Elif Dibek

The Legacy of 9/11 and Robot Wars: Legal Limbo in Phantom Warfare

Richard Falk’s article contributes to the literature on the rapidly growing concern over the counterterrorist domination of U.S. foreign policy and human rights (or lack thereof). It is necessary to call further attention to the legal, democratic and future implications of the high-tech execution of al-Qaeda operatives.

While Falk rightfully asserts that debates on Al-Awlaki’s citizenship are crude, the legal aspect of the issue is precisely what the spotlight should be on. Usually, it’s the subjects of autocratic states that stand by helplessly under the shadow of their belligerent government. But the people of the United States have a constitutional right to stand up against their government, if they wish to do so. Moralistic arguments on Iraqi civilian deaths propounded by Falk may not necessarily touch many Americans, especially as the painful memory of 9/11 still lingers. Some people may unfortunately be more inclined to buy the rhetoric of the “War Against Terrorism”. The implications of the Al-Awlaki case for the everyday lives and rights of U.S. citizens may resonate more with certain groups, as opposed to the fate of innocent but faceless victims of drone attacks in lands far away.

The U.S. government has cheated its own legal system with the extrajudicial execution of an American citizen. The killing of Al-Awlaki- guilty by association- was not legally justified. No attempts of arrest were made, although- as Gawker’s John Cooke puts it perfectly- citizens “are generally accorded such