The main problem is not drones, but that the Bush Administration grossly mismanaged its response to 9/11. Instead of acting firmly and surgically against Al Qaeda, it squandered global good will by invading Iraq, committing torture, opening Guantanamo, flouting domestic and international law, and undermining civilian courts. By taking the wrong path, the last Administration sacrificed legitimacy, and took its eye off the ball, leaving the next administration to pick up the pieces.

President Obama’s Administration got off to a promising start with his January 2009 executive orders, his 2009 Nobel Prize speech, and his 2010 National Archives Speech. And in early 2010, I gave a speech to the American Society of International Law outlining the basic legal standards the US government applied to such actions.

But since then, to be candid, this Administration has not done enough to be transparent about legal standards and the decision-making process that it has been applying. It had not been sufficiently transparent to the media, to Congress, and to our allies. Because the Administration has been so opaque, a left-right coalition running from Code Pink to Rand Paul has now spoken out against the drone program, fostering a growing perception that the program is not lawful and necessary, but illegal, unnecessary and out of control.

The Administration must take responsibility for this failure, because its persistent and counterproductive lack of transparency has led to the release of necessary pieces of its public legal defense too little and too late.

As a result, the public has increasingly lost track of the real issue, which is not drone technology per se, but the need for transparent, agreed-upon domestic and international legal process and standards. It makes as little sense to attack drone technology as it does to attack the technology of such ”new” weapons, in their time, as spears, catapults, or guided missiles. Cutting-edge technologies are often deployed for military purposes; whether or not that is lawful depends on whether they are deployed consistently with the laws of war, jus ad bellum and jus in bello.

Because drone technology is highly precise, if properly controlled, it could be more lawful and more consistent with human rights and humanitarian law than the alternatives. And finally, given that other technologies, particularly conflict with cybertools, are fast achieving more prominence, obsessing about drones may soon be overtaken by events, as drone technology gives way to even more technologically sophisticated tools of war such as cyberwar or more advanced robotics.

CP Photo

So what is to be done?…With respect to drones, the Obama Administration should similarly be more transparent and more consultative. It should also be more willing to discuss international legal standards for use of drones, so that our actions do not inadvertently empower other nations and actors who would use drones inconsistent with the law.

First, as President Obama has indicated he wants to do, the Administration should make public and transparent its legal standards and institutional processes for targeting and drone strikes. Second, it should make public its full legal explanation for why and when it is consistent with due process of law to target American citizens and residents. Third, it should clarify its method of counting civilian casualties, and why that method is consistent with international humanitarian law standards.

Fourth, where factual disputes exist about the threat level against which past drone strikes were directed, the Administration should release the factual record. By so doing, it could explain what gave it cause to believe that particular threats were imminent, what called for the immediate exercise of self-defense, and what demonstrated either the express consent of the territorial sovereign or the inability and unwillingness of those sovereigns to suppress a legitimate threat.

After transparency, the key is consultation. The Administration should send witnesses to explain its legal standards to Congress, consult with Congress about its methodologies, standards and processes, and patiently explain why the use of force was warranted in particular, well-publicized cases. The Administration should use those same facts and standards to consult with our allies on what the global standards on drone use should be going forward, and to reassure them that we are not applying a standard that we would consider unlawful if espoused to justify the use of drones by say, China, North Korea, or Iran.

Most important, the Administration should remember that the real issue facing us is not drones, but how to end the Forever War. As suggested above, the war against Al Qaeda, the Taliban and Associated Forces is not one in which we can simply declare victory and go home. If the Obama Administration cannot persuade its citizens, Congress and its closest allies that its drone program is legal, necessary and under control, it will be hard for President Obama to see this war to its much-needed conclusion or to take the other steps necessary to secure the peace.

Photo:  Everett Historical / Shutterstock

Harold Hongju Koh
Harold Hongju Koh is a former legal adviser to the US Department of State (2009-12).

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