The Future of Drone Warfare Under Trump
By Samar Warsi
While Trump tries to ban Yemenis from entering the United States, the United States continues to kill Yemenis in targeted drone strikes.
Last month, an 8-year-old girl named Nawar Al-Awlaki was killed in Trump’s first military strike in Yemen. The girl died two hours after a bullet struck her neck. Nasser Al-Awlaki, the girl’s grandfather spoke to NBC News saying American SEALs “entered the house and killed everybody in it, including all the women.”
Nawar is the first American citizen to be killed by the Trump administration. Her half brother Abdulrahman Al-Awlaki, also an American teenager, was killed by a drone strike authorized by the Obama administration in 2011 while having dinner at an outdoor restaurant. Both were children of Anwar Al-Awlaki, a U.S. citizen who had become a recruiter for Al-Qaeda and was killed in a separate drone strike two weeks before his son.
Despite all the memes, exit interviews and fanfare that surrounded Obama’s departure, the drone program is one of the former president’s most shameful legacies.
The tradition of extrajudicial killing is not only morally reprehensible; it is against international law and constitutional law, which guarantees due process. In fact, routinely killing scores of civilians as collateral damage in hopes of killing a few intended terrorists is a war crime.
During his two terms, Obama authorized ten times more air strikes than his predecessor, George W. Brush. A total of 563 strikes took place across Pakistan, Somalia and Yemen compared to the 57 strikes under Bush, according to the Bureau of Investigative Journalism.
The Obama administration claimed that just 64-116 civilians worldwide were killed in unmanned U.S. airstrikes, a number that has been widely criticized as a gross underestimation. Independent reports estimate between 480 and 801 civilian deaths – a figure six times higher than the official Obama count.
As his last week as president, Obama did two things worth noting. First, he moved to prevent a federal judge from revealing information about the highly secretive drone program; and second, his administration released a report detailing the number of drone strikes and civilian casualties that occurred in 2016.
Over the years, Obama consistently mentioned the importance of creating a legal infrastructure for drone strikes while simultaneously failing to create one.
In response to mounting legal pressure, the Obama administration released what is often referred to as the drone strike ‘playbook.’ The document highlighted that drone strikes were only approved if the targeted individual was deemed to be a “continuing, imminent threat,” capture was not “feasible” and there was a “near-certainty” that no non-combatants would be killed.
Much like the targeted killing ‘white papers’ that leaked in 2011, all of Obama’s subsequent efforts to create a legal framework have been full of flimsy and ill-defined terms. What are the parameters of “imminent?” What is “feasible?” How hard do you have to try to capture? What is “near-certainty?” Documents reveal that “near certainty” must be based on two forms of intelligence with no contradictory evidence. How strong does this intelligence have to be? How come there are so many reported civilian deaths if the near-certainty standard is being imposed?
Take a closer look at “imminent threat.” According to a 61 page compendium released by Obama in December of 2016, the United States examines a number of factors when analyzing the imminence of a threat, including:
The nature and immediacy of the threat;
The probability of an attack;
Whether the anticipated attack is part of a concerted pattern of continuing armed activity;
The likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action; and
The likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss, or damage.”
Moreover, “the absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of the right of self-defense, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent. Finally, as is now increasingly recognized by the international community, the traditional conception of what constitutes an “imminent” attack must be understood in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.
We don’t know what “immediacy” means in terms of an actual time frame. Although we do know that when the president approves a strike on an individual, the Pentagon and CIA have 60 days to act. 60 days, by any measure, is not “imminent.” Further, we don’t know how serious the “probability” of the attack has to be; we don’t know how big or small the “scale” of the attack has to be for the US to strike; and we don’t know what a “reasonable and objective basis” means when determining the imminence of a threat.
Similar problems arise when the definitions of “feasible” and “near certainty” are examined. A collection of seemingly straightforward words that are, in reality, so broad that they largely meaningless.
Laws must strike the delicate balance of being specific enough to create an ascertainable scope, but broad enough to allow for some discretion. In the case of drone warfare, it seems that nearly everything can be decided on the whim of the president with little or no accountability.
When legal limits aren’t clearly defined, it’s impossible to know when those limits have been most crossed. Continued secrecy precludes independent review of whether the drone program complies with international law, or even with the standards that Obama himself set forth.
The program has now been inherited by Trump who has expressed his intentions to be more of an interventionist than Obama. The decision making process and standard for drone use that Obama left behind is so abstract that virtually any of Trump’s actions could be justified as “lawful.”
Of course, there are times that drones must be considered as a tool in the broader national defense strategy, but their use must be judicious and within the parameters of clearly defined laws.
With Trump in office and rising uncertainty about the future, the unfettered drone program may be the one thing that stays constant.
Samar Warsi is a lawyer and journalist whose writings on emerging technology, legal innovation and American civil liberties have been published in Jurist, Vice, The Globe and Mail, The Dallas Morning News, The Boston Globe, Deseret and the Express Tribune. She tweets at @swarsi.