Liberals like me caused Obama's illegal drone war

It's a sad truth that legal critics bear some moral responsibility for creating incentives for the Obama administration to kill rather than capture

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The advocacy groups Amnesty International and Human Rights Watch are accusing the administration of U.S. President Barack Obama of possible war crimes for drone strike campaigns in Pakistan and Yemen. These charges won't have much weight within the United States — after all, even Hollywood now portrays the way we tortured detainees, and no one has been held to account.

But the reports presage what will probably become history's verdict on drone strikes taking place off the battlefield in weak states: bad for human rights, bad for the rule of law — and bad for U.S. interests in the fight against terrorism.

There will be plenty of blame to go around, yet I can't escape the gnawing feeling that people like me — legal critics of the George W. Bush administration's detention policy — bear some moral responsibility for creating incentives for the Obama administration to kill rather than capture. True, we didn't realize that condemning interrogation practices and quasi- lawless detention at Guantanamo Bay, Cuba, would lead a Democratic president to break new ground in unfettered presidential authority. But that's just the point: We should have seen it coming. And we didn't.

To be clear, I'm not saying that lawyer-critics caused the turn to drone strikes. We're not that important as a class.

Most of the blame for the adoption of drones as systematic policy will land, rightly, on policymakers. Largely civilian, but partly military, these officials considered drones a convenient and clean way of killing the enemy without endangering U.S. troops. Enamored of technology and of war from a distance, they failed to consider the consequences.

The deaths of innocent civilians mistakenly targeted are horrible, of course. But innocent civilians can also be mistakenly killed by manned aircraft, not to mention ground troops. The strategic error was failing to realize that drone strikes away from the battlefield would systematically alienate the populations in whose midst they occurred. Far from strengthening the governments of Pakistan and Yemen by killing terrorists, the strikes undercut the sovereignty of those already weak governments.

Even when strikes successfully targeted al-Qaida members or other terrorist groups, they reminded the local public that their governments weren't actually sovereign in their own territory. A 2011 poll in Pakistan's Waziristan region, financed by the British government, found 63 percent of respondents saying the strikes were never justified.

This trend went directly contrary to the basic doctrine of counterinsurgency developed in the later Bush years, according to which the overarching goal is to strengthen the local government and win support from the population to defeat the insurgents.

Although the tactical appeal of drone strikes is significant, it doesn't fully explain the Obama administration's preference for them. Part of the policy choice resulted from the practical impossibility for the president of doing anything with al-Qaida-linked terrorists if they should be captured. Having pledged to close the prison at Guantanamo during the 2008 presidential campaign, Obama could hardly add detainees there. But why had Obama come out against Guantanamo in the first place?

The answer had everything to do with legally inflected criticisms of detention as practiced by the Bush administration. You remember the tune: There was no clear legal authority to hold detainees. Harsh interrogation tactics violated domestic and international law. Guantanamo itself was a legal black hole, chosen because it wasn't inside the U.S., but also (according to the U.S.) wasn't under Cuban sovereignty because of a disputed 100-year-old treaty.

When people including myself made these criticisms to reasonable people in the Bush administration — yes, there were reasonable people there, such as Matthew Waxman, who worked in both the State and Defense departments, and Jack Goldsmith, of the Office of Legal Counsel (and now my colleague at Harvard Law School) — we got a pretty consistent answer. Look, they said, detention is problematic, but it is better than just killing people!

These Bush administration moderates pointed out that in choosing military targets, mistakes were sometimes made — collateral damage was even accepted under international law. Detention, too, might involve errors, but it was necessary as an alternative to shooting first and asking questions later.

I found these arguments unconvincing at the time. The rule of law, I believed, was being fundamentally distorted by intentional acts of detention and interrogation that were not authorized and that deviated from legal norms. The detainees were being subjected to human rights violations, which was bad enough; but executive power was also being drastically expanded in the attempt to provide some doubtful justification for what was going on.

I stand by those criticisms. But in retrospect, perhaps I and others should have been more attuned to the likely consequences of making them. Democrats focused on Guantanamo and the anonymous black detention sites as symbols of all that was wrong with the Bush administration's detention policy. That in turn obligated Obama to do the same, leaving him with almost no room to maneuver on detention.

Then came the drones — and with them a series of legal justifications that arguably went much further than the Bush administration had gone in expanding executive power. One Justice Department memorandum, which has still outrageously not been released to the public, apparently justified the killing of U.S. citizens by drone strikes in part through the argument that due process had been satisfied by internal deliberations within the executive branch. If the reports are accurate, this amounts to the first time I know of in our tradition since the Magna Carta in 1215 that due process has been deemed satisfied without giving the victim of a government deprivation of life and liberty the opportunity to be heard by a neutral decision-maker.

The costs to the rule of law under this system match those of the Bush administration. And though the Amnesty International and Human Rights Watch reports aren't likely to go anywhere, it seems clear that the targeting and killing of civilians based on loose "signatures" without detailed intelligence almost certainly violates the law of war.

Noah Feldman is a law professor at Harvard University and the author of "Cool War: The Future of Global Competition,". He is also a columnist for Bloomberg View.

Copyright Washington Post/Bloomberg 2013.

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