Drones versus their Critics: A Victory for President Obama’s War Powers Legacy?[i]

Charles J. Dunlap, Jr.

Introduction

Few things have been more emblematic of the military and, indeed, political aspects of the Obama War Powers legacy than drones.[ii] As many have noted, the use of this novel weapon’s system has vastly increased during the Obama Administration, particularly in areas outside of active combat zones directly involving U.S. forces.

Moreover, although there has been robust criticism by significant parts of the legal, academic, and political communities, neither the courts nor Congress have evinced much inclination to curtail or even publically scrutinize the Administration’s use of drones. Most importantly for any democracy, the support of the American electorate for drones remains very strong, even after the tragic deaths of two hostages (including an American) in a strike in early in 2015. In effect, the President has – de facto – institutionalized (if not expanded) War Powers with respect to drone operations.

How and why did this happen? This brief essay will attempt to outline the answer, and to suggest why the critics have been largely unsuccessful in efforts to limit or ban drone strikes. It will also offer some thoughts as to the meaning of (and limitations to) the President’s War Powers legacy as it relates to drone operations.

Context and Underpinnings

Drone operations must be understood in the context of the fact that today – as has been the case during most of the post-9/11 era - Americans consider terrorism to be the top foreign policy issue, and of even more importance, “9 in 10 Americans say the U.S. should use military force to protect itself from terrorist attacks.” Given that the use of drones has been principally in the counterterrorism mode, it can be credibly asserted that the President’s program is consonant with the broader security expectations of the citizenry. This cannot help to enhance his de facto War Powers authority, especially since drones seem to be effective.

Regarding effectiveness, an illustrative (albeit not only) analysis is Jennifer Williams’ March article in Foreign Affairs. In it she reports that a newly-released trove of documents from Osama bin Laden’s lair “paint a picture of [al Qaeda as] an organization crippled by the U.S. drone campaign.” Moreover, Williams concludes that the evidence supports “the argument that U.S. President Barack Obama and other proponents of the drone program have made that the strikes are effective and that the U.S. drone program is heavily constrained.” Significantly, she notes the critically important psychological impact of drones on terrorists:

Because drone strikes have been effective and because the United States targets them carefully, al Qaeda operatives have taken to restricting their own movement, staying inside, and avoiding gathering in large groups—all activities that are fairly integral to running a successful terrorist organization. It’s not easy to train legions of recruits on how to fire RPGs, build bombs, and shoot guns with any accuracy when you have to stay inside the house and can’t have more than five people gathered together at one time. (Emphasis added.)

Does Global Disapproval Matter?

To be sure, controversy about drone effectiveness remains, but there is a growing consensus among experts that they are a useful tool, even if unpopular in some quarters, and notwithstanding that few believe they are the complete solution to terrorism and other security issues. Furthermore, the absence of another “9/11” event doesn’t seem to be lost on the public and US governmental officials. This may be why, as the New York Times reported in April, that even after the deaths of the hostages in January, support remains “deep” for drone operations not only within the Administration itself but on Capitol Hill as well. Even progressives like Senator Bernie Sanders has said he would continue the drone program.

Of course, U.S. public opinion and Congressional support are not the only relevant factors in assessing Obama’s War Powers’ drone legacy. For example, Professor Ashley Deeks recently analyzed the influence of foreign state and nonstate actors on U.S. security policy. While as will be explained below, it does look as if that the Administration modified its approach to drone operations at least in part to accommodate the views of foreign allies (among others), that effort appears to have had limited success.

However, global disapproval seems to have little strategic consequence. Consider the Pew Research Center’s 2014 survey that found that while the US’s drone (and surveillance) program was unpopular in the vast majority of nations, there is nevertheless “little evidence this opposition has severely harmed America’s overall image” – in fact, 65% still had a “favorable” view of the U.S. Thus, at least with respect to drone operations as they are currently conducted, it is unlikely that overseas opposition will necessarily limit the President’s exercise of War Powers.

Ineffectiveness of Drone Critics?

