If a Drone Flies in Yemen: The United States and the Modern Definition of War

If a Drone Flies in Yemen: The United States and the Modern Definition of War

by Grayson Clary

 

On March 19th, the United States Navy launched dozens of Tomahawk missiles against Libyan targets in support of a multi-lateral military intervention.[i] On June 23rd, a drone attack on Somali militants earned Somalia the dubious distinction of being the sixth nation in which the United States is known to conduct drone strikes.[ii] And on May 2nd, a contingent of U.S. Navy Seals launched a raid in Abbottabad, Pakistan that killed terrorist leader Osama bin Laden; the Special Forces operators were prepared to fight their way past Pakistan’s own armed forces if need be.[iii]  However, these actions – as combative and deadly as they might have been – weren’t quite acts of war, at least not in the strictest sense. U.S. military strikes in Libya did not receive prior Congressional authorization,[iv] attacks associated with the U.S. drone campaign are considered “targeted killings,”[v] and the Navy Seals responsible for killing Bin Laden were under the temporary civilian command of the Central Intelligence Agency.[vi] That isn’t to say or suggest that these actions weren’t legal or justified; however, these operations do highlight the increasingly fuzzy and occasionally labyrinthine logic behind the use of lethal force by the United States. In the shadow of 9/11 and the flush of a newly minted age for global politics, war is foggier than ever.

History provides some context but little guidance as to what exactly constitutes the litmus test for war. Formal declarations of war by Congress as imagined in Article One, Section Eight of the United States Constitution (that is, those congressional resolutions that actually use the phrase “declaration of war”) are few and far between in U.S. history; in fact, there have been no such declarations since World War II.[vii] Some other engagements, with Congressional funding but without explicit authorization, have been justified on the grounds of resolutions passed by the United Nations Security Council. The prototypical example for this case would be the Korean War.[viii] Other military conflicts have received some form of Congressional stamp of approval short of a full declaration of war, the most notable instance being the Gulf of Tonkin Resolution in 1964 that allowed for U.S. military action in Vietnam.[ix] In response to the escalation of United States military involvement in Southeast Asia, and the perceived threat to Congress’ authority to dictate war it carried with it, the War Powers Resolution was passed in 1973 (over the veto of President Nixon) in an attempt to define more rigidly United States military involvement.[x] However, its success has been decidedly mixed. Interspersed along this timeline are dozens of other military actions that never received the Congressional nod at all, and were instead ordered on the authority of the President. In all then, the wars and other conflicts of the United States have been supported by a hodgepodge assortment of legal structures and definitions that leave clear judgments out of easy reach. These distinctions might seem semantic, but they raise vital questions as to which rulebook the United States is bound to play by when it reaches for the military option: who’s in charge, and what binds their behavior?

Into this mire comes the Authorization for Use of Military Force Against Terrorists, the Congressional resolution that has done more than any other law to complicate the discussion of military action in the era of the War on Terror. Passed on September 14, 2001 in response to the September 11 attacks, the joint resolution granted the President the following, wide-ranging authorization:

 

… to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

 

Thus began what President Bush called the War on Terror and what the Obama administration now refers to as Overseas Contingency Operations,[xii] a conflict without definite end waged against ill-defined non-state enemies and their affiliates.

 

The consequences of the resolution soon snowballed. It served as a justification for the invasion of Afghanistan, it prompted the controversial decision by the Bush administration to treat Taliban fighters as “enemy combatants” subject to trial before military commission rather than as lawful combatants subject to the protections of the Geneva Conventions,[xiii] it provided a legal argument for warrantless wire-tapping,[xiv] and it led to the development of the drone campaign of targeted killings. In more general terms, the resolution had two crucial impacts: it shifted in large part the authority to initiate military action against terrorists from Congress to the President, and it framed that authority in terms of a proactive and preemptive mandate. By consequence, when Seal and CIA operators executed the Abbottabad raid, conducting a combat operation on foreign soil, they did so on the order and authority of the President;[xv] when a Predator drone launches its payload of Hellfire missiles at suspected al-Qaeda militants in Yemen, the United States government considers that attack an act of self-defense justifiable under international law.[xvi] Although later Supreme Court decisions such as Rasul vs. Bush[xvii] and Hamdan vs. Rumsfeld[xviii] challenged and scaled back some expressions of executive power, the Authorization for Use of Military Force Against Terrorists decisively laid the groundwork for a striking extension of Presidential power and the creation of a broad grey area in which the War on Terror might be waged with substantial legal leeway.

At the same time, as mentioned above, the War Powers Resolution has been relatively toothless and ineffective in restraining executive authority. As U.S involvement in the 2011 Libyan conflict dragged on and President Obama chose not to seek Congressional approval for U.S. actions there, infuriated members of Congress introduced a number of resolutions calling on the President to justify the conflict, and Speaker John Boehner wrote to Obama to demand that he comply with the War Powers Resolution and seek Congressional authorization.[xix] Instead, the Obama administration replied that the War Powers Resolution did not apply since the Libyan intervention wasn’t, in fact, a war.[xx] Former President Clinton, who similarly chose to disregard cries for Congressional authorization during the NATO intervention in Kosovo in 1999,[xxi] supported Obama’s decision to act in Libya.[xxii] Again, differing definitions jockey for supremacy, each one allocating the authority to initiate military action in a different manner, an authority that increasingly seems to be slipping away from Congress.

