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Questions for Mary Ellen O’Connell About U.S. Drones and Targeted Killing

November 17, 2010

Mary Ellen O’Connell is the Robert and Marion Short Chair in Law and Research Professor of International Dispute

Mary Ellen O'Connell, The Law School, U. of Notre Dame

Resolution—Kroc Institute for Peace Studies, University of Notre Dame.  I asked her about U.S. Drones and Targeted Killings.

Joe Volk:

Earlier this year, you testified at the U.S. House of Representatives about the U.S. use of drones and targeted killing.  Is that right?

Mary Ellen O’Connell:

Yes, I testified on the U.S.’s use of drone aircraft to launch attacks in April of this year before the National Security and Foreign Affairs Subcommittee of the House Committee on Oversight and Government Reform.

JV:

Who invited you to testify, what’s the problem or question for Congress, and why were you invited?

MEO:

I was invited by the Subcommittee chair, Congressman John F. Tierney of Massachusetts.  At the time of the invitation, the media was beginning to report more widely on the controversial use of drones to launch attacks against terrorist suspects and other persons far from combat zones.  My area of expertise is international law, especially the law governing armed conflict.  I was invited to provide my views as to the international law respecting the use of drones.  Already in 2004, I had published my first critical analysis of U.S. drone use.

JV:

Why testify in 2010 on this?  Wasn’t it a problem in the Bush administration?  Hasn’t the Obama administration stopped these types of killings?

MEO:

The U.S. use of drones for targeted killing far from battlefields will quadruple in 2010 over the last year of the Bush administration, 2008.  So the problem is far worse now—not better.  Congress should have held hearings in 2002 when the CIA first used drones to kill individuals.  That was in Yemen where six persons in a passenger vehicle traveling on a rural road were all killed by a Hellfire missile attack launched from drones operated by CIA agents based in the African nation of Djibouti.  Congress should have investigated then given that Congress has the responsibility to oversee the CIA; it was Congress that had demanded in the 1980s the end of CIA participation in lethal operations.

But Congress took no action on drones until 2010, and, then, it was in the form of hearings before a House Subcommittee.  The Senate has held no public hearings, nor has Congress taken any action following the April hearing.

JV:

In a nutshell, what is “targeted killing” and what’s the difference whether drones, handheld guns, or piloted aircraft do it?

MEO:

You will find a few different descriptions of the term “targeted killing” by experts. In the context of drone attacks far from battlefields, we are generally talking about the intentional killing of named individuals on a “kill list.”  The practice is also referred to as “assassination.”  More recently, the media has reported that the CIA is moving beyond its list of named individuals to killing persons observed to be following a certain “pattern of life.”  In other words, people are being killed because of where they travel, who their associates are, their age, tribe, etc.

In certain respects the method used to kill is not as important as where such targeted killing takes place.  In May, the United States attacked in Yemen with cruise missiles launched from an offshore Navy vessel.  That attack was just as unlawful as the November 2002 drone attacks.  Nevertheless, drones appear to make the decision to kill easier for presidents and operators.

Those of us who are closely observing drone use are wondering whether President Obama thinks of drones as something other than a military weapon because they are unmanned.  He seems to be authorizing their use in ways we could hardly imagine if the delivery mechanism was a fighter jet or bomber.

As for the operators who sit in comfortable chairs before computer consoles using joy sticks to operate drones thousands of miles away, psychological studies have long indicated that the greater the distance, the easier the decision to kill.  “Distance” refers to every aspect of that term—space, culture, technology, etc.

In addition, we have the new phenomenon of video games, where people kill objects on a screen for entertainment.  Recall that Leon Panetta has called killing terrorist suspects and other persons with drones, “the only game in town.”

The psychology of drone use demands serious study.

JV:

President Bush (43), Secretary of Defense Rumsfeld, and many others said that the 9-11 attacks changed everything.  If everything changed due to the 9-11 attacks, then is international law  — that was developed before 9-11 and that emerged through a series of conventional wars — irrelevant and has to be replaced by something else?

MEO:

When I reflect on 9/11, which I do often given the nature of my work and the fact that I flew west out of Manhattan that very morning, my thoughts often come back to the tragic failure not to look to the law to guide our response.  Law should be our guide most especially in difficult times.  Yes, we can plan our affairs and do many other things with the help of law, but law really matters when we face crime, conflict, and disruption.  Law brings us back to stability through its guiding norms and processes.

International law would have guided the United States to take a law enforcement approach to responding to 9/11—just as we had done after the 1993 World Trade Center attack.  The law enforcement approach in 1993 resulted in the arrests, trials, and prison sentences for the main perpetrators.