There are many reasons that drone critics have not gained the traction in the U.S. that they seemed to have enjoyed overseas. In part, this may be the result of a larger problem that many lawyers, academics and others suffer: an insufficient understanding of the technologies of war as well as the methodologies and strategies for their use.

For example, with respect to drones, Amnesty International’s highly critical 2013 report was seriously discredited by David Axe in an article (“Dear Amnesty International, Do You Even Know How Drones Work?”) that emphasized the technical inaccuracies and even impossibilities about drone operations that Amnesty’s allegations reflected. Axe’s article is important not, per se, because of whatever circulation it received, but because it much represents what knowledgeable decision-makers think when they read Amnesty ill-informed attack on drone use.

Joshua Faust did a similarly critical review of Human Rights Watch’s (HRW) 2013 report about Yemen that it entitled - misleadingly - “Between a Drone and Al-Qaeda.” What is misleading? Consider this: the report addresses six incidents where a total of 57 civilians were allegedly killed, but 41 of those civilian deaths were the result of a 2009 cruise missile attack, not a drone.

Evidently, HRW could not grasp the essential differences between the two weapons’ systems, and why drones are typically a vastly better option than cruise missiles or even Special Forces in counterterrorism situations. Faust also points out something else that often undermines critics among knowledgeable decision-makers: HRW, he says, “asserts [that] individual targets, while part of AQAP, are not militarily important enough to warrant a strike” adding the profoundly important insight “[y]et they hardly have access to the same intelligence that guides U.S. targeteers.”

In short, well-versed leaders within the Administration, the armed forces, the intelligence community, and Congress are likely aware of the factual errors of many of the critics’ complaints, and that has made them less susceptible to anti-drone arguments that might have otherwise operated to limit the President’s political ability to use the systems.

Transparency: A Disingenuous Complaint?

An oft-raised criticism of drone operations that is also foundering is the supposed lack of transparency. In a real way, this argument suggests an element of cognitive dissonance. For example, HRW, Amnesty International (as well as a more recent report by the Open Justice Society) all admit to concealing the identity – allegedly for security reasons - of “many” of the people who the organizations claim witness drone strikes (or their aftermath), making it virtually impossible to verify the allegations or even determine if the witnesses actually exist. The irony is, of course, that “security” is precisely the same reason government puts forth for limiting transparency about drone strikes.

Insofar as Americans are concerned, the body politic does not appears to be too concerned about “transparency” complaints. The US public seems to instinctively appreciate the need to secrecy in national security matters. This may explain why a majority of Americans thought that the December 2014 release of the previously-classified Senate report on torture would hurt U.S. national security.

Still, the Obama administration has made a number of efforts at transparency. The President’s May 2013 speech at the National Defense University (along with the accompanying fact sheet), outlined in general terms drone targeting policies, as well as his personal conviction that “these [drone] strikes have saved lives.” – a conclusion echoed by former Deputy Director of the CIA Michael Morell in his new (2015) book.

The Administration’s effort at transparency has, however, come with a cost. For example, the announced policy requirement of “near certainty” of no civilian casualties before an attack is authorized has no doubt encouraged adversaries to embed themselves among civilians, and may be one reason the hostages killed in January were found in the company of senior terrorist leaders, that is, the terrorists may have concluded that they were in a “legal” sanctuary of sorts.

Shifting Critics’ Strategy?

All of this may suggest from a War Powers perspective that Americans (especially given poll results) are satisfied with the effectiveness and the transparency of the Obama administration drone program. This would seem to call for a change of strategy by drone critics. In a study released in May, two political scientists pointed out that “criticisms focusing on the effectiveness of strikes [have] had little impact; only those highlighting normative principles embodied in international legal principles significantly altered public attitudes toward drone warfare.” [Emphasis added].

