Voice

10 Ways to Fix the Drone War

Obama's targeted-killing policy is a mess. Here's what he can do about it.

How could I have missed this! On March 23, the Drone Report website called me one of the "top ten leading voices in drone media." So, okay: I didn't know there was a "drone media," and I'm not entirely sure being a member of the "drone media" is a compliment. But assuming it is, I am determined to live up to the honor.

To that end, I'm soliciting your help, dear readers. Regular readers of my column know that I do indeed drone on about you-know-whats. I have written about what's not wrong with drones, about the ways in which drones lower the perceived costs of using lethal cross-border force, about the legal indeterminacy surrounding targeting decisions, about the administration's legal justifications for killing Americans overseas, about the reasons Congress should not expand the Authorization for Use of Military Force, and about the costs of moving large swathes of U.S. foreign policy into the covert world. I have even written about my own growing drone armada.

Although I've raised a lot of questions and leveled a lot of criticisms, I'm feeling a little low on solutions. So help me out: Below, I've listed 10 things Congress and/or the president could do to ensure that U.S. targeted killings comport with rule of law norms. I take no credit (or blame!) for these ideas, none of which is original to me. (Some sources of these suggestions include Human Rights First, the Council on Foreign Relations, Lawfare, Human Rights Watch, and numerous conversations I've had with colleagues and friends.) But I am sure the list of ideas below is neither perfect nor complete.

Readers, please comment on these ideas (and others not listed), either in the comment section or by sending me an email. Are these good ideas? Stupid ones? Feasible or unfeasible? Do they need to be tweaked? How? What should be cut, and what's missing?

If you help me out, you will become an honorary member of the Drone Media. Make your mom proud!

10 Ideas for Ensuring Oversight, Transparency, Accountability, and the Rule of Law in U.S. Targeted Killing Policy

1. Congress should encourage administration transparency and public debate by continuing to hold hearings on drone strikes, targeted killing policy, and its relationship to and impact on broader U.S. counterterrorism, national security, and foreign policy goals. Congress should also consider hearings on the longer-term challenge of adapting the law of war and law of self-defense to 21st century threats.

2. Congress should also encourage administration transparency by imposing reporting requirements. Congress could require that the executive branch provide thorough reports on any uses of force not expressly authorized by Congress, and that such reports contain both classified sections and unclassified sections in which the administration provides a legal and policy analysis of any use of force in self-defense or other uses of force outside traditional battlefields.

3. Congress should consider creating a judicial mechanism, perhaps similar to the existing Foreign Intelligence Surveillance Court, to authorize and review the legality of targeted killings outside of traditional battlefields. While the administration argues that such targeting decisions present a non-justiciable political question because of the president's commander-in-chief authority, the use of military force outside of traditional battlefields and against geographically dispersed non-state actors straddles the lines between war and law enforcement. While the president must clearly be granted substantial discretion in the context of armed conflicts, the applicability of the law of armed conflict to a particular situation requires that the law be interpreted and applied to a particular factual situation, and this is squarely the type of inquiry the judiciary is bested suited to making.

Of note, the Israeli Supreme Court addressed the issue of targeted killing in a 2006 decision and determined that while the conflict between Israel and Palestinian terrorist organizations was an international armed conflict, individual terrorists were civilians who become targetable by virtue (and only by virtue) of their direct participation in hostilities. The court also noted that international law requires independent investigations when civilians are targeted because of their suspected participation in hostilities. The Israeli Supreme Court roundly rejected the view that targeted killing presents a non-justiciable issue, and insisted that the legality of each targeted killing decision must be individually considered in light of domestic and international legal requirements. While specific judicial review mechanisms in the United States might reasonably be expected to vary from Israel's, the Israeli experience strongly suggests that there is no inherent reason judicial review of targeted killings could not occur.

4. Congress should consider repealing the 2001 Authorization for Use of Military Force. The Obama administration's domestic legal justification for most drone strikes relies on the AUMF, which it interprets to authorize the use of force not only against those individuals and organizations with some real connection to the 9/11 attacks, but also against all "associates" of al Qaeda. This infinitely flexible interpretation of the AUMF has lowered the threshold for using force. Repealing the AUMF would not deprive the president of the ability to use force if necessary to prevent or respond to a serious armed attack: The president would retain his existing discretionary power, as chief executive and commander in chief, to protect the nation in emergencies. Repealing the 2011 AUMF would, however, likely reduce the frequency with which the president resorts to targeted killings.

5. The Constitution gives Congress the power to "define and punish offenses against the law of nations." Without in any way tying the president's hands, Congress can pass a resolution clarifying that the international law of self-defense requires a rigorous imminence, necessity, and proportionality analysis, and that the use of cross-border military force should be reserved for situations in which there is concrete evidence of grave threats that cannot be addressed through other means.

