Rules of Engagement: The Legal, Ethical and Moral Challenges of the Long War

This is a transcript of “Rules of Engagement: The Legal, Ethical and Moral Challenges of the Long War,” a collaboration between the Center for the Study of the Drone and Carnegie Council for Ethics in International Affairs.

The panel:

Charles A. Blanchard, former General Counsel, U.S. Air Force; former chief legal officer and chief ethics official, U.S. Air Force; former General Counsel of the U.S. Army; partner, Government Contracts and National Security practices, Arnold & Porter, LLP

Kenneth Anderson, Professor of Law, American University, Washington College of Law; Visiting Fellow, The Hoover Institution on War, Revolution and Peace at Stanford University

Robert Grenier, former Director, C.I.A. Counterterrorism Center; former C.I.A. Station Chief, Islamabad, Pakistan; former Managing Director, Kroll, Inc.; Chairman of ERG Partners

Special thanks to Carl Colby and David Johnson of Act 4 Entertainment.

Transcript courtesy of Carnegie Council for Ethics in International Affairs.

headshot_KennethAndersonKENNETH ANDERSON: I’m going to kick it off. Notice that the other two panelists have long and distinguished government service. I am just a professor who talks a lot.

Unlike either of the other two panelists, I have no inside knowledge, for example, having been in on the process from the inside or anything like that. But I’ve been watching it for quite a long time from the outside. Part of my interest in this has been that I started out life, a really long time ago, in the human rights community looking at weapons, and specifically looking at landmines. I spent a lot of time engaged in pushing the ban-landmines campaign during the 1990s. One of the striking parts of that was spending a lot of time with weapons designers from NATO countries, essentially, during the late 1980s, into the early 1990s, and having many conversations with them in which it essentially was always the same thing: “Why can’t you guys build more discriminating weapons that cause less of an explosion?”

The truth is, they were. The movement toward precision was underway at that point. But as they candidly said, “Until we get better sensor technologies, until we get better abilities to be able to more precisely target, that’s going to be a long way off.”

So these issues have been very much with me for a long time, including as an academic.

Leading off, I’m going to talk for a few minutes in a way that I hope will help frame some of the more general discussion, rather than simply give my own views directly.

The first thing to say, I think, about drones is that drones, as we think of them in an armed sense, mostly are not armed. The overwhelming use of drones is as an unarmed surveillance tool, which was their original design, their original purpose—this sort of slow-moving thing that’s out there and it’s watching. That still overwhelmingly is the function that they play.

The second thing is that drones are used in two quite different contexts. One is just another air platform in conventional warfare on a conventional battlefield. It doesn’t really play a role that’s substantially different from  that would be of a helicopter, a fixed-wing aircraft, or somebody that’s on a ship at sea firing off a cruise missile.

I don’t think that’s really the issue that we’re here to talk about tonight. It’s the other use of drones, where it’s off of something that gets described today as a hot or conventional battlefield. It may be someplace far away, and it’s essentially targeting somebody as an individual identified target or a small group of people that one has put in one’s sights.

That targeted killing is, I think, what’s really driving the discussion.

The drone is an enabling technology that allows for a remote platform that makes that easier to do in the sense that you can spend more time in the air, you’ve got loiter time, you’ve got the ability to watch the target, and all of these various features attached to it.

But it’s really just a technology. What we’re really, I think, mostly talking about is the practice that is enabled by the technology of increasingly individuated targeting and the question of whether that’s okay, not okay, whether it’s a good thing that one should be trying to get close in counterterrorism operations to identifying the person that one is going after and being able to target that person and nothing more.

In that sense, I guess, in a way, it’s actually a discussion of targeted killing enabled by a certain kind of technology, but also, in a certain sense, leveraged up, because it becomes much more possible to do that if you don’t have to send in a SEAL team on the ground, find a way to extract them, think about all the things that might go wrong in that operation. Instead, you’ve got a drone that is circling overhead, and if things don’t quite look right, it can just wait another day and take the shot some other day—not always, but an awful lot of the time.

So that, I think, is a lot of what the framing issue is about. Then I guess I would add to that as well, a couple things that drones and targeted killing are not.

Number one, this is not Skynet. This is not some universal surveillance mechanism watching everybody from the sky. Some day maybe, but we’ve got to get over the sci-fi thing.

The second thing is that drones are not rōnin aircraft, a kind of masterless samurai roving the globe looking for targets to pick off and, boom, a missile comes out of nowhere. They are a highly embedded technology that requires a large number of people to keep them up in the air, to refuel them, to keep them flying, to do all the stuff that has to be done. The pilot may be sitting in Nevada, but the actual operation of the thing has to take place quite close to where it’s being used. There has to be an airstrip. There have to be people to refuel. There have to be people to do all that stuff.

So it’s not surprising that The New York Times ran a piece a couple weeks ago saying that the loss of Afghanistan as a base of operations will clearly have an impact on drone operations in Pakistan. The better analogy is not sort of global roaming attack thingies, aircraft or birds or something. It’s probably better to think of it as being more like a craft that has kind of like an aircraft carrier base—able to go out, within theater, a certain distance away, but it’s always sort of tied in that way.

From a legal and a moral standpoint, the two large questions, I guess, legally would be—this targeted killing takes place across borders, where sometimes the United States has consent to be doing this and other times it doesn’t have the consent of the sovereign state where it’s actually making that attack. So there’s a question as to whether that crossing of a border and striking in a neutral state is legal or, for that matter, ethical.

Second, whether it’s legal or ethical or not, then there’s a question of what the proper legal rules are under which that operation should be carried out. The possibilities for that will fall into the general categories of—this is not an armed conflict that’s taking place in the place where you’re doing it and in the manner you’re doing it. Therefore, you are bound to follow ordinary domestic law, rules, and human rights standards, which essentially leads you to law enforcement standards one way or another—requirement to try to detain, an attempt to arrest, non-use of lethal force, the things that one would normally associate with law enforcement.