It is not surprising, therefore, that some critics have been reduced to obfuscating the realities with respect to drone strikes, apparently in the hopes of audiences drawing counterfactual conclusions as to adherence to “international legal principles.” For example, in a July 2015 opinion piece published by the New York Times , Pratap Chatterjee – an Amnesty International board member – made this statement:

In 646 probable drone strikes in Pakistan, Somalia and Yemen recorded by the Bureau of Investigative Journalism [BIJ], as many as 1,128 civilians, including 225 children, were killed — 22 percent of deaths. The New America Foundation’s estimates are lower, but suggest a civilian death rate of about 10 percent.

What he fails to point out is that even assuming the figures are true, the vast majority of the casualties that the drone-hostile BIJ claims actually occurred more than four years ago. As William Saletan wrote in Slate in April (shortly after reports surfaced about the deaths of two hostages in a January drone strike):

If you look at long-term data from Pakistan, you’ll see a clear trend. Since 2012, drone strikes have declined. But civilian fatalities, at a far more acute rate, have virtually disappeared. A year ago, BIJ reported, “In the past 18 months, reports of civilian casualties in attacks on any targets have almost completely vanished … despite a rise in the proportion of strikes that hit houses.”

To be sure, civilian casualties are hardly definitive or only criteria that might evidence a lack of adherence to “international legal principles,” but they are often used to suggest the same because of their potential emotional impact, even if they are, in fact, legally justifiable. There are, however, some additional problems with a strategy intended to erode support for drone operations based on inferences of illegality if not outright claims of the same.

Counters: Why Better Educated Americans Support Drone Strikes

It is quite noteworthy that support of drone strikes among Americans soars as educational levels rise. Specifically, the May 2015 Pew survey shows that among those with a high school degree or less, only 49% approved of drone strikes (with 42% disapproving). However, among those with a college degree or more, a whopping 67% approved, with just 27% disapproving. This plausibly suggests that education about the actualities of drone operations is an effective counter to many critics’ contentions.

There is another, perhaps even more important problem with an anti-drone strategy that depends upon showing a lack of adherence to “international legal principles.” The Pew survey also found that “despite ongoing concerns that drone attacks endanger lives of innocent civilians” only 29% of Americans were “very concerned” about whether the strikes were conducted legally. It is hard, frankly, to fully interpret this statistic as it is not clear whether people are indifferent to legality, or are simply satisfied that those conducting the strikes are doing so lawfully.

To the extent that the drone strikes are conducted by the U.S. armed forces (or are perceived to be) the poll results as to legality may be a reflection of the public’s confidence in the military itself. In Gallup’s annual poll of confidence in institutions (June 2015), the military was – as has been the case for several years – the institution in American society in which the public had the most confidence, far exceeding even such entities as organized religion and the Supreme Court, not to mention Congress and the Presidency itself.

It appears that for its part the Administration is satisfied that it has successfully made its legal case. Steven Preston, the former CIA General Counsel and recently retired as the DoD General Counsel, contended in an April 2015 presentation that one result of a “series of speeches” by various governmental officials was that:

You no longer find, in the popular press or in professional discourse, the same routine references to the U.S. Government’s counterterrorism operations as being “illegal.” Not that the Administration has persuaded everyone or will ever satisfy all of its critics. But the lawfulness of our government’s efforts to counter foreign terrorist threats is now better understood, and more widely accepted, at home and abroad.

Of course, the domestic legal authority for drone strikes would be central to any analysis of the President’s War Powers legacy viz-a-viz drones. It is beyond the scope of this brief essay to fully explicate this issue, but it might be observed that the drone program’s origination in the Bush Administration’s “Article II”-centric rationale, coupled with the Obama Administration’s increasingly tenuous AUMF/legislative-centric rationale (and occasional overt reference to Article II authority), has over time produced something a historical “gloss” favoring an intrinsic Presidential authority basis.

Consider this: In discussing the possible domestic legal bases for U.S. air and drone strikes supporting the African Union Mission to Somalia (AMISOM) last July, Professor Bobby Chesney noted the difficulty of fitting a legal rationale within the existing 2001 AUMF. He further acknowledged the shift by the Obama Administration towards an Article II rationale by pointing out “how broadly the Obama administration construed its independent Article II authority to direct airstrikes (even if not boots-on-the-ground) in Iraq during the first few months of airstrikes against ISIL.” But most importantly, Chesney concluded his analysis by asking with reference to the precise legal basis: “Does anyone care?” In answering his own question, he says:

It's not clear anyone really does. I may have missed it, to be sure, but I've not seen this issue raised anywhere else so far. And I doubt this post is going to set off any real debate. This is, I think, an unhealthy state of affairs.

