Recently in Foreign Policy, human rights lawyer Sarah Knuckey criticized the White House for concealing information on drone strikes. She describes a “depressingly predictable” pattern: anonymous officials say the strike targeted militants, witnesses say it killed civilians, watchdogs issue reports confirming the death of civilians, drone defenders challenge their reports, the government refuses to release information that, Knuckey believes, would settle the matter.
“We are at an impasse in the debate over America’s use of drones and so-called ‘targeted killings,’” Knuckey writes. “It is an impasse that the US government can, and should, resolve.”
Knuckey doesn’t realize she and other liberal reformers are helping to perpetuate the pattern. In the absence of a vigorous antiwar movement, human rights and civil liberties activists have emerged as the foremost opponents of “targeted killing.” Again and again they bemoan the White House’s secrecy and urge it to release information. But while transparency is desirable, requests for it won’t compel President Obama to come clean. And even if he did, progress on stopping the killing wouldn’t necessarily ensue.
The transparency fixation of liberal reformers reflects their belief that if only they could prove that a drone strike or the program itself violated international law, then they would make headway in this political battle. One is left wondering: Where is the court that will issue such a ruling? Where is the government that would abide it?
The effort to indict “targeted killing” on legal grounds could be dismissed as a well-intentioned waste of time, except that it’s worse than ineffectual. It drains the passion out of this profound issue — the US government killing people — and reduces it to a dry debate over esoteric questions that hinge on fine distinctions and often unknowable facts. Even worse, it creates a threshold that the White House can plausibly claim to meet and suggests that drones strikes are acceptable if they’re legal.
We know enough to state unequivocally that the “targeted killing” program is both wrong and wrongheaded. Morality and a demand for genuine security — not legality — should drive opposition.
Human rights and civil liberties groups seek two kinds of information. The first is information about specific drone strikes: the intelligence and decision-making that produced them and the fact-finding that followed them. The Obama administration will never provide this kind of information. Reformers may eventually be able to extract the other kind: the analysis that forms the legal foundation, such as it is, for the targeted killing program. But its airing wouldn’t be the transformative event reformers envision. There is, after all, a reasonable legal argument for the program; if there weren’t, human rights lawyers wouldn’t have to wait to see the administration’s legal case before indicting the program.
The potential political significance of even a shoddy legal case is difficult to discern. Consider the white paper purporting to explain when the US government has the legal authority to try to kill Americans, which was leaked to Newsweek’s Michael Isikoff last year. Liberal lawyers revealed its considerable flaws, creating a day or two of mild discomfort for President Obama, then the political world moved on.
Reformers believe that an action’s illegality would influence President Obama’s behavior. A quick review of his presidency says otherwise. He has ignored his obligation under the UN Convention Against Torture to prosecute Bush, Cheney, and the rest. US participation in the NATO operation in Libya violated the 1973 War Powers Act, and the regime change violated international law because the UN had given NATO authority only to protect civilians. The force-feeding of prisoners at Gitmo is also illegal under international law. President Obama’s greatest political coup, the killing of Osama Bin Laden, was likely a war crime, perhaps by design. And it wasn’t the UN charter that that stopped the President from bombing Syria.
So why do reformers think he’d stop launching drone strikes if they were shown to be illegal?
President Obama is following an unproud American tradition. International law has its uses, but no one has figured out how to make powerful states respect it. “In the cathedral of human rights,” Lou Henkin famously wrote, “the United States is more like a flying buttress than a pillar — choosing to stand outside the international structure supporting the international human rights system, but without being willing to subject its own conduct to the scrutiny of that system.”
Yet liberal reformers persist in their belief that they can, through the force of their arguments, bring the United States into the cathedral. All they need is more information. In her piece, Knuckey focuses on Human Rights Watch’s investigation into a drone strike on a wedding convoy in Yemen that killed twelve people and wounded at least fifteen. Both Knuckey’s piece and the HRW report are extraordinary in their deference to the US government and in their neutering of their own opposition. HRW, Knuckey notes, couldn’t definitely determine that militants were not among the targets, so it says only that the strike “raises serious questions” about its legality. “With this careful language,” Knuckey writes:
HRW’s latest report also brings to the fore the fundamental problem in attempting to assess US strikes. There is an asymmetry of information that is virtually insurmountable: key information remains in the sole possession of the US government . . . Alleged victims or NGOs can provide evidence documenting civilian deaths, but it may be possible that some other, publicly unknown information could indicate that a strike was legal or justifiable. Many cases are simply irresolvable without detailed information from Washington.
Transparency advocates have a curious faith in the reliability of state information. They assume that the US government — which regularly launches attacks based on bad intelligence (and which sent dozens of innocent people to Gitmo) — has more and better information about a drone strike than a watchdog group that spent hundreds of hours researching it (and that possessing that more and better information would bear on its actions).
Knuckey’s “asymmetry of information” is really an asymmetry of power. In her view, no independent reporting can conclude that the strike was illegal, and absent such a conclusion, we can’t condemn the strike. “And so,” she writes, “the American public and the international community are left concerned and ultimately guessing, repeatedly asking the same questions about the specific legal, policy, and factual basis for strikes.”
Knuckey thinks the government may be able to exonerate itself: “[S]ome other, publicly unknown information could indicate that a strike was legal or justifiable.” But why wouldn’t the government leak such information if it had it? Why, in any case, is the burden of proof on the victims and its advocates and not on the US government?
But to discuss proof in a single case is to wander onto narrow turf, the strip demarcated by international law. HRW describes the carnage caused by the attack — one victim’s genitals were blown off — yet in the end the organization can muster only concern and questions. HRW would probably argue that its mandate is to determine if the attack broke the law, but that’s a mandate of its own choosing — one that the US government must find agreeable.
HRW is a human rights organization. Did the attack not violate the human rights of the people it killed and maimed? The “war on terror,” legal or not, threatens the human rights of millions. It’s not the first time liberals have fixated on the law at the expense of justice, but seldom has their bloodless legalism been so all-consuming or self-defeating.
HRW’s argument presupposes that the slaughter of a dozen people was wrong only if it violated international law, and that, conversely, it was right if it didn’t. But all sorts of horrors are legal. “Signature strikes” — in which the US targets unidentified people who, viewed from the sky, seem like terrorists — are responsible for many, if not most, of the hundreds of civilian drone deaths, yet they’re not necessarily illegal. Likewise “double-tap” strikes in which the US tries to kill rescuers. Likewise attacks on weddings and funerals.
I want the US government to stop killing people in countries around the world. I want it to stop terrorizing populations. I want it to stop incinerating children. I want it to stop using war to give corporations money and Americans a false sense of security. I want it to stop creating anti-American violence in the name of fighting it.
Now, after a decade plus of disastrous occupations in Iraq and Afghanistan, is a relatively good time to be trying to mobilize Americans to oppose war. According to Pew, 52 percent of Americans believe the country “should mind its own business internationally” and only 38 percent disagree — a record imbalance. Hence the broad support among Americans and in Congress against bombing Syria and for peace talks with Iran. Americans, furthermore, are considerably less afraid of terrorism than they were only a few years ago. In the summer, the results of a Pew poll suggested they’re more worried about civil liberties than terrorism. Granted, that poll’s context was the furor over NSA spying, which Americans see as a threat to themselves. Drone strikes, by contrast, directly hurt only people overseas. Therein lies their domestic popularity.
The political battle against the US’s wanton killing abroad is an extremely difficult one. But it will be even more difficult if we let champions of international law shape it. They will continue to ask the government to help them figure out if the “targeted killing” program is wrong.
We know it is. We should act accordingly.