However, it’s possible that one would hold, as the U.S. government does and has throughout this, that the people that it’s targeting in these places are actually targetable as members of adversary forces, as well as terrorist groups, who can be targeted wherever they go, subject to these first considerations I raised about the rights of neutral states.

Third, and I think the issue that will be most pressing into the future, will be the question: What about targeting that takes place when you’re not in a 9/11-driven conflict down the road? The easiest way to think about that is to skip all of today’s facts and circumstances and imagine—suppose we were talking about a resurgence of Sendero Luminoso [Shining Path] in Peru 25 years from now, and the president becomes aware that these guys decided that America is the bad guy, and, on whatever basis, decides that there is going to be some form of targeted strike against the leadership of that group. What is the law that is going to be applicable there? What will be the legal basis on which that happens? Down the road this is going to be an issue, even once the current stuff related to the AUMF [Authorization for Use of Military Force Against Terrorists]or the 9/11 conflict has gone away.

Let me say one last thing by way of framing. I think that, just factually—and again I’m speaking as somebody who has spent a long time looking at precision weapons issues, dating back to the 1980s, and comes out of this from a human rights standpoint—I look at it and I think, whatever the issues are about people that are innocent collateral damage in the strikes or mistakes that are made or any of those things, by comparison to weapons as I knew them in the late 1980s, let alone what was used in Vietnam, this is a step forward, seen over the longer term, that is just astounding to me.

One has got to understand, I believe, unless one believes that the use of force is simply not justified at all and therefore any civilian death in this is a war crime or a bad thing or morally not justifiable—if you believe that the use of force is justified in the circumstances and that the question is going to wind up being what the most discriminating use of force is that you can apply in that situation, drones will very, very often come out ahead of everything else, including, very often, the insertion of a human team.

The problem with that is that for many people, if, in one sense, you agree with what I just said, is that a feature—that drones are the most discriminating—in another sense, turns out to be a bug, because the very fact that it’s so discriminating and so discrete enables a political leadership to be able to have recourse to it very easily. The question that then arises is whether this form of the projection of force—discrete, targeted, potentially discreet, so that it’s hard to attribute who did it—does it make the use of force too easy?

The one thing that I will say for my own part in that is that I think that that’s actually a terrible moral argument. The question of whether political leadership reaches too easily to the use of force is not a question that one should settle by saying that your forces are not taking enough risks that they otherwise don’t need to take. The answer to that question has got to be that you have to find ways to confine what your political leadership does. You can’t confine your political leadership by using your own soldiers as hostages.

With that, I think I will turn it to Chuck.

headshot_CharlesBlanchardCHARLES BLANCHARD: I’m going to follow on a little bit about what Ken said about the drone technology, talk a little bit about the perspective of a government lawyer after 9/11 and why we are where we are, from a legal framework point of view, and then, finally, I’m going to offer some initial thoughts about where we got it wrong and where I think we need to go in the future.

First, on the drone technology. I think the problem we have is that we get so focused on the weapons system that we are ignoring that the weapons system is just raising issues, but those issues are equally raised by an F-15 strike in Yemen, equally approached by a SEAL team. A lot of the legal and moral issues are agnostic as to whether it’s a drone, an F-15, or a SEAL team. So I think, in many ways, although we talk about this as a drone discussion, it really is a larger discussion about the appropriate conduct, legally and ethically, of war against a non-state actor.

The second point I would make about drones is that people act as if the biggest advantage of a drone is the fact that pilots are not at risk. The reality is, an F-15 pilot, an F-16 pilot, an F-18 pilot isn’t much more at risk, other than the inherent risk of flying any aircraft, than a drone pilot. We have complete air supremacy in all the countries that we’re talking about.

So why is this, then, a weapon system of choice? It’s a weapon system of choice largely because of persistence. This is a weapon system that can loiter over an area for hours at a time. An F-15, F‑16, F-18—two hours, three hours max, and they need to be refueled. A drone can be up for up to 24 hours, including time getting there and getting back.

The main advantage is that they can sit and wait, which allows for both tactical and strategic patience, which means that if your target is a particular individual, you are much more likely to hit that individual only and not their family, not other casualties. And, as Ken points out, the biggest use of this technology has never been as a strike weapon, but as an intelligence tool. These planes rarely will shoot, but they still bring back incredibly important intelligence. They are often used as a tool to identify targets by other platforms—F-15, F-16, F-18, as well as conventional ground forces.

Let me talk about the next area that I want to raise, which is, why is it that we are where we are, and what is the framework by which government attorneys have developed?

We are where we are because of a problem that our clients brought to us. The problem our clients brought to us is that we have intelligence that individuals in particular areas are highly trained, well financed, with capabilities to act globally, and we know that they have the intention of striking both Europe and the United States. The problem is, they are in areas of the world where they are really not subject to a law enforcement solution. Either they’re in the FATA area [Federally Administered Tribal Lands in Pakistan] or they’re in Yemen or they’re in Somalia, where calling the local police ain’t gonna solve your problem.

So, lawyer, what’s your solution? What’s a framework by which we can operate? Well, you always have to consider, as a lawyer, the international law and the domestic law. The international law—there are several potential theories, but the most viable is the inherent right of self-defense in the UN Charter. It says that if a third country has terrorists or individuals that are threatening you and they either decline to take steps to take care of the problem themselves or are unable to take care of it themselves, then you’re allowed to strike, regardless of issues of sovereignty.

As Ken points out, in some instances it’s made easier by the consent of the host country, but even when consent is not there, the lawyers point to the inherent right of self-defense.

What about domestic law? You always have to worry about domestic law. That’s where we have the Authorization for the Use of Military Force, which was passed within weeks of 9/11, which focuses on people responsible for the attack, the organizations that did the attack—i.e.,al-Qaeda—and individuals associated with them.

That right now is getting kind of long in the tooth. It’s now almost 13 years old. Arguably, it has become this incredible puzzle for lawyers to try to figure out whether what we’re doing now is still consistent with congressional intent in 2001.

