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Terror Tuesday: What hope is there of reining in the Forever War?

While President Obama appears reluctant to act on his February promise to bring more transparency to the ‘kill list’ program and failed to provide a member of his Administration to testify about it before the April 23rd Congressional hearing, the Executive Branch may soon be nudged out of its inertia.

No sooner did Nawaz Sharif become Prime Minister-Elect of Pakistan this week than he declared that the CIA’s drone strikes must end because they “are challenging our sovereignty.”

The Bureau of Investigative Journalism says there have been 368 drone strikes in Pakistan’s tribal areas between the years 2004 and 2013. Between 2,541 and 3,533 people have been killed by the strikes, including between 411-844 civilians. As many as 197 of those civilians are children, according to the Bureau’s figures.

Sharif’s statement comes on the heels of a May 9th  ruling about lethal drones by the High Court in Peshawar. In a case involving the families of 17 people who were killed in March 2011 when a drone obliterated a communal meeting, the court ordered the government of Pakistan to "ensure that no drone strike takes place in the future” and to shoot down the drones if necessary.

Chief Justice Dost Muhammad Khan has drafted a resolution critical of drone attacks for Pakistan’s Foreign Ministry to present to the UN Security Council. He advised the government to consider cutting diplomatic ties with the US if the US acted to block the resolution. He has also asked UN Secretary Ban Ki-moon to set up a war crimes tribunal to investigate any future ‘targeted killings.’

Recent history suggests that the Pakistani and US governments will probably come to an arrangement that keeps the CIA’s death-by-drone program on track, and attempts to shroud the strikes in even greater layers of secrecy. But this kind of push back is bound to rattle a White House whose approach to criticism about the ‘kill list’ program has been to hunker down behind vows of greater transparency – and do next to nothing.

As secretive as the CIA is, it does have some Congressional oversight from the Senate and House Select Committees on Intelligence. The super-secretive Joint Operations Special Command (JSOC), which compiles its own ‘kill lists’ and carries out drone strikes in Yemen, Somalia and elsewhere, has had only minimal quarterly reporting requirements to the Armed Services Committees since 2012, in exchange for $10.5 billion (and rising) in annual funding. On March 6, 2012 its Commander, Admiral William McRaven, told the Senate Armed Services Committee that JSOC “conducts engagements in more than 100 countries worldwide” – so much for the antique notion that it is up to Congress to declare war.

JSOC’s footprint may soon become even larger. According to reports, CIA head John Brennan seems inclined to get the Agency out of the drone strike business and back to its traditional spying role. (Brennan also, by the way, recently decided not to appoint as head of the National Clandestine Service its interim director, a woman who reportedly ordered the destruction of videos of interrogations using torture).

With editorial writers making the case for “moving the bulk of the CIA’s drone program to the Pentagon” as the way of increasing transparency and oversight, there are now stirrings in Congress to prepare for that eventuality.

Rep. Mac Thornberry (R-TX) has recently introduced the “Oversight of Sensitive Military Operations” bill. It has to date a bipartisan list of 28 co-sponsors.

The bill would require that written post hoc notification of “kill/capture” counterterrorism operations outside of Afghanistan be given to members of the Senate and House Armed Services Committees and Subcommittees, along with a report “outlining all legal and policy considerations.” It says the information about the operations should be given “promptly” to the Committees, but doesn’t specify what exactly that means.

Craig Whitlock, writing in The Washington Post, doesn’t think the bill will do much to bring about meaningful transparency and that Rep. Thornberry, the current chair of the House Armed Services Committee, is mainly interested in formalizing oversight that has been going on and making it “clear to the American public that it’s happening.”

But Lawfare’s Robert Chesney has plenty of praise for this anemic move toward transparency:

What’s not to like? I have long had concerns with respect to whether there was adequate operation-by-operation transparency vis-à-vis Congress when it came to JSOC direct action outside of Afghanistan. This legislation speaks directly and clearly to that concern, while also moving the ball forward at least a bit in terms of forcing the executive branch to explain to the armed services committees the legal and policy elements that govern its decisions regarding the designation of individuals or groups as objects of direct action.

So a few more Members of Congress would be in the know – and the rest of us will have to rest assured that the JSOC’s operations are, in Thornberry’s words, “carried out in ways that are consistent with the United States Constitution.”

These days, that modicum of transparency might not satisfy Harold Koh. A well known human rights attorney, Koh joined the Obama Administration and then as Legal Adviser to the State Department became the first person to put forward a legal theory for the use of drone strikes in a speech he gave to the American Society of International Law on March 25, 2010.

Now back at Yale Law School, Koh gave an address last week to the Oxford Union which he said represented his personal views. He called it “How to End the Forever War?”

His recommendations: “1). Disengage from Afghanistan, 2). Close Guantanamo, and 3) Discipline Drones.”

While defending the Obama Administration and maintaining that the President has worked “to translate the spirit” of domestic and international law and apply it to a “new situation,” he expressed regret that Obama has failed to “put the full weight of his office behind the sensible policy that he first announced in January 2009.” No new policy is needed, he said, to close Guantanamo – just the will to do so.

He said he still supports ‘targeted killing’ – “but make no mistake: if we are too loose in who we consider to be ‘part of’ or ‘associated with’ Al Qaeda going forward, then we will always have new enemies, and the Forever War will continue forever.”

So how exactly has the drone strike policy worked in the past? He doesn’t say. But he wishes that the President had been less secretive about it. “As a result, the public has increasingly lost track of the real issues, which is not drone technology per se, but the need for transparent, agreed upon domestic and international legal process and standards.”

It seems increasingly unlikely that the domestic and international legal processes and standards undermined by the ‘Forever War’ will be shored up in time to meet the vast ethical challenge posed by drones that are in what the military refers to as the OODA loop (observe, orient, decide and act). Here, in legal terms, we are flying totally blind.

These fully autonomous unmanned aircraft systems can be programmed in the factory to make lethal combat decisions without any human input. There will be no need for a hand on a joystick eight thousand miles away when they take flight. And they are now ready to go: see this New York Times op ed about ‘the Robot,’ the Navy’s X-47B stealth plane.

Check out the US Air Force’s Unmanned Aircraft Systems Flight Plan, 2009 – 2047, which describes how autonomy will be implemented over the decades, from nano planes using swarm technology to detect threats and targets through artificial intelligence, image processing and sensory information, to fully autonomous tanker sized planes. Some of the document is redacted, but most of it has been unclassified.

The Flight Plan document states: “Ethical discussions and policy decisions must take place in the near term in order to guide the development of future UAS capabilities, rather than allow the development to take its own path apart from this critical guidance.”

Alas, there appears to be little sign that this is even on the agenda for policy-makers and government officials as the technology runs swiftly ahead of any attempt to grasp its legal and moral implications, or the uses to which it will be put.

It’s not unlike another noteworthy milestone that occurred this past week. Carbon dioxide levels reportedly reached the climate change tipping point of 400 parts per million, and we hardly paid attention.

© 2021 ACLU of Massachusetts.