Obama’s Drone Dilemma
The killings probably
aren’t legal—not that they’ll stop.
By Eric
Posner Monday, Oct. 8, 2012
The Wall
Street Journal recently reported on debates within the Obama administration
about the legality of the drone war in Pakistan. State Department legal adviser
Harold Koh, the former dean of Yale Law School and even more former darling of the left for his
criticisms of the Bush administration’s aggressive theories of executive power,
plays a prominent role in them. Koh apparently concluded that the drone war “veers
near the edge” of illegality but does not quite tumble
over it.
That is a questionable
judgment. The U.N. Charter permits countries to use military force abroad only
with the approval of the U.N. Security Council, in self-defense, or with the
permission of the country in which military force is to be used. The U.N.
Security Council never authorized the drone war in Pakistan. Self-defense,
traditionally defined to mean the use of force against an “imminent” armed
attack by a nation-state, does not apply either, because no one thinks that
Pakistan plans to invade the United States. That leaves consent as the only
possible legal theory.
(DO - Koh relied on
self-defense theory, I guess ; the author mixed both issues of the legality of
use of force and territorial integrity. Concerning
the use of drone, Koh relies on the theory of self-defense, and going in
Pakistani territory, on the theory of consent and “unable and unwilling” as a
fall back, which is, the author pointed out, far from flawless theory)
But Pakistan has never
consented to the drone war. Publicly and officially the country has opposed it.
Before the raid that killed Osama bin Laden in May 2011, the CIA sent
a fax every month to Pakistan’s Inter-Services Intelligence agency that
would identify the airspace in which drones would be sent. The ISI would
send back an acknowledgment that it had received the fax, and the U.S.
government inferred consent on the basis of the acknowledgments. But after the
raid, the ISI stopped sending back the acknowledgments.
Now what to do? The
administration argues that consent can still be inferred despite the
unanswered faxes. The reason is that “the Pakistani military continues to clear
airspace for drones and doesn’t interfere physically with the unpiloted
aircraft in flight”—meaning that Pakistan does not shoot down the drones or
permit private aircraft to collide with them.
(DO- there could be
evidences that further support the tacit approval, e.g., Pakistani government
could have made a formal diplomatic complaint in the U.N., which it chose not
to; to cut to the chase, the
administration can infer the consent from the fact that the Pakistani government
is still taking aid from the U.S. )
We might call this “coerced
consent.” Consider it this way: You walk into a jewelry store and the
proprietor announces that he will deem you to have consented to the purchase of
a diamond tiara for $10,000, despite all your protests to the contrary, unless
you use physical force to stop him as he removes your wallet from your pocket.
Imagine further that he’s 7 feet tall and weighs 400 pounds. This is what a
Pakistani official meant when he told the Wall Street Journal that
shooting down a drone would be “needlessly provocative.” He meant that such an
action would risk provoking retaliation from the United States, a risk that
Pakistan cannot afford to take. Because Pakistan lies prostrate and endures the
pummeling rather than makes a futile effort to stop it, it is deemed to consent
to the bombing of its own territory.
But don’t blame
government lawyers like Koh for devising this theory. International law lacks
the resources for constraining the U.S. government. Koh knows this now if he
did not before. Since he built his academic career on the claim that
international law can and should be used to control nation-states and harshly
criticized the Bush administration for violating international law, this must
have been a bitter pill to swallow. (Though he has swallowed so many bitter
pills that perhaps he has lost his sense of taste: The man who told the Senate
at the end of the Bush administration that the United States must
“unambiguously reassert our historic commitments to human rights and the rule
of law as a major source of our moral authority” has backed away from his
earlier opposition to expansive war powers, targeted killing, military
commissions, and military detention.)
(DO- war powers – shift a legal basis from
Presidential war power to congressional authorization ; targeted killing –
basically self-defense ; military commission and detention – what can be done
under GOP obstructionism? Nevertheless, trials of Gitmo detainees are under
way; and the number of detainees is in decline)
The weakness of
international law governing the use of military force goes back to the signing
of the U.N. Charter in 1945. The founders understood that a simple rule
prohibiting the use of military force except in self-defense, or with the
consent of another state, would not be adequate for regulating war. But they
could not draft a code complex enough to anticipate all the contingencies that
might justify war. Instead they set up the Security Council and reasoned that
this body could determine when war might be justified for purposes other than
self-defense. But the Security Council was frozen first by the Cold War rivalry
between the United States and the Soviet Union, and then the cold peace
rivalries between the United States, Russia, and China. It has authorized
only two wars since its inception (the Korean War and the first Iraq War;
it also retroactively approved the U.S. invasion of Afghanistan in
2001).
Needless to say, there
have been dozens of wars since 1945. Participants have included countries as
diverse as China, the Soviet Union, India, Pakistan, the United Kingdom,
Vietnam, Iran, Iraq, Egypt, Israel, and Argentina. Even the supposedly pacific
European countries participated via NATO in several of these wars. The United
States has on several occasions justified wars (for example, in Kosovo in
1999, Libya in 2011) as humanitarian interventions—a
principle that can be found nowhere in the U.N. Charter but enjoys some
international support. In other cases, including current drone operations in
Pakistan, the United States has invoked a new idea of the “unable or
unwilling” country, one that outside powers can invade because that country
cannot prevent terrorists located on its territory from launching attacks
across its borders. But most U.S. wars can be fit into these two categories
only with difficulty. Those wars are undertaken to shut down a destabilizing or
dangerous regime, one that typically has used violence to keep itself in power.
One can put the second Iraq War in this category, as well as the Panama
intervention in 1990, the interventions in Yugoslavia in the 1990s, and the
intervention in Granada in 1983. During the Cold War, the United States also
often evaded the U.N. prohibition on interstate war by funding and training a
domestic insurgency.
(DO- again, the new —is
it really new?— idea of the unable or unwilling is to address the issues of
territorial integrity, rather than the use of force itself, I guess)
The U.N. Charter does
not permit states to use military force to unilaterally address long-term
threats in this way. It is too easy for states to characterize other states as
long-term threats regardless of whether they are. And yet this omission
rendered the charter unworkable, because all states must take long-term threats
seriously, whether or not the members of the Security Council can be persuaded or
bribed to agree with them.
Government lawyers
like Koh must scramble to revise their interpretation of international law so
as to keep up with the new events that justify, in the eyes of the president, a
military intervention. The “coerced consent” doctrine, the
“unable and unwilling” doctrine, and the exception for humanitarian
intervention all whittle away at whatever part of the law on United Nations
use of force blocks U.S. goals. If the United States ever decides to invade
Iran in order to prevent it from acquiring nuclear weapons, expect a new
doctrine to take shape, perhaps one that emphasizes the unique dangers of
nuclear weapons and Iran’s declared hostility toward a nearby country.
It is curious
that there is not a global outcry about the illegality of the wars in
Pakistan or Libya, as there was about the illegality of the recent war in
Iraq, which the Bush administration dubiously justified on the basis of Iraq’s
violations of earlier U.N. resolutions that had suspended hostilities after the
first Iraq War. Maybe the world doesn’t care as much about Pakistan, which has
no oil. Or maybe people have finally realized that the United States, which has
been almost continuously at war since the collapse of the Soviet Union, will
not be swayed by legal arguments. A powerful army is too useful not to use,
whether you are a Republican president or a Democratic one.