So that’s why we are where we are. It’s because of a real-world problem, and that’s the framework that the lawyers came up with.

I promised you that I would say what we’re doing wrong. There are a few issues that I think are very serious mistakes.

First of all, largely because these were programs that were done by organizations that have a culture of secrecy, the intelligence agencies and the parts of the Department of Defense [DoD] that don’t operate in the white world, by and large the public has not really been given a lot of information about what is occurring. There has been a complete lack of transparency.

That raises two problems. One is, how in a democracy can you engage in lethal force against an enemy when you can’t really describe in any particular detail who the enemy is, why they were selected, and, more importantly, respond to criticism about collateral damage? You can’t really have a public debate about whether or not, in fact, there has been collateral damage and why you believe there wasn’t or what you believe the collateral damage was if you are not able to talk about the problem at all.

So I think the lack of transparency has built in a problem from the point of view of a democracy engaged in a war, but, more importantly, it has not allowed us to defend ourselves against accusations that we can’t respond to because it’s a classified program. So transparency has been a problem. I think we’re moving away from the days of secrecy, but it’s still not as transparent as I think it needs to be.

The second problem, I think, is that this is a really incredibly valuable tool, and it has been used with great effectiveness, largely in Pakistan and the FATA, in getting rid of very senior members of al-Qaeda central—extremely effective. I am convinced that it has resulted in plots that were ongoing being abandoned or being stopped because of what occurred in these programs.

The problem is, it was so effective that I think we may be reaching a stage now where it’s being overused. There have been press accounts about moving away from identifiable targets to what are called signature strikes. A signature strike is when you don’t necessarily know the identity of the target, but you watch them over a series of weeks and months, and their behavior is what you would expect of someone who is a high-level al-Qaeda official.

That has obvious dangers. You could very easily attack the wrong targets. You may not be able to distinguish between an Islamist focused on local issues, who is not a threat to the United States, and an Islamist who does have a more global perspective, who does want to target the United States and Europe, where, quite frankly, that is a legitimate target.

So I have a concern that we have moved too far with the signature strikes in ways that could potentially mean that we are making some errors.

The final issue is not really a criticism of what we have done, but is really more of a question. It was raised by Jeh Johnson in Oxford about two years ago. He asked the question: What’s the endgame? At what point do we declare this war over? [Editor’s note: Check out Jeh Johnson’s 2013 Carnegie talk, “Legal Reflections on the Past, Present, and Future of National Security.”]

We have pretty effectively demolished al-Qaeda as it existed in 2001. But the problem is, that’s no longer really the threat. It’s not al-Qaeda anymore. It’s morphed; it has networked. The biggest threat right now is probably an organization that did not exist in 2001, and that’s al-Qaeda in the Arabian Peninsula [AQAP]. That’s probably the biggest threat to us now. They are affiliated with al-Qaeda, and I can make a legal argument as to why the authorization for the use of military force applies to them. But it’s a new threat and a different threat.

It raises the issue: Are we in a perpetual war against any terrorist group that is going to target the United States? If that’s what we are, is the authorization for the use of military force that took place in 2001 really the vehicle we ought to have? Ought there to be a different approach?

I don’t pretend to have any answers here, but I do think it would be very troubling to think of a world where this is a perpetual war. It may be that we will still have to target threats. My view is that the threats are different, and we ought to go back to Congress for a more detailed, up-to-date expression of what it is we’re fighting, and not rely on something that really is very different. The world is different, the threat is different, the tools probably need to be different, and we ought in a democracy to have congressional authorization for this new stage in what we’re doing.

headshot_RobertGrenierROBERT GRENIER: As Carl mentioned a few minutes ago, I spent most of my career, 27 years, in the CIA. As you can imagine, over those 27 years, most of them having been spent in the Middle East dealing with terrorism, dealing with counterproliferation, trying to topple governments—notably that of Iraq—I have been accused of a lot of things. Scholarship is not one of them.

Unlike the two very smart fellows off to my left, I’m just a practitioner. I’m somebody who has had to try to puzzle things out as he has gone along. Specifically, I’m a practitioner who at basically two-year intervals had to sit down in a room alone with a document. I had to read that document and I had to sign to attest once again that I had read it, that I had understood it, that I would abide by its dictates. That document was Executive Order 12333. It was signed byRonald Reagan in 1981. It says, in effect, that the U.S. government will not engage in assassination.

Yet here we are this evening talking about activities which, to most people’s minds, look a great deal like assassination.

How do we deal with the threats that we’ve been talking about without using assassination? I can tell you that our view and the legal guidance that we have had in the intelligence world has changed markedly even just in the last few years. Back in 1999 and 2000, I was the chief of station in Islamabad, Pakistan. I had responsibility for Afghanistan as well. We had Afghan tribals who were shadowing bin Laden and telling us on a given day where he was, what town he was in. We had what were referred to at the time as lethal authorities.

Yet if one of them had had the opportunity to shoot bin Laden with a pistol, we would have had to tell him, “No, you must not,” because that would have been assassination. We were asking them instead to try to arrest him, and had he resisted arrest, they would have been able to use violence in their own defense, and bin Laden would probably have been killed in the process. But we could not engage in activities at that time whose intent was to produce the death of bin Laden.

Mind you, we knew that he was a threat. He had already blown up our embassies in Nairobi and Dar es Salaam. He had declared jihad against the United States. He had said that it was a moral duty of Muslims around the world to kill Americans. There was no question as to either the fact or the imminence of the threat. Yet we couldn’t take that action.

Clearly we have come a long way since then. Activities that before 9/11 we would have said were assassination—now, as Chuck has pointed out, we are simply exercising our sovereign right of self-defense.

