Beyond the ‘Kill List’
Towards a less politicized, more militarized drone program


David French

We already have a political process for designating Foreign Terrorist Organizations, and statutorily creating a more rigorous process for designating Declared Hostile Forces would mitigate concerns of unending war against undefined enemies. At the same time, however, the legislation should not limit the Commander-in-Chief’s inherent ability to respond rapidly to truly “imminent” military threats (regardless of source) as they arise.

Second, militarize the targeting process. It is imperative that civilian decision-makers be largely removed from the targeting decision-making process. While there are certainly decisions that only the president can make (such as the decision to begin an aerial campaign over the sovereign territory of another nation), as a general rule, the drone campaign should be conducted by military authorities, with civilian accountability for its overall success and failure, not with civilian control of the individual strikes themselves. In other words, it should be conducted more like a conventional military campaign and less like a series of presidential execution orders.

In fact, even CIA strikes should be conducted under ultimate military oversight, and the bias should be in favor of using military assets except when diplomatic or military necessity requires CIA drones. By replacing the mistrusted (and less competent) politicians with seemingly the only trusted public institution in the United States (the military), we will not only improve the campaign’s effectiveness; we will remove it further from partisan politics and partisan rancor.

Third, denationalize the targeting. Simply put, citizenship should be irrelevant when targeting members of Declared Hostile Forces, and it’s always irrelevant when targeting in pure self-defense. In Ex Parte Quirin, the Supreme Court was quite clear:

Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and, with its aid, guidance and direction, enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war.

The administration’s now-infamous white paper goes too far in providing special targeting protections for American citizens. Creating a partially immune class of American super-terrorists is militarily foolish and wholly unnecessary under the Constitution. The Fifth Amendment, after all, on its face makes no distinctions between citizens and non-citizens, and the legislative declaration of war is all the “process” due an enemy belligerent.

At the same time, we should amend the Immigration and Nationality Act to strip citizenship from those who enter or serve any armed force (state or non-state) engaged in armed conflict (as designated by Act of Congress) against our nation. Currently, the law strips citizenship from those who serve in the “armed forces” of another state, yet for most of the last decade our military effort has been concentrated against non-state terrorist organizations.

While there should be transparency in the classification and designation of Declared Hostile Forces — those forces that can be targeted under the laws of war — calls for greater transparency in the individual targeting process are highly problematic. Individual targeting decisions tend to be based on sources of information and understandings of enemy behavior that we simply cannot publicly disclose without imperiling those sources or alerting our enemies of the necessity of changing their behavior.

No targeting process is perfect, but our military has long experience in identifying and engaging terrorists, with an extraordinarily low ratio of civilian casualties — a ratio unprecedented in warfare. Further civilian involvement is more likely to impair the targeting process than improve it.

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I believed there was sufficient evidence for a strike, but no one died that night in Diyala Province, Iraq — or, more precisely, no one died in that courtyard. The command decided against an attack. There were explosions and death elsewhere, as bombs planted by terrorists claimed civilians and soldiers alike. Should those men in the courtyard have lived or died? Had they died, would others have lived?

Those are the questions of the drone campaign. They are not questions for a politician, but questions, ultimately, for a warrior — a warrior who knows the terrain and the population and who knows what it means to take life, to risk his own, and to save others.

We’re at war. And in war we trust our men and women in uniform — unless and until they prove unworthy of that trust. So far, they have proven more worthy of that trust than our politicians.

— David French is senior counsel and director of digital advocacy at the American Center for Law and Justice.  He is a veteran of the Iraq War.  His opinions are his own.