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Thursday, May 23, 2013

Obama's Drone Speech

We've been waiting a long time, but the waiting was worth it.  President Obama finally issued his long awaited defense of his administration's counter-terrorism policy.  He obviously set out to accomplish multiple objectives: defend the legality and efficacy of the drone campaign; pledge to reduce reliance on drone attacks in the future; emphasize that his administration, unlike Bush, rejects torture as an anti-terror policy; and renewed his call for closing GTMO.

He did a pretty good job explaining that drone attacks are the best alternative under the circumstances.  Commando raids like the one against Osama Bin Laden are inherently risky and could potentially involve great loss of life.  Collateral damage is always a possibility but drone strikes are only approved if the administration has "near-certainty" that there will be no civilian casualties.  This represents a very high standard embedded in the government's policy.  I say policy here because the international humanitarian law (the law of war) only requires proportionality: civilian casualties must not be disproportionate to the value of the anticipated military advantage.  Obviously the Obama threshold for launching a strike is now much higher than what the current state of international law actually requires.

Unfortunately, I don't think the speech did enough to explain to the world that the United States is involved in an armed conflict with al-Qaeda, and that a war can be fought against a non-state actor that does not constitute a state.  I think this is absolutely correct, but there is a lot of skepticism about this point, especially abroad.  Plenty of people think that wars are only fought between states, and because al-Qaeda is not a state, the armed conflict is mere metaphor, as opposed to a legal reality.  Ideally, the speech should have explained the standard for when a non-state actor can be a party to an armed conflict. It must have a hierarchy and a command structure, and it needs to be capable of carrying out violent attacks.  When those criteria are met, it makes sense to talk of an armed conflict with such an organization.  Although much of this was implied in Obama's speech, he might have rendered these points much more explicitly.

I also wish that Obama had not made reference to, and relied upon, the notion of "associated forces."  As far as I am aware, that notion is a legal fiction and has insufficient support in either domestic or international law.  The term appears nowhere in the original Authorization to Use Military Force passed by Congress after 9/11; it first appeared in a prominent law review article and then an administration court filing in federal court regarding detention authority.  As for international law, its putative basis rests on the law of neutrality and co-belligerency, but then why isn't the term co-belligerent being used instead?  I suspect it is because the law of neutrality represents an uncomfortable fit with non-international armed conflicts.  How does a non-state actor declare/not-declare its neutrality in a conflict?  These are all questions -- some of which might have answers I suppose -- that the administration has never publicly addressed.

As for GTMO, it was encouraging to hear Obama recommit to closing the facility, although I doubt that anything in the speech will remove the formidable political and legal obstacles that Congress has placed in his way.

As a final point, I hope that today's speech represents the beginning -- rather than the end -- of the Administration's renewed commitment to discussing these issues.  The Executive Branch needs to be far more transparent with the legal and strategic aspects of the armed conflict with al-Qaeda.  More needs to be said, either by Obama or his deputies.  I look forward to hearing the rest of the story.


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