But as in any instance where agents of the U.S. government are empowered to use lethal force against others, there are certain criteria that apply. My friends here can correct me, but I intuit them to be three:

  • One is that the target that we’re focusing on has to pose a clear, present, and imminent threat of death or violence to Americans or to our allies.
  • Secondly, other methods must not be availing. If we could call up the local constabulary and have them arrested, obviously we should do that rather than engage in targeted killing.
  • Thirdly, the threat or the risk of collateral damage—what is euphemistically referred to as collateral damage—killing other people at the same time, must be small and must be proportionate.

There are probably very few—there may be some; I don’t want to foreclose the possibility—but I think certainly the people sitting up here and the majority, I should think, of Americans would probably think those were common-sense rules and that under those circumstances, we ought to be able to engage in this activity.

My personal view is that the legality around this—and again, Ken and Charles are lawyers; they may actually have a very different view on this—I think that’s really pretty clear and straightforward. The problem is when you actually try to implement these rules. Imminence of threat: When is a threat imminent? It’s not always that easy.

I remember back when I was the director of the Counterterrorism Center, I put forward the name of an individual who was in East Africa, and I said this person ought to be on a kill list. (We didn’t call it that at the time.) The lawyers pushed back. They said, “Oh, yeah, bad guy. He’s killed people in the past. Definitely has bad intentions. But in his current circumstances, he does not pose an imminent threat.” He didn’t get on the list.

In retrospect, I think, in fact, that they were right. Maybe you don’t want to have the practitioners who are seeing the issue right from there—maybe you don’t want to have them making the decision at the end of the day.

Are other methods availing? Are other methods not available or are they just inconvenient to use? It can be a consideration.

The big one: collateral damage. What is acceptable collateral damage?

Back before 9/11, there were a couple of famous instances in which the United States knew precisely where bin Laden was at a given time, knew which house he was in. The proposal was to send cruise missiles in to attack him. In both instances—they were quite different, but in both instances—the decision was made that, no, other people would die and the collateral damage was not acceptable, and they refused to launch the strike.

There are any number of far more recent examples that we could point to where it was maybe equally problematic—maybe more problematic—and yet we came out in a very different place at the end of the day. I think of Baitullah Mehsud, the founder of the Pakistani Taliban, someone who had the blood of many people on his hands. He had publicly declared that he wanted to engage in terrorism in the continental United States. He was killed in August of 2009—I left government; all I know is what I read in the papers. In the papers, they say that it was in a drone strike. His wife and his father-in-law were in the same house, and they died as well, under circumstances where that was probably known by the people who pulled the trigger.

Was it the right thing to do? Was it not the right thing to do?

As difficult as these circumstances are, imagine how much more difficult they can be in the example that Chuck said, where we engage in so-called signature strikes, where we’re not focusing on a given individual whom we know, whose pattern of activity we know. It’s a group of people who, by their actions, appear to be suspicious.

I think of a time many years ago—I hope that our analysts and our targeters have become far more sophisticated since—a fellow who worked for me for years was back at headquarters in Langley, and a young analyst came to him with an overhead photograph. It was of a group of individuals. They were all lined up in military formation. They appeared to be engaged in calisthenics. They were in an area which we knew was being used by militants who were attacking across the border into Afghanistan.

My friend saw the photograph. He looked at it and then he tossed it dismissively on the young fellow’s desk. He said, “They’re praying.”

Signature strikes: It can be a very, very problematic proposition.

We talked about having political support. I have noted—I have been somewhat amused, frankly—that the Obama administration, as much as it tries to distinguish itself from the Bush administration that came before, has engaged in behaviors very, very similar to the Bush administration. I’m thinking about the instance where certain tactics that the Obama administration has employed in what we used to call the war on terror, which no one was questioning in the early days, but where that tacit acceptance eroded very sharply—as Chuck has pointed out, they were very reluctant to seek permission from Congress or even to inform Congress. Yet I would argue that in instances where force is being used in our name and on our behalf, we ought to get a vote, or at least our representatives ought to get a vote.

That leads me to the final issue that I want to raise, which has to do with congressional oversight. I have benefited greatly from my close encounters with congressional oversight over the years. But I would have to tell you that it has largely been a disaster. I’m sure that there are at least two sides to this story. I don’t claim objectivity. But if I had to sum up the problem in 10 words or less, I’d say it’s because Congress wants to be respected, they want to be consulted, but they don’t want to take responsibility, at the end of the day, and they certainly don’t want to be held accountable afterwards.

You might think, given my experience, that I would want less congressional oversight rather than more, but, in fact, I think that there ought to be more. In fact, I think that the one power that is given to Congress to stop activities that it objects to is the power of the purse. By god, I think that the oversight committees ought to use it. I’m not aware of a single instance in which the oversight committees over the intelligence community have actually, through the authorization process, proscribed the intelligence community from doing anything. It seems to me that if they were on the record having voted that money ought not to be appropriated for a given purpose—they would then be on the record and I think we could at least count on some accountability from Congress at the end of the day.

We talked about the fact that this whole issue of targeted killings raises a number of very important, very difficult questions. I guess my question, most simply put, is, who decides? Is this a garden-variety decision that ought to be delegated down, whether it’s to the military or to the CIA or to somebody else, or does this rise to a different level?

All I know these days, again, is what I read in the newspapers. I understand that the current administration has a rather elaborate process for putting people on a so-called kill list and that there may be multiple kill lists. At the end of the day, who should make the decision?

CHARLES BLANCHARD: I think the way I would say it is that the decision as to the criteria that are going to be used really ought to be a presidential decision. However, the actual mechanics of deciding who is on that list is really not one you want the president sitting there—the application of the criteria should be done by levels below.

But I think it’s serious enough and, let’s face it, the political consequences of getting it wrong, even aside from the ethical and legal consequences, are so severe that you really want fairly senior officials involved. That has actually been the case in both the Bush administration and the Obama administration.

KENNETH ANDERSON: I guess I would add to that that I have the same instinctive reaction that Chuck has that this is not something where, in a democracy, the president should actually be deliberating and making that final decision. It’s too personal at that point. It should be something, I think, where the president has the ability to decide not to sign off or to say, go gather more intelligence, or something like that. But there’s something, I think, disturbing in a democratic process about investing that decision in the president as an individual signing off on each one of these things and actually making that decision, rather than being a certain form of oversight.

