolerance for surveillance cameras is this side of tolerance of a surveillance state that will bring ‘big brother’ tomorrow. There are similarly at the state level in the United States, a lot of state legislators are moving to radically restrict the use of UAVs by law enforcement for precisely that reason.

The Boston Marathon incident where British type CCTV cameras proved very essential to the quick identification and apprehension of the individuals in question may change that. From the American point of view, I am sure pathological distaste for surveillance is a very deep rooted cultural feature of American politics. We are much more comfortable I think with armed drones than we are with unarmed drones.

Henry Smith MP

Thank you very much indeed. I am afraid we have run out of time.

Can I thank our speaker this evening, Benjamin Wittes for a fascinating presentation? Thank you very much for answering those questions. Can I also express my gratitude, on behalf of the Henry Jackson Society, to everybody who has attended this evening and for your participation in this event?

Good night.