6. Congress and/or the executive branch should create a non-partisan blue-ribbon commission made up of senior experts on international law, national security, human rights, foreign policy, and counterterrorism. Commission members should have or receive the necessary clearances to review intelligence reports and conduct a thorough policy review of past and current targeted killing policy, evaluating the risk of setting international precedents, the impact of U.S. targeted killing policy on allies, and the impact on broader U.S. counterterrorism goals. In the absence of a judicial review mechanism, the commission might also be tasked with reviewing particular strikes to determine whether any errors or abuses have taken place. The commission should produce a public, unclassified report, as well as a classified report made available to executive branch and congressional officials. The report should contain detailed recommendations, including, if applicable, recommendations for changes in law and policy and recommendations for further action of any sort, including, potentially, compensation for civilians harmed by U.S. drone strikes. The unclassified report should contain as few redactions as possible.

7. The president should publicly acknowledge all targeted killings outside traditional battlefields within a reasonable time period, identifying those targeted, laying out the legal factual basis for the decision to target, and identifying, to the best of available knowledge, death, property damage, and injury resulting from the strike(s).

8. The president should release unclassified versions of all legal memoranda relating to targeted killing policy. In particular, U.S. citizens have a right to understand the government's views on the legality of targeting U.S. citizens.

9. The president should also provide the public with information about the process through which targeting decisions outside traditional battlefields are made, the chain of command for such decisions, and internal procedures designed to prevent civilian casualties.

10. The administration should convene, through appropriate formal and Track II diplomatic channels, an international dialogue on norms governing the use of drone technologies and targeted killings. The goal should be to develop consensus on the legal principles applicable to targeted killing outside a state's territory, including those relating to sovereignty, proportionality, and distinction, and on appropriate procedural safeguards to prevent and redress error and abuse.

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National Security

Why Sticks and Stones Will Beat Our Drones

The persistent dangers of low-tech warfare.

"I know not with what weapons World War III will be fought," Albert Einstein warned President Truman, "but World War IV will be fought with sticks and stones."

It doesn't do to quarrel with Einstein, and he's no doubt right about World War IV. But implied in Einstein's famous adage is an assumption that right up until the moment we knock ourselves back into the Stone Age, the technologies of warfare will evolve in one direction only: They will become ever more advanced, complex, sophisticated, and lethal.

Today, much rhetoric about future wars makes this assumption. We assume that military technological innovation is a one-way ratchet. High tech measures taken by one side will be followed by high-tech countermeasures taken by the other, which will be met with still more advanced counter-countermeasures, and so on, ad infinitum -- or at least until some Einsteinian nuclear catastrophe ends the cycle, crashing us back to the age of sticks and stones.

But Einstein's cautionary words overlook one detail: For all our technological sophistication, warfare has never truly moved past sticks and stones -- and even today, their bone-breaking power remains surprisingly potent.

Technological Teleology

It's easy to forget the continued role of sticks and stones. When we think of the history of warfare, we think in terms of perpetually advancing technologies. Certainly, history offers plentiful examples of escalating technological "measure, countermeasure, counter-countermeasure" cycles: As swords and spears grew more lethal, armor became heavier. As armor became heavier, horses were needed to increase speed and maneuverability, and the invention of the stirrup further increased the lethal effectiveness of mounted cavalry. The development of the long-bow enabled distance warfare and the decimation of mounted troops armed with swords and spears, but then guns and artillery displaced longbows, automatic weapons displaced single-shot weapons, and so on through the atom bomb -- for which Einstein's work so ambivalently paved the way.

Or consider electronic warfare. During World War II, for instance, Allied forces developed active sonar to locate submerged German U-Boats, while ship-based high-frequency radio direction finders were produced to intercept radio transmissions sent by surfaced U-Boats. Germany then equipped U-Boats with radar detectors, which led the Allies to deploy newly developed centimetric radar, which German radar detectors could not detect. In the context of aerial warfare, the evolution of radar systems to detect incoming aircraft led to the use of chaff and the development of radar jammers, which in turn led to new counter-countermeasures intended to making jamming more difficult, such as frequency hopping and radiation homing.

In each of these cases, technological innovation in warfare sparked new technological innovations by adversaries, and today, as in World War II, we're often inclined to assume the inevitability of such technological escalation.

This is the assumption that underlies much current thinking about cyber-threats, as well as the Pentagon's Air-Sea Battle paradigm. In cyber, the development of Internet-based communications systems is countered by the development of new methods of detecting and disrupting Internet communication; cyberattacks lead to new cyber-defenses, which lead to new and more sophisticated cyberattacks. The Air-Sea Battle paradigm is similarly premised on the assumption that technology marches forward: U.S. air and naval dominance incentivizes near-peer competitors -- a.k.a. frenemies, a.k.a. China -- to develop anti-access and area denial technologies. And so, the logic goes, we need to invest in anti-anti-access technologies, and technologies to deny area denial.