But I also think it’s important not to become morally sidetracked by the fact that any targeting process that attempts to take targeting seriously and actually weigh up the intelligence and gather information in a rational fashion, even with all the mistakes that you guys would know go into that process—as an outsider, I don’t see the sausage-making—that’s always going to be a bureaucratic process. And that’s how it should be, because we want lots of people weighing in. We would like to remove it from simply somebody making a sort of instant decision to pull the trigger.

I think that point, then—the idea that it’s a kill-list bureaucracy—is actually the right thing and not the wrong thing.

I’m curious to know what your reaction is to the idea of the president’s role in this.

ROBERT GRENIER: I react instinctively in the same way that you both do. I just don’t like the idea. I’m not sure I can articulate precisely why. Chuck said certainly the criteria there employed really ought to be something the president signs off on. I would absolutely agree with that. But at the end of the day, do we really want the president making the decision as to whether someone should go on the list? Again, we’re not just talking about a decision. There are a whole series of decisions. It seems to me there are very different people who end up making these individual decisions.

Does a given individual potential target pose an imminent threat? It seems to me that’s an analytic judgment. Is this person in a position and does he have the intent, from all of the intelligence that we have, to actually kill Americans or their allies? That’s kind of an analytic thing.

But if you’re talking about whether in a given instance, when an opportunity comes to strike a given individual, there are too many innocent people who are likely to die—it seems to me that’s really a moral judgment. I’m not sure who is better empowered to make that kind of a decision.

Then there are the political and the policy decisions. Yes, we think that this is an individual who really ought to be on a so-called kill list. Yes, we can kill this individual without innocent people being killed. But you know what? It’s going to thoroughly undermine our relations with country X, which is going to have all of these other unintended consequences. That’s a political decision. That’s the sort of thing where, frankly, often the secretary of state, the secretary of defense, the president himself perhaps—himself or herself—may really need to make the call on.

Again, it’s a very, very gray area. But I agree, so far as talking about whether an individual ought to be put on some theoretical kill list—I just don’t like the idea of the president making that decision.

KENNETH ANDERSON: Let me just add to that as well that this idea of a process for targeting in these kinds of circumstances, where it’s intelligence-driven, targeted killing, where you are looking to essentially make a decision on the basis of an intelligence process—these have got to be processes that we are comfortable with for this president, the next president, the next president after that. We can look for ways to improve those processes and the rest, but the processes that we’ve got cannot be hinged, in a long-run democratic republic, in a way that says it’s okay for this president to do that, but for the next one it’s not okay. We’ve got to have something that one feels has legitimacy across presidential administrations.

CHARLES BLANCHARD: One thing I might point out is that we’re talking about targeting outside the live battlefield. The decision about what occurs on any given day in Afghanistan is not done by the president, the secretary of defense. It’s done by folks at the combined air operations center someplace in the Middle East. Probably a general officer signs off, but largely it’s the work of senior, but not that senior, officers.

I think we need to distinguish between the active battlefield, where traditionally that has been done by colonels and generals and admirals, from the sort of off-the-live-battlefield, which is what we’re talking about, where I think the political sensitivities, the unique legal and ethical issues are heightened enough that it does demand a more rigorous process.

Questions

QUESTION: My name is Fred Pasternack. I’m really not affiliated. I’m a retired Air National Guard flight surgeon, very much interested in the topic.

It seems to me, though, that in addition to having it go beyond any one president into the future, it’s about the technology as well and about definition. I’m not very clear now what the definition of “assassination” is, as opposed to “targeted” or “signature” killing. I’m not sure, again, where you put the discriminant function in terms of what is imminent and what’s not imminent.

It seems that, just as the drone is simply a platform and it’s sort of a MacGuffin type of consideration, it’s what you do with the platforms, how you use the definitions, where you put the discriminant function that really is the issue. And that has to extend beyond current technology and into the future in terms of technology.

CHARLES BLANCHARD: And actually, dear to Ken’s heart and to mine is the whole issue of completely autonomous weapons, where there’s no human being doing it at all. Part of the answer is that we have tried and true principles that come out of the Geneva and Hagueconventions on international law that limit the use of force even in armed conflict. Those rules apply to the drones and they will apply to even a completely autonomous system.

But you’re right, those are eternal. In many ways, as our technology gets better at being more targeted, I think one effect of that is that the standard for collateral damage becomes that much more difficult. When all you have is a giant, 500-pound bomb that you drop over the skies of Germany during World War II and you’re lucky if you get within 500 feet, that’s a different standard than a Hellfire missile that’s precise, where the expectations are higher.

So the technology, I think, actually should lead to fewer civilian casualties and less of a toleration for civilian casualties.

On the issue you raise about how we distinguish between assassination and targeted killings, I think it’s important to place it in the mindset that we’re in a state of war. The U.S. position is that we are engaged in an international conflict with a non-state actor or, at a minimum, we are engaged in some countries with a non-international conflict, but it’s a war, and the laws of war apply.

Traditionally, taking out the senior leadership of the opposing enemy has long occurred. During World War II, we got intelligence that the admiral who ordered the attack on Pearl Harbor was going to be on an airplane in a particular place, and we sent in planes for the very purpose of taking that plane, not because that plane was a problem, but because we knew that admiral was on board.

In the time of war, there’s a long tradition, as part of a military strategy, to take out senior leadership, as part of the strategy of fighting that war, which is how you distinguish it from assassinations, which are in a context outside of war. That’s a line that legally has been drawn, which may not be completely comforting, but at least it narrows what’s being done. We can’t take out people we don’t like in England, for example.

QUESTION: My name is Sarah Kreps, from the Council on Foreign Relations and Cornell University.

