COLUMBUS, Ohio — Armed pilotless drone aircraft are the weapon of choice these days in our military forays into the Middle East.
President Barack Obama approved use of drones in Libya last spring. He said they have "unique capabilities." A target is identified through intelligence sources. The information is sent to the command center. Someone sitting in front of a computer screen fires a missile.
Drones can fly low. Gen. James Cartwright of the Joint Chiefs of Staff explained that for Libya, their "ability to get down lower" gave them better visibility, thereby getting a better bead on a target. And of course with no pilot the only risk is loss of the aircraft.
We are also now using drones in Yemen to target insurgents. In Pakistan we have been using them even longer.
But there is a downside. Drones, say critics, make war too easy. If a president doesn't have to be concerned about putting our youth "in harm's way," it becomes much easier to go to war. Congress may lose control.
Federal law requires eventual approval by Congress if the president gets us into "hostilities." In Libya, when members of Congress claimed Obama was skirting that law, he claimed we were not in "hostilities" because we had no boots on the ground.
The information about the whereabouts of a "militant" may or may not be accurate. Last year the U.N. official responsible for tracking extrajudicial executions questioned the drone killings as arbitrary executions. When a drone attack occurs, typically the U.S. officials claim that those killed were "militants," while local officials often claim that civilians were hit. Depending on whose study one believes, one can find a wide range of ratios of "militants" to bystanders killed.
Killing with drones means killing without a trial. But going back to the 1960s, the United States has signed on to human rights treaties that outlaw arbitrary killing. Drone killings skirt these safeguards. No indictment. No judge or jury. No defense.
But, says the Obama administration, in war one can kill without a trial. The drone killings are premised on the "militants" being participants in the "war on terror," even though Obama avoids that Bush-era term.
But is there such a "war," or is the "war on terror" a convenient legal fiction? Even if "militants" can lawfully be killed on a war rationale, that does not let us kill in the territory of another country. Pakistan in particular has reacted negatively, though there is debate over whether Pakistan condones our use of drones.
If some other country were sending pilotless aircraft over Nebraska to shoot and kill people they regard as threats, the Nebraska citizenry might not be too happy. Negative reaction to our drone attacks has been strongest in Pakistan, where drones are regarded as a terror weapon. Residents of certain regions in Pakistan say they never know when a missile might fall on them out of the sky.
The resentment generated by drones carries serious risks. Last year a man named Faisal Shahzad stood before a judge in federal court in New York. Shahzad was charged with parking an explosive-laden van near Times Square. Had the van exploded, as Shahzad apparently planned, hundreds would have died. Judge Miriam Cedarbaum asked Shahzad if he had any concern about the numbers of innocents he might have killed.
Judge Cederbaum got a response she may not have expected.
"The drone hits in Afghanistan and Iraq," Shahzad replied, "they don't see children, they don't see anybody. They kill everybody." Shahzad said that he was "part of the answer to the U.S. terrorizing the Muslim nations and the Muslim people." Our drones may be on the cutting edge of military technology, but in old-fashioned terms, we may be shooting ourselves in the foot.
John B. Quigley is a professor of law at Ohio State University.
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