This, of course, just happens to take money, and lots of it. It also just happens to involve significant investment in the Air Force and Navy, the two services pushed to the sidelines, relatively speaking, during a decade of slow, plodding land war in Iraq and Afghanistan. Fearing displacement themselves, the Army and Marines are pushing their own high-tech visions of their future. As Lloyd Freeman argued in these pages last week, the Marine Corps needs to transform itself, for "in future conflicts, [ground troops] will only play a secondary role. Land forces will no longer win wars. Computers, missiles, planes, and drones will." In the future, argues Freeman, the old "every Marine a rifleman" slogan will need to be replaced with a new concept: "every Marine a JTAC" (joint terminal air controller). "Marines will manage and become experts on dozens of different communications platforms," asserts Freeman. "Live video feeds will stream continuously."

Maybe so, maybe not.

Here's what we seem eager to forget: Military technological evolution can go in both directions. In biological evolution, there's no teleology: The simple doesn't inevitably become more complex, and while life forms change and evolve in response both to random mutation and environmental conditions, they don't inevitably "advance." In modern warfare, the same is true. High-tech measures aren't inevitably countered by more high-tech measures. Sometimes, the opposite is true: The most successful countermeasures are low-tech -- and historically, this has been demonstrated just as often as has the opposite.

We know this, of course. We just don't like it.

Sticks and Stones in Afghanistan

Consider, most recently, the U.S. experience in Afghanistan. The U.S. brought overwhelming technological superiority to the battlefield -- and with it, we also brought new blind spots. The Taliban, a low-budget but by no means low-innovation adversary, quickly developed low-tech responses to our high-tech blind spots.

Unable to prevail in direct combat with U.S. troops, for instance, the Taliban turned to improvised explosive devices made of readily available materials and detonated by cell phone. We countered by developing costly vehicle-based cell-phone jammers, designed to prevent the long-distance detonation of IEDs as our vehicles drove by them. These often had the unintended consequence of disrupting our own communications, and they also led the Taliban to shift to using IEDs with mechanical triggers. We responded by equipping our forces with ground-penetrating radar designed to detect the metallic signature of IED components. The Taliban countered by moving even further in the direction of sticks and stones, constructing pressure-plated IEDs out of foam rubber, plastic, and wood.

We've seen similar Taliban low-tech countermeasures in other areas. We have invested heavily in both encryption technologies and surveillance technologies designed to thwart adversaries' use of encryption, for instance, but since we took it for granted that potential adversaries would have made similar high-tech communications commitments, we allowed our ability to locate simple FM radios to degrade.

Most of the time, Taliban forces don't bother with encryption; they communicate openly over simple handheld walkie-talkies, using multiple mobile FM repeaters to retransmit these weak signals over longer distances. U.S. forces initially lacked the equipment needed to intercept these transmissions, and reportedly had to reply on purchasing cheap "commercially available radio scanners in the Kabul souk" to listen in. The equipment needed to intercept Taliban radio communications became standard, but it has proven far more difficult for us to locate the enemy themselves; we can locate the repeater towers, but not a Taliban soldier on his handheld radio.

Al Qaeda, too, is a learning organization. Threatened by U.S. drones, al Qaeda is reportedly turning to low-tech countermeasures, encouraging militants to use mud and grass mats to disguise vehicles from overhead surveillance. This tactic won't be successful for long, but it's a good bet that AQ will find new low-tech means to thwart U.S. drones in the coming years.

You get the picture. Sometimes, high-tech measures leads to higher-tech countermeasures -- but at other times, high-tech measures lead to lower-tech countermeasures. More ominously, a misplaced confidence in our technological superiority dangerously increases our vulnerability to low-tech countermeasures.

The Moral of the Story

Some will be tempted to dismiss this as an artifact of the ill-fated post-9/11 U.S. ground wars. Though 65,000 U.S. troops remain in Afghanistan, we've already begun to lose interest in that war and its lessons. We should know better.

In the 1970s, we convinced ourselves that there would be no more Vietnams, and turned our backs on whatever wisdom we had gained during that brutal, protracted conflict (wisdom about the nature of asymmetric and guerilla warfare, the strength of nationalism and the perils of occupation). Then, in Iraq and Afghanistan, we painfully relearned many of Vietnam's grim lessons -- just in time for the wars to wind down and the public to lose interest.

Now, many leaders in both the military and civilian world seem determined to repeat our post-Vietnam head-in-the-sand routine. We won't have any more Iraqs or Afghanistans, we tell ourselves -- we won't invade or occupy states or territories with vast ground forces, and we won't be engaged in messy COIN or stability operations, so we don't need to remember our mistakes -- we can just move on! The lessons of Afghanistan will have no applicability to future wars, for these future wars, if any, will be high-tech conflicts with sophisticated state or state-backed adversaries.

Maybe so, maybe not.

Here's the thing: Even if the cyberwarriors and the Air-Sea Battle proponents are right -- even if any future wars will be with sophisticated, high tech states -- it's a big mistake to imagine that sticks and stones will play no role in future conflicts.

After all, it took the Taliban remarkably little time to realize that high-tech U.S. capabilities could frequently be thwarted by lower-tech countermeasures. Why should we imagine that near-peer states such as China haven't taken notice?

Aref Karimi/AFP/Getty Images