There seems to be some sense of agreement about the need for more transparency and oversight. I’m curious, since we have someone from the CIA and someone formerly associated with the military, whether you see the proposed move from the CIA to JSOC [Joint Special Operations Command] as doing anything useful or meaningful in that respect, in terms of helping with transparency.

Then I have sort of a broader, maybe devil’s-advocate question about whether covert action during the Cold War is a historical analogy to think about in terms of the legality of these sorts of operations. During the Cold War this sort of thing happened all the time, without much oversight. To what extent is this similar to or different from those experiences?

KENNETH ANDERSON: I’m going to defer to the guys who have done some of this.

ROBERT GRENIER: I didn’t do any of these things—not the illegal ones, anyway.

With regard to transparency, I think this issue of whether a given action should be taken by the CIA or by JSOC or by others in the defense community is a little bit of a red herring. At the end of the day, I think it’s probably the same people who are going to be doing pretty much the same things under the same authorities—in this case, probably Title 50 authorities, which govern the intelligence world, versus Title 10 authorities, which govern the military. When you’re taking actions outside of an active war zone—and help me out here, Chuck, if I wander off the path—then normal Title 10 authorities do not apply; it’s Title 50 authorities. However, you can take individuals, uniformed military, and bring them into the intelligence rubric in order to take action.

I think the most obvious recent example of that was in the killing of bin Laden. As I understand it, the JSOC operators who raided Abbottabad, Pakistan, and killed bin Laden were operating under the authority of Leon Panetta, who was the CIA director at the time. They were essentially choppered over for that purpose and then, presumably, when they went back across the border into Afghanistan, they turned back into pumpkins.

With regard to, as you say, things that used to happen all the time back in the Cold War, I think there are some important distinctions that we need to make here. Any time now, since theChurchPike hearings of the 1970s and the reforms that took place subsequent to that, any action whose purpose is to affect events on the ground, as opposed to merely report on them, can only be engaged in with presidential approval, under the terms of a so-called presidential finding.

Now, back in the dark ages, when presidents may have leaned back and said, “Can’t you do something about Fidel Castro?” then it was perhaps possible to do all sorts of things that would be absolutely illegal now. But since the Ford administration, any time the intelligence community was called upon to do anything which, again, affected the situation on the ground, whether it was killing or whether it was spreading propaganda—something that was designed to have an effect in the real world—it could only be done if approved by the president himself or herself under a finding.

Does that help you?

CHARLES BLANCHARD: I talked a little bit about transparency. JSOC isn’t exactly a warm and open, press-friendly organization. I think the CIA is just inherently, by its very nature, culturally not going to be transparent. I think that’s true of the Special Forces within DoD as well.

That’s not as true of other parts of the military. One solution might be, as part of a new authorization for the use of military force, to effectively do a knit on Title 50 to allow these authorities to be done someplace else. That might be an option.

But I do think we’re in sort of a silly world now, where people read about it in the paper, public officials talk about what’s being done, general counsels of various departments are giving speeches, and yet we don’t talk about what’s happening. When there’s a drone strike that appears to have gone wrong, even if we don’t believe what’s being said has actually occurred, we’re not allowed to talk about it.

KENNETH ANDERSON: Let me just add, on the legal framework, as I understand it—looking, again, from the outside, but particularly reading President Obama‘s May 23rd National Defense University speech, which, when it comes to the discussion of drones, I think is just a remarkable document.

He lays out there, and with the White House statement that accompanied it, essentially what Bob suggested as being the criteria for forward-looking activities, taking out people considered to be threats in the future, but not saying when exactly that was going to kick in—it would be sort of the post-war—but being very clear that the legal situation, as the United States sees it, if it is engaged in the full extent of its legal authorities under a law-of-war paradigm, permitted to engage in status-based targeting on the basis of membership in the group, where that is established by evidence, doesn’t require individuation, but is essentially the identification of hostile forces, including groups.

These are sort of the most capacious legal authorities, in which, then, the president’s speech says, “And we aren’t really dying to exercise those full authorities. We, as a matter of policy, want to do something that’s far more restrictive than that. But let’s be clear: We regard this as armed conflict and we do regard it as being okay today to wind up targeting people who are otherwise lawful targets even if they have crossed borders. What restricts us in that is the law of neutrality in sovereign states, and their rights, where they have gone. But the war follows the fighter, and if the fighter is a lawful target in Afghanistan, as a matter of just targeting that person, he remains a lawful target elsewhere. There’s not a legal geography of war that applies.”

The second thing, just on the assassination issue—it is very striking to me, the evolution of the views on assassination as a legal matter. In 1989, Abe Sofaer, the then-legal advisor to the State Department, gives an inter-agency-cleared speech that lays out the U.S. view on addressing terrorism and state-sponsored terrorism and terrorist groups. In that, he addresses the 1980s view of what that ban means and says that it only applies to a killing that is otherwise unlawful.

You look at that and you think, wait a second. So it doesn’t mean anything. The answer is, that’s quite right, in the context of the discussion that went on in the 1980s, where it was considered to be a sort of hortatory view.

Now, by the time you get to the 1990s, under the Clinton administration, this has evolved into something very, very different.

But when Harold Koh and three or four other senior officials of the Obama administration stand up and start delivering these speeches, in the first Obama term, they quote almost word for word what the 1989 speech said. Koh says, as a legal matter, it has to be an unlawful killing; otherwise, the assassination ban doesn’t apply. [Editor’s note: Don’t miss Harold Koh’s upcoming Carnegie Council interview on February 25.]

It’s much less than meets the eye.

QUESTION: Allen Young.

There’s a lot of talk about how we have to distinguish between activities conducted outside the United States and activities conducted within the United States. The Constitution arguably applies only if the activities are conducted in the United States. Is that a viable distinction?

Continuing on that, does it make any difference if the combatant whom we want to target is a U.S. citizen, as contrasted with being a foreigner?