It might well be said that Professor Chesney’s assessment might also be applied with equal or greater emphasis to the drone program writ large.

Concluding Observations

The American experience with drones has clear implications for Obama’s War Powers legacy. To reiterate, given widespread US public support for a program that began during a Republican administration and markedly expanded during a Democratic administration – with almost no interference from either Congress or the courts - it appears that the ‘historical gloss’ plainly supports a nonpartisan argument that it is reflective of the President’s War Powers authority.

Remarkably, the citizenry seems to accept any reasonably conceivable legal basis, be it either an aggressive construct of Article II power, or from tenuous statutory authority. There is, however, a major caveat: Public support might evaporate if there was documented – and credible - evidence of ineffectiveness and/or, significant evidence of excessive and unwarranted civilian casualties.

The real lesson as to War Powers that could be drawn from the drone program might be that Americans are very pragmatic as to how a President exercises his War Powers, that is, they are less concerned about the technical legal basis as they are about success against authentic threats. Moreover, Americans are largely unmoved by foreign disapproval – even from allies – where they perceive the Nation’s security to be threatened.

Finally, critics would do well to avoid the sometimes neo-Luddite flavor of their objections to military force employing drone technology The fundamental idea of using technology to substitute for sending young soldiers in harm’s way fits squarely with America’s nation-of-tinkerers’ culture, and has much basis in U.S. military history. Furthermore, on a very basic level – and contrary to the assumption of many – the notion of attempting to strike an adversary at a range beyond his ability to bring his weapons to bear is hardly new in the history of warfare. David killed Goliath with a missile weapon launched from afar; English long-bowman destroyed the flower of French knighthood at Agincourt with ground-launched air weapons; and the US savaged Saddam Hussein’s armored formations much because the main guns of American tanks outranged those of the Iraqis by 1,000 meters.

More provocatively, it is also worth observing historian Ian Morris’ recent analysis of 10,000 years of conflict that he believes shows – quite counterintuitively to this writer – that “[w]ar has not only made us safer, but richer, too.” While Morris focuses on the societal organization that armed conflict induces (and the many societal benefits that such human organization generates) it also might be reasonably suggested that the advance of warfighting technology has paralleled the 10,000 years during which he says the rates of violent death have declined very significantly.

In any event, it appears to this writer that criticism of the drone program is still extant but fading in the face of growing international acceptance.[iii] Recently, for example, the United Kingdom killed several of its own citizens in its first drone strike, it is claimed, “outside a formal conflict.” An even harsher verity is found in a 2014 Defense One report which asserts that:

Virtually every country on Earth will be able to build or acquire drones capable of firing missiles within the next ten years. Armed aerial drones will be used for targeted killings, terrorism and the government suppression of civil unrest. What’s worse, say experts, it’s too late for the United States to do anything about it.

Those concerned with the appropriateness of the exercise of Presidential War Powers may find it prudent not to focus upon a particular technological expression of that power – vulnerable as doing so is to factual and technical analysis for which they may not be especially well-equipped to convincingly perform – but rather on the wisdom of larger purpose for which force is being used in the first place. Critics prepared to offer palatable options would also likely find an interested audience. In the absence of reasonable alternatives, drones can quickly become the best choice when the facts indicate a need for force.

Accordingly, the War Powers legacy emerging from Obama’s drone operations may be that a President will nearly always enjoy broad support – almost irregardless of the particular legal basis offered - when force is used to confront what Americans perceive as an authentic and serious threat, particularly when the force seems to be effective and is used in such a way as to minimize the risk to young Americans serving in uniform for whom the U.S. citizenry evinces such great affection and respect.

End Notes