The Obama Doctrine: Drone Warfare And The End Of The War On Terror

On 18th September, 2001, the United States Congress passed the Authorisation of Military Force. Those who overwhelmingly voted for it must have been aware that the world of the 18th was not the same as that of the 10th. What they could not have imagined, however, was that the legislation they passed in the panic following the attacks on the World Trade Centre would be used more than a decade later in unanticipated theatres of conflict, using technology which was then only in its infancy. Thus recent discussion over the use of unmanned aerial vehicles, commonly known as drones, by by the Bush and more extensively, and controversially, the Obama administration, hinges on the Bill's Section 2a: 'THAT the president is authorized to use all necessary and appropriate force against those nations, organizations, and persons he determines has planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organisations or persons,'

With the executive granted such powers on an effectively indefinite basis in the aftermath of a shocking terror attack, the issue of the legality of drones is a confused one. The Obama administration has been keen to try and codify and regularise practices which, under the Bush administration, had been conducted in what many felt to be an extra-legal manner. State Department legal advisor Harold Koh stated in a lecture at Yale Law School: 'twentieth century laws, twenty first century challenges, there are two possible responses . . . it's a black hole, law does not apply, we can do whatever we want . . . that is an approach I would attribute to the last [Bush] administration.' The Obama administration`s attempts to translate international law to a post-9/11 diplomatic climate have hinged, as ever, upon the principles of proportionality and consent of the nations involved: are drone strikes a proportionate tool to fight terror, and what do the concerns of 'host' nations such as Pakistan bear on the legality of their use?

According to data collected by the Bureau of Investigative Journalism, documenting drone strikes in Pakistan, between 2,537 and 3,646 people have been killed since 2009, of which it is estimated between 416 and 951 were civilians. In the face of these (widely accepted) statistics, we must bear two things in mind. The first is drones' increasing accuracy: the number of civilian casualties has declined from 26% of all reported fatalities in 2009 to around 1.3% of those killed in 2013. Drone technology is advancing rapidly and thus it is possible that with further advances, collateral damage may become a thing of the past. The second is the possible alternatives to drones. Airstrikes, the obvious alternative to drones, would entail the use of air-to-surface missiles, which typically carry a warhead of 57 kg; this is opposed to the 8kg warhead delivered by a Predator drone; clearly one has an infinitely larger capacity for damage than the other, whether fired at a legitimate or civilian target. Even if one countenances conventional special operations, such as that which killed Osama Bin Laden, the chances of civilian casualties are still high, not to mention the possibility of failure. The memory of Black Hawk Down has lingered in the minds of American military planners as a nightmare scenario, where not only were 18 US service personnel killed, but upwards of 1,000 Somalis.

The data on casualties caused by drones is, of course, highly circumspect; not only is it closely guarded by the CIA, but the nature of the FATA region in Pakistan where most strikes are conducted makes intelligence gathering difficult. With what little we can gather, however, it seems that drone strikes are at least preferable to any other alternative in the region. The other main source of controversy in both the West and Pakistan is the violation of Pakistani sovereignty; Pakistani citizens are killed by a foreign power in their own country on an almost regular basis. Undoubtedly this has caused anger in Pakistan-the newly elected Prime Minister Sharif has been strongly critical of strikes. Pakistani politics is, however, a murky business even after the end of military rule. It should be noted that the Predator drone, most commonly used over Pakistan, has a top speed of just 135 mph; navy jets frequently have to accompany drones over the Straits of Hormuz because of their vulnerability and in 2011 Iran successfully captured an American drone by jamming its navigation software. Far from being the inscrutable killing machines of lore, drones are fragile and easily detectable machines which the Pakistani air defence system could remove from Pakistani air space with ease. The fact that they do not can only been seen as an implicit acceptance of the role they play in policing the FATA region, an area beyond the reach of the Pakistani state.

The practice of drone warfare is thus one of uncertain legal footing; backed by US statute passed in the immediate aftermath of 9/11 with no foreknowledge of the decade-long conflict that was to come, shrouded in secrecy and with the uncertain consent of the nation where most strikes occur, only time will tell whether such actions are judged to be legal. The Obama administration's acknowledgment that international law is outdated, albeit still relevant, puts it in a legal bind as it seeks to operate within a body of law written with inter-state warfare, rather than counter-insurgency or asymmetric conflict in mind. In their use, however, we can discern a programme that may well be described as an inchoate 'Obama doctrine.' In his remarks at the National Defence University in 2013, President Obama stated that: 'we must define out effort not as a boundless "war on terror", but rather a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America.' Drones serve as a case in point of this new approach: deployed in Yemen, Somalia and Pakistan, they are the epitome of 'persisted, targeted efforts'- while American leeriness of direct military intervention is kept quiet by the low costs (each drone costs roughly £4.03 million) and non-existent American casualties. Under President Obama we see nothing less than a fundamental re-tooling of American counterinsurgency strategy. The fact that the CIA operates the drone programme is an accident of history-it happened to be the organisation which first possessed armed drones, yet the past five years have seen a blurring of the lines between Defence and Intelligence. One need only look at the careers of the CIA's Directors; General Petraeus and Leon Panetta have both led the organisation, one in uniform while the other was confirmed as Secretary of Defence in 2011. The militarisation of the CIA is undoubtedly a process no one envisaged when establishing the Agency in 1947, but given that it seems most of the US's intelligence gathering is in the hands of the newly-infamous NSA, it is hardly surprising.

The Obama Doctrine, if it exists, can thus be seen as an attempt to find new uses for old tools, both military and legal. However, it must be noted that the Authorisation Act of 2001 is still the underlying legal justification for the continuing conflict; thirteen years after 9/11, it is time that US planners recognised that the War on Terror has fundamentally changed; Obama seems to have realised this, but while he is changing the manner in which it is fought, he has not addressed the legal basis of continued military action.