CHARLES BLANCHARD: This is not a view that’s accepted by all lawyers who look at this, but the view of the Obama administration lawyers is that the constitutional right of due process does apply even outside the United States, which is why Attorney General Holder gave a discussion about what the criteria would be if we found out that one of our targets was a U.S. citizen. Relying on criminal law kinds of concepts about the use of deadly force came up with an imminence requirement, a requirement that there be no alternative. Although those are criteria that we largely apply outside for a U.S. citizen, the position, I would say, is that those are legal requirements under the U.S. Constitution for a foreigner.

There are criticisms on the right and the left. The right says that that is taking the Constitution well beyond its intent and that if you are a member of a hostile force, your status as a U.S. citizen is irrelevant. The left takes the view that due process means due process, which means judicial process. In some sense, the Obama administration is between these two views.

ROBERT GRENIER: I’m not sure I really understand this at all. This is not just a theoretical point. Anwar al-Awlaki, who was targeted and killed in Yemen, in a drone strike, was an American citizen, which I think was perfectly appropriate. Even though he was an American citizen, he was well beyond the reach of U.S. law. In fact, he was beyond the reach of any competent civil authority in any country, including Yemen. I think he met all the criteria that we’ve talked about in terms of imminence of threat and all the rest.

I’m not really quite sure what was different legally in his case than would have applied if he had been a foreigner.

CHARLES BLANCHARD: I think the position in the Obama administration would be that these issues of imminence would not necessarily be legally required to go after a member of al-Qaeda, as a legal matter. As a prudential matter, yes, but as a legal matter, no.

But for a U.S. citizen, it’s not only a prudential factor; it is a legal requirement. And that’s the difference.

ROBERT GRENIER: I think that points up another thing—I don’t think we want to spend too much time on this—an issue that I’m a little bit uncomfortable with, and that’s the idea of saying that the reason that we can employ these authorities against terrorists overseas is because they belong to an organization that is, in effect, at war with us, and that therefore this is not just analogous to war; this actually is war.

I would strongly disagree, under the current circumstances. I think there is some little remnant of the organization that struck us on 9/11 that exists somewhere. There are certain people for whom you could draw a line back to that organization that existed on the 11th of September 2001. But right now al-Qaeda is essentially a brand. The people who pose a threat to us are largely autonomous, largely dispersed. They don’t really belong to a global organization, I would argue, properly so-called.

To the extent that we talk about authorities that have to do with laws of war, I think that’s only true by analogy. I think the issues are: Are these people reliably known to pose a lethal threat, a mortal threat, to Americans and to our allies? Number one, is there a threat? And then, number two, are they beyond the reach of the law? Are they in ungoverned space, places that arguably don’t fall under the effective authority of any government?

That’s the problem that we have in Yemen. The government in Yemen doesn’t control much outside of Sana’a. This is a problem in the tribal areas of Pakistan. Those since time immemorial have been buffer zones. They’re not controlled by the government in Islamabad. That’s really the problem that we have.

I don’t think that we should be tying our authorities to the membership of such individuals in a given organization.

The obverse of that is that I don’t feel at all comfortable, for instance, when we say thatHezbollah is a terrorist organization. Well, Hezbollah is a lot of things. It’s a humanitarian organization. It’s a political party. And, yes, it’s also a terrorist organization. Does that mean anybody who is affiliated in any way with Hezbollah should be subject to lethal attack by U.S. forces, simply in virtue of the fact that he or she is a member of Hezbollah? I don’t feel really comfortable with that, because many of those people don’t pose any clear physical threat to anybody. [Editor’s note: Check out former FBI counterterorrism analyst Matthew Levitt‘s 2013 Carnegie talk on Hezbollah.]

KENNETH ANDERSON: Let me try and answer that as if I were President Obama, on the basis of his May 23rd speech. I think that he would wind up saying—and says in that speech—that he thinks that the right place to be is in an imminence, post-war setting, but we’re not there yet, and wouldn’t agree that it’s so much remnant that there isn’t actually grounds to think of it as a war, but would like to get to that place. But in getting to that place and what that place finally looks like—with this very significant qualification that what we’re describing as an imminent threat for something that we’re looking ahead to say is some plot that’s immediately going to come to fruition—it’s the Detroit bomber guy and al-Awlaki is supervising the placement of that.

President Obama’s speech is actually pretty clear in saying that that’s not actually the standard, even if we were beyond the actual circumstances of a legal armed conflict and in some future where that war is over; that the United States’ position runs all the way back to theShultz doctrine in the early 1980s at least and probably further back than that, which is to say that imminence of threat can be satisfied by—the president’s words are “a group or a network of groups”—it doesn’t have to be a particular individual and it doesn’t have to be a particular plot—where they have satisfied the imminence threat on an ongoing basis, so to speak.

You aren’t limited in self defense under imminence to simply taking out that threat and then having to sit with your hands folded waiting for the next threat, waiting for the next threat, waiting for the next threat. You are allowed to develop a case of ongoing threat in the imminent threat presented by that group as a group and the only way you’re going to address it is to take out the group itself and to attack it as such.

Now, the question that will arise is, and the difference between that and a war is what?

CHARLES BLANCHARD: The problem, though, is that there are some groups for which there is a core that clearly has global aspirations, but the vast majority do not. I would say that’s true of the al-Qaeda-related groups now in Syria, for whom the motivation is not the United States at all, but is to take out the regime in Syria. Yes, they’re an al-Qaeda organization. They are affiliated with al-Qaeda. But their motivation, their focus, is very, very different. Another example is al-Shabaab, which, long before al-Qaeda, was really focused on Somalia and Somalian issues. However, there is a core within al-Shabaab that has more global aspirations.

Part of it is the challenge we have with living with the authorization for the use of military force that requires a link to al-Qaeda. If al-Shabaab were to say, “We’re not part of al-Qaeda. They’re good friends of ours, but we’re not part of them,” the legal basis to take actions against al-Shabaab would be gone under the authorization for the use of military force.

We have been lucky in that people have been embracing the al-Qaeda brand. Our joke in the Pentagon is that al-Shabaab hired the wrong lawyers.

