Increase in the use of Drones Raise Legal Concerns

Officials in Pakistan say a US drone attack Thursday killed a top member of the militant Haqqani network.

Mary Ellen O’Connell, a law professor at the University of Notre Dame talks with host Marco Werman about the legal concerns raised by drone strikes.

Read the Transcript
The text below is a phonetic transcript of a radio story broadcast by PRI’s THE WORLD. It has been created on deadline by a contractor for PRI. The transcript is included here to facilitate internet searches for audio content. Please report any transcribing errors to theworld@pri.org. This transcript may not be in its final form, and it may be updated. Please be aware that the authoritative record of material distributed by PRI’s THE WORLD is the program audio.

Marco Werman: I’m Marco Werman and this is The World, a coproduction of the BBC World Service, PRI and WGBH Boston. Officials in Pakistan say a US drone attack today killed a top member of the militant Haqqani Network. The attack involving missiles fired by a remote controlled aircraft reportedly took place in northwestern Pakistan. That’s where the Haqqani Network is said to be based. The US blames the group for several recent attacks in Afghanistan. American drone strikes in Pakistan and elsewhere have increased significantly under the Obama administration. That’s raised legal concerns for some here in the US. Mary Ellen O’Connell is a law professor at the University of Notre Dame. She says drone attacks are legal or illegal, depending on where they occur.

Mary Ellen O’Connell: Today, the United States is involved in hostilities in two places in the world, Afghanistan and Libya. In both of those places it is perfectly lawful for the United States to use drones to deliver missiles and bombs to areas where we are fighting combatants. Other places in the world, Yemen, Somalia and these attacks in Pakistan today are not areas where the United State is involved armed conflict hostilities and it is unlawful to use weapons of war away from hot battle zones.

Werman: But hasn’t the whole notion of war zone shifted since 9/11, I mean isn’t the battlefield everywhere now?

O’Connell: Marco, let’s just unpack that. It’s just rhetoric from two administrations because they don’t want to do the hard work. They want to be seen to be doing something dramatic that looks to the American people effective. In fact it’s not.

Werman: And what is, what is the hard work you’re talking about that they’re trying to avoid?

O’Connell: The hard work is police work. It is building up contacts. It is working with local authorities. It is arresting people and putting them on trial. I shouldn’t even say it’s hard, it’s less dramatic than going to war, then dropping bombs. But in the end what we’ve seen from all the counterterrorism experts, the real experts, people like the RAND Corporation, tell us that law enforcement and involvement in the political process is a way to suppress terrorist organization.

Werman: Now, President Obama is reportedly on the verge of releasing the internal legal memo that was the basis for the decision to kill Anwar al-Awlaki, a Muslim cleric in Yemen and a US citizen. He was killed in a drone strike in Yemen last month. Has that secret memo, the one that provided the legal justification for killing Awlaki, has that memo essentially become US policy now?

O’Connell: It has. I think they’re going to draw the parallel that with the so-called torture memos of the Bush administration, which were equally based on flawed analysis. In both cases we have the CIA demanding to do things that our law and international law prohibit, and we have lawyers in both administrations coming up with arguments that maybe sound plausible to non-experts, but I don’t think they’re gonna sound plausible to the American people.

Werman: The reports that I’ve seen seem to show that the justification of the White House is that if it was not feasible to capture Awlaki alive then he should be killed because he was taking part in a war between the US and al-Qaeda and he posed a significant threat to Americans. What concerns you most about that reasoning? I mean I’ve heard that definition, doesn’t it make Yemen a war zone then?

O’Connell: Well, there’s no basis in international law for that definition. There are a lot of very dangerous people who are hard to get ahold of. We sought Whitey Bulger for a very long time, it was very hard to get him. It’s hard to get members of the Mexican drug cartels. It’s hard to get a lot of very serious criminals. We just have to do a better job.

Werman: Finally, Mary Ellen O’Connell, what are the implications of killing the enemy from long distance and how will that play into the use of drones in the future?

O’Connell: Very soon many, many countries in the world are gonna have the same drone capacity that the United States does. I think it’s time to lead morally and legally and to show that this kind of technology should be restricted to real armed conflict, actual battlefield situations where of course, it’s appropriate to try to save our uniformed men and women’s lives on the battlefield, but that we should be restricting from peacetime situations, non-armed conflict situations the use of military force.

Werman: Law professor Mary Ellen O’Connell with the University of Notre Dame, thank you very much.

O’Connell: You’re welcome.

Copyright ©2009 PRI’s THE WORLD. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to PRI’s THE WORLD. This transcript may not be reproduced, in whole or in part, without prior written permission. For further information, please email The World’s Permissions Coordinator at theworld@pri.org.