The last decade has also seen an accelerating erosion of the distinction between the military and civilian spheres, thanks to the growing prominence of the Central Intelligence Agency as a participant in the War on Terror. The United States’ latest conflict is one that requires a different toolset than a typical inter-state war, a scalpel rather than a hammer, and the CIA has adapted to fulfill that niche. Now, agents of the CIA operate the deadly drones and choose their marks, while their paramilitary officers conduct cross-border raids in Pakistan or designate targets for air strikes in Yemen.[xxiii] All this is still the work of a civilian intelligence agency whose employees are anything but uniformed combatants. This, of course, conjures up prickly questions for the U.S. government: on what authority can CIA officers claim the right to use lethal force against foreign nationals? The attacks are permissible, in essence, because they are permitted, because the governments of states like Yemen and Pakistan give either their explicit[xxiv] or their tacit[xxv] consent (or are in no position to object, as with the Transitional Federal Government in Somalia which controls only a small fraction of the country they ostensibly govern).[xxvi]

Still, the strikes have prompted ire in the international community, including rebukes from the United Nations Council on Human Rights – particularly Philip Alston, special investigator on extrajudicial, summary, or arbitrary executions – related to civilian casualties and lack of CIA accountability to international law. The United States government promptly replied that the drone campaign represented a military operation that was, more or less, none of the Special Investigator’s business.[xxvii] Despite the fuzzy legality, then, of quasi-military CIA activities in the War on Terror, the U.S. seems unlikely to scale back or discontinue them; it speaks tellingly to the mindset of the Obama administration that General David Petraeus, commander of U.S. forces in Afghanistan, was chosen as the next director of the CIA while CIA director Leon Panetta was tapped as Secretary of Defense.[xxviii] CIA involvement in the business of war is, increasingly, a crucial element of the fabric of U.S. military engagement.

All these developments suggest, in broad strokes, a gradually cohering framework for the waging of a modern war. The saying that generals habitually prepare to fight the war they just fought seems to fall flat in the modern case; the United States practice of war making has demonstrated a striking flexibility over the past decade, an adaptability born of the exigencies of the War on Terror. Those demands are fundamentally reshaping what military engagement means for the superpower. War has been restructured, producing a vision of conflict that is predicated on executive rather than Congressional authority and prosecuted by a motley blend of military and civilian operators, soldiers and spies. Each drone, flying its sortie at the hands of a CIA pilot and at presidential behest, represents a new paradigm in 21st century conflict.



[i] http://www.bbc.co.uk/news/world-africa-12796972

[ii] http://www.theatlanticwire.com/global/2011/07/american-boots-hit-ground-somalia-after-drone-attacks/39539/

[iii] http://thelede.blogs.nytimes.com/2011/05/01/bin-laden-dead-u-s-official-says/

[iv] http://articles.cnn.com/2011-03-24/politics/libya.obama.criticism_1_libya-response-moammar-gadhafi-regime-change?_s=PM:POLITICS

[v]http://www.nytimes.com/cfr/international/slot3_012506.html?_r=1&pagewanted=print

[vi] http://abcnews.go.com/US/wireStory?id=13532735

[vii]http://en.wikipedia.org/wiki/Declaration_of_war_by_the_United_States#cite_note-Henderson2000-1

[viii] http://www.bbc.co.uk/history/worldwars/coldwar/korea_hickey_01.shtml#four

[ix] http://www.footnote.com/image/#4346698

[x] http://www.newsweek.com/2008/07/11/wrestling-over-war-powers.html

[xi] http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ040.107

[xii] http://www.washingtonpost.com/wp-dyn/content/article/2009/03/24/AR2009032402818.html

[xiii]http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aMGQ4fP81moQ&refer=us

[xiv] http://www.nsawatch.org/DOJ.Response.AUMF.final.pdf

[xv] http://abcnews.go.com/Politics/target-bin-laden-death-life-osama-bin-laden/story?id=13786598&singlePage=true

[xvi]http://insidejustice.com/law/index.php/intl/2010/03/26/asil_koh_drone_war_law

[xvii] http://www.cdi.org/news/law/gtmo-sct-decision.cfm

[xviii] http://www.npr.org/templates/story/story.php?storyId=5751355

[xix] http://washingtonexaminer.com/blogs/beltway-confidential/2011/06/boehner-warns-obama-libya-will-violate-war-powers

[xx]http://www.nytimes.com/2011/06/16/us/politics/16powers.html?pagewanted=all

[xxi]http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1474&context=wmlr&sei-redir=1#search=%22bill%20clinton%20war%20powers%20resolution%20kosovo%22

[xxii] http://blogs.abcnews.com/politicalpunch/2011/03/former-president-bill-clinton-praises-obama-on-libya.html

[xxiii]http://www.nytimes.com/2011/04/12/world/asia/12pakistan.html?pagewanted=all

[xxiv] http://www.nytimes.com/2011/06/09/world/middleeast/09intel.html

[xxv] http://www.washingtonpost.com/wp-dyn/content/article/2008/11/03/AR2008110302638.html

[xxvi] http://www.theatlanticwire.com/global/2011/07/american-boots-hit-ground-somalia-after-drone-attacks/39539/

[xxvii] http://articles.cnn.com/2009-06-04/world/drone.attacks_1_civilian-casualties-drone-attacks-human-rights-council?_s=PM:WORLD

[xxviii] http://www.nytimes.com/2011/04/28/us/28team.html

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