But I do think that suggests that the authorization of the use of military force that we have right now is an artificial construct that really is long overdue for change.

QUESTION: My name is Rick Weaver, former Georgetown University international affairs student. I have enjoyed the comments and remarks.

A two-part question. Number one, which other countries have drone strike capability? If so, what criteria would they be expected to follow in conducting drone strikes? Survival of the fittest or an international forum or looking to the United States for their framework? Thank you very much.

CHARLES BLANCHARD: I think right now there’s a booming business in countries that are developing—a drone, I swear to god, is nothing more than a glider with a Swiss snowmobile engine. It is not high tech. We use high tech in that we have satellite links that allow us to remotely run these. That gives us an advantage. But any third-rate country could easily develop drones that are lethal. But they would have to be line-of-sight.

But there are many countries out there—Russia, China, Iran, name your threat—they have that capability now, and they are developing capabilities to even be more enhanced.

What are the rules that they are going to follow? It’s the rules that we, by our example, are setting. That’s the way customary international law works. We’re the big military power in the world.

In the cyber world, when I dealt with it, we always asked the question: What would we say if our adversary were to do this to us? How would we analyze that? How would we call it? Because we realized that we were setting the norms.

I think, in some sense, for good or for ill, we set the norms with targeted killings as well.

ROBERT GRENIER: I would add, it’s not just the norms that we are setting, but it’s the way those norms are perceived by others, which is far more contentious in many cases than the way that we would characterize it ourselves. In the view of many in the world, the United States strikes its enemies as it sees fit, wherever it wants to, and they can do so with impunity. That’s not necessarily the criterion that we would want others to apply.

QUESTION: My name’s Alex Pasternack. I’m a journalist with Vice.

Related to the question about these spaces, these power vacuums, that essentially allow for this kind of targeted killing to happen—obviously, the FATA, places like Yemen, where the legal rules are essentially being set by the United States—I suppose then the question arises about what the ethical and moral obligations are when there are no other laws in place, especially considering the collateral damage.

I’m curious to know, too, about this other battlefield that also seems to have nebulous legal rules, which is cyber, and how some of these questions about drones might find analogies within cyberspace, which I know is a huge consideration for the Air Force and other military now.

CHARLES BLANCHARD: There has actually been a really interesting project that a group of international law types have—they have been convened by the NATO Cooperative Cyber Defence Centre of Excellence, but they’re not working for NATO. They were convened. It’sMichael Schmitt from the U.S. Naval War College, law professors all over the world. They did a first cut at sort of a long war for cyber, called the Tallinn Manual. What’s really interesting about that is that they created a—where they had consensus, they laid that down as “this is what we all agree on.” But there was a lot of disagreement.

The conclusion they came up with is that if you apply the traditional laws of war to cyber, it leads to some fairly disturbing results. In their view, there are cyber attacks that fall below what we would call use of force. So the law of war really doesn’t answer them, other than to say that if you’re hit by one of these cyber attacks below the use of force, you can’t retaliate. There’s no right of self defense.

That has resulted in a second project that they are now working on to sort of address these issues.

I can say that there’s great awareness that cyber is the next frontier and that cyber, unlike a lot of other areas of military activity, is one that you don’t need a really large, sophisticated military budget to be very effective at. And so it’s one that our adversaries potentially—and by adversaries, I don’t mean the Chinas; I mean the Syrias and the Irans of the world—can be effective players. So there’s a great concern that we start thinking hard about what the rules of the game are going to be.

KENNETH ANDERSON: On the spaces question that you asked, one thing that I think is important in 2014, and especially going forward, is that, as far as I can tell, it’s a mistake to think of drones in a vacuum as a strategic tool, meaning that drones are used, as we have been discussing them here, as essentially a raiding strategy. It’s a counter-raiding strategy against a raiding enemy. This kind of took them by surprise, because they didn’t really anticipate that we could make raids out against them in ways that could be not just raids, but persistence, the persistence that Chuck referred to about the drone.

The second thing about them, however, is that increasingly, if you look at how they are deployed and what the United States’ military presence looks like in Africa, especially in the ungoverned spaces, the places in Africa where we’re establishing bases, I would say that the most important development in all this has relatively little to do with the drone and that the question that people actually ought to be asking from the standpoint of ethics, law, policy, these things, is, in fact, how comfortable we are with developing proxy wars in these countries. I’m quite comfortable with it, but I think we actually ought to ask the question.

We have understood that many of the terrorist groups that we’re dealing with are attached to a large insurgency within the country, a jihadist insurgency, that seeks to seize what we might refer to as kind of governance territory or governance geographies—whole political zones that they intend to govern the way that the Taliban governed Afghanistan and invited al-Qaeda in as its honored guest—or are like AQAP in Yemen, where there is an internal fighting wing and there’s an external one.

Much of the use of drones in Yemen appears, to me at least, looking from the outside—and I think increasingly the journalists would agree—we are acting far more outside of a targeted killing role and far more as the air arm of the Yemeni government in its civil war.

In that sense, I would say, as we expand that kind of strategy to other states in Africa that are fighting jihadist insurgencies that also have a transnational wing or a propensity to be happy to post them, we are re-merging our counterterrorism policy back into our larger geopolitics about what foreign policy we want to see with regard to countries like Kenya, with regard to countries like Nigeria, and elsewhere in Africa.

It now needs to be seen as, drones are a raiding strategy attached to a larger proxy strategy, because we’re not willing to do counterinsurgency on the ground ourselves. We’re looking to do it through forces in these countries and, at the same time, assist them in maintaining their stability and denying an insurgent takeover that we think would be bad for them, bad for the people in their country, bad for us, and kind of all-around bad. The model for that will beFrance and Mali.

ROBERT GRENIER: Sadly, our time this evening is at an end. I want to thank you all very much for attending and for your thoughtful questions.

On behalf of our very kind hosts at Carnegie and Bard College, as well as on behalf of Ken and Charles Blanchard, and myself, thank you very much, and good night.

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