NEW YORK — As US lawmakers consider increased oversight over America’s lethal drone strike program, an eminent Israeli philosopher, law scholar and coauthor of the IDF’s code of ethics says only transparent procedures and independent oversight can grant legitimacy to the practice of targeted killing.
Israel has had many years of experience with the practice, and operates according to guidelines established by the High Court of Justice, while the US program is more recent and seems to have fewer checks and less oversight, according to Moshe Halbertal, a professor of Jewish philosophy at Hebrew University, Gruss Professor of Law at the New York University Law School and one of the drafters of the IDF’s code of ethics.
“There should be a body which is independent of either the CIA or the military that examines the [intelligence] materials and either approves or rejects [a strike],” Halbertal told The Times of Israel Sunday. Oversight of the program can’t come, as it does today, from “the same body that gathers the material and executes [the strike].”
The US drone program is believed to be responsible for the deaths of thousands of terror operatives and a much smaller number of noncombatants killed alongside the terror targets in countries such as Pakistan and Yemen. It has generated controversy over the past week in the wake of the Obama administration’s release of legal opinions justifying the practice – including when US citizens are the target. The documents were released ahead of the confirmation hearing of CIA director nominee John Brennan in the Senate Select Committee on Intelligence last week.
The New America Foundation has estimated that between some 2,600 and 4,200 people have been killed by US drone strikes in the past nine years in Pakistan and Yemen, the primary areas of drone activity, with the “non-military casualty rate” — a reference to collateral civilian deaths — dropping to nearly 10 percent in 2012, according to CNN.
Several US senators are now calling for increased oversight of the program.
Maine’s Senator Angus King, an independent who caucuses with Democrats, sent a letter to the Senate Select Committee on Intelligence on Friday, of which he is a member, expressing dismay at “the dearth of appropriate checks and balances in developing the legal framework for the potential use of lethal force against a United States citizen.”
King, like nearly all the senators calling for better oversight on the program, said he supported in principle the strikes against terror groups.
“To be honest, I believe that drones are a lot more civilized than what we used to do, you know, when Sherman shelled Atlanta or when the Allies firebombed Dresden in World War II; it was all collateral damage. It was virtually all civilians,” he told MSNBC’s Morning Joe program on Friday. “If you put it in a context of 1,000 years of war, I think [a drone strike is] actually a more humane weapon because it can be targeted to specific enemies and specific people.”
But, he added, “There is this little item of the Fifth Amendment that says no person shall be denied life, liberty or property without due process of law. Now, if an American joined the Wehrmacht in World War II, I don’t think anybody would say Patton had to get a warrant in order to shoot them. But on the other hand, the difference in this case is time. By and large, as I understand it, these strikes don’t happen in a matter of minutes. They happen over — they’re planned over a matter of days and weeks.”
In King’s letter to the committee he suggested establishing a mechanism similar to the Foreign Intelligence Surveillance Court established by the Foreign Intelligence Surveillance Act (FISA). “As you know, the FISA court consists of 11 federal judges, designated by the Chief Justice, who review electronic surveillance applications while maintaining appropriate security measures. Such a model may be useful as we consider the debate over targeted-strikes,” he wrote.
John McCain, reflecting the views of many Republicans, told Fox News on Sunday that he opposed any new oversight panel, but called for the drone program to be moved from the CIA, which has relatively little oversight from judicial or legislative bodies, to the military, where Congressional oversight is more robust and grounded in specific constitutional provisions.
“Since when is the intelligence agency supposed to be an air force of drones that goes around killing people? I believe that it’s a job for the Department of Defense,” McCain said.
Senator Dianne Feinstein (D-CA), who chairs the Senate’s Intelligence Committee, said she would review proposals for legislation that would institute increased review of the drone program.
According to Halbertal, two aspects of any oversight mechanism must be transparent: “What is the standard for establishing a legitimate target? And what is the procedural mechanism of deciding whether to kill someone?”
A legitimate target must be “a direct part of the causal chain of the threat. It’s not a person who writes propaganda on the Internet or gives general fatwas about the need to kill the enemy. It is not a punishment. It’s a preventive act – of a sort in which capture and trial is not a real option because of the cost in human lives, including civilians on the other side, [of a capture operation].”
A candidate for a targeted killing “has to engage in actual operational activity, planning, recruiting, etc. It has to be someone who is part of the operational chain [of a terror plot or act], and that has to be clear and transparent.”
Any strike must also be accompanied by “a sense of reliable and trustworthy intelligence.”
Better intelligence can help minimize collateral deaths and prevent a wrongful strike, for example by “one tribal leader who can try to get rid of another one” by giving US forces false intelligence of their involvement in terror groups.
“When it comes to military ethics, there is a strong link between competence and ethical behavior,” said Halbertal, a former IDF infantryman who served in a frontline combat brigade. The inverse is also true, he added. “There is a connection between brutality and incompetence.”
When military commanders are constrained by higher ethical standards, they tend to find more humane operational solutions than if they were not so constrained. War is no exception to the principle that necessity breeds creativity.
“I don’t know enough, I’m not close to it,” he said. “But it seems to me there was a process of improvement, that the early operations had larger numbers of collateral deaths that were not justified, as well as sometimes [attacks against] wrong targets. I say this without all the [information], but it looks like that has improved.”
As intelligence getting better, the drone program may be “a clear-cut example where ethical conduct and competence depend on one another. As competence increases and you get more reliable information, the capacity to act ethically increases,” Halbertal said.
Some officials have said in recent days that the program was in safe hands in the Obama White House. On Sunday, former CIA director and defense secretary Bob Gates defended Obama’s handling of the drone program, insisting on CNN that “the rules and the practices that the Obama administration has followed are quite stringent and are not being abused.” But he said he supported the establishment of stronger oversight over the program in future, since “who is to say about a future president?”
Halbertal was more skeptical, warning against putting too much trust in any one person, even if, like Obama, that person is a former teacher of constitutional law.
“The pressures on the commander-in-chief to protect Americans are so strong that they can overshadow a lot of constitutional training and sensibility,” he warned. “I wouldn’t count on [Obama’s training] as such. You have to see what the procedures are, how they are established. Some of the procedures are not clear.”
Halbertal noted that he was not necessarily opposed to the American drone program, but believed it needed stronger oversight to ensure it met ethical and legal standards.
“The history is very interesting. I recall that the US took a position against targeted killings to begin with, when Israel practiced it,” he noted. “Then the Americans adopted the practice, but in some ways without the clear constraints that Israelis put on it.”
For example, “this issue came before the Israeli Supreme Court, which issued very clear legal guidance for how to do it.
“Whether it’s through Congress or the courts, it’s important that a body outside the operational realm enforces norms on the policy,” he said. “The program’s very legitimacy depends on the existence of such norms.”