After 9/11, President Bush was advised to declare a “war on terror” so he could use military means to respond.  He was also told to throw out the Geneva Conventions and other restraints on the waging of war by declaring them “quaint and obsolete.”  And, yet, look where we are more than nine years after 9/11.  We are still at war in Afghanistan.  Osama bin Laden remains at large.  Persons continue to be held without trial in the prison at Guantanamo Bay.  Al Qaeda is still actively planning attacks on us. The examples could go on of the failed policy.

Neither the 9/11 crimes nor President Bush changed international law on that day.  The rest of the world, which joins the United States on an equal footing in the making or changing of international law, uniformly supports the law enforcement approach to repressing terrorism.  The law has not changed; the U.S. has badly violated it to our great detriment.

JV:

Aren’t many U.S. officials and pundits saying that insisting on U.S. compliance with international law in these times is just not practical – and maybe, even, irresponsible?

MEO:

As I said in response to your previous question, in fact, it has been the failure to comply with the law that has cost us dearly.  Those who make negative comments about international law often do not know what international law is or America’s proud tradition with respect to it.  The Founding Fathers and many of our Supreme Court justices until recent decades were deeply knowledgeable about international law.  I am convinced that we would be in a much better place as a country if we regained that knowledge among our elected leaders and judges.

JV:

Perhaps I could play “Devils Advocate” here to pose challenges that my be on the mind of some:  Aren’t you afraid?  Don’t you see the violent extremists?  Aren’t you afraid that your obsession with “the law” will get people killed?

MEO:

It is striking to me to hear people make such claims respecting targeted killing—the same claims were made about torture.  I am sure you recall all of the “ticking time bomb” arguments to attempt to excuse torture and cruel forms of interrogation. “We have to torture a few to save many.”  In fact, torture is absolutely prohibited by law and morality.  It turns out that torture makes no sense as a method of interrogation either—there is no reality in the arguments that we should be permitted to torture a few to save many.

My husband, Peter Bauer, was a U.S. Army interrogator and worked very hard to get the message out that trained interrogators do not use coercive methods.  Such methods do not yield actionable intelligence.  Without actionable intelligence, we put our security at risk.

Unlike torture, killing is not absolutely prohibited in law or in most moral codes.  It is permitted to kill in limited circumstances—during armed conflict hostilities and beyond armed conflict to save a life immediately.  Under these principles some drone use, particularly in Afghanistan, is lawful.  Drone use beyond Afghanistan is not.  Even if it was, however, counter-terrorism experts tell us that the use of military force against terrorist groups almost never succeeds.  Law enforcement and political processes are the effective approach.  Just as with torture, targeted killing is not the way to greater security.  It is generally unlawful, immoral, and ineffective.

JV:

Where did you grow up?  Who were your heroes?

MEO:

I grew up around the Midwest—Milwaukee, Chicago, St. Louis, Louisville, and Indianapolis.  Starting in my junior year in college, I lived for many years in Europe and on the East Coast, but it is great to be back in the Midwest.  My husband is from Detroit, so we are home.

Jane Addams has always been a hero of mine—she was a devout Christian and a devout Chicagoan.  Many people know about her social work but not her peace advocacy.  She was very courageous and continued to speak out against the First World War even after the U.S. entered the war and it became unpopular to criticize it.  She remained true to her Christian beliefs to seek alternatives to war.

Another hero is Louis Henkin, who died at 92 in October.  He was my teacher and mentor at Columbia Law School.  He, too, was a person of faith—Judaism in his case.  He taught me profound respect for international law, especially the UN Charter principles against war and the international law of human rights.  He cared deeply about other people—perhaps born of having seen tremendous suffering as a soldier in World War II.

JV:

Many thanks for taking time to respond to my questions.  Do you have a book or an article that you want to recommend to our readers?

MEO:

I wrote a book to try to explain the wisdom of complying with international law after the torture scandal in this country broke.  It is called, “The Power and Purpose of International Law.”  It will be out in paperback in January.

On drones specifically, your readers might find helpful a brief, recent analysis I wrote for the American Society of International Law, called, “The International Law of Drones”, available at http://www.asil.org/insights101112.cfm

I am beginning to think and speak more about the moral questions being raised by drones and targeted killing.  I have already been raising the issue of killing at distances of thousands of miles with no risk to a human pilot.  Another and perhaps more troubling issue is the development of computer programs that will fully automate the decision to kill.  Drones will one day be programmable to launch lethal attacks based on the registering of certain factors rather than on the basis of a human being’s decision.

In my view, the time is now to put a legal limit on the use of such technology.  Most of the world has agreed to bans on anti-personnel landmines and cluster munitions because they function automatically.  The same ban should be applied to drones and robots when they can kill automatically.

— END —

One Comment
  1. m s marwat permalink
    March 27, 2011 9:45 am

    why thes atacs in pakistan. if americn kill one enosent men then his famelly goin the tallibn and al qaida groups. so this war is not against al qaida this war is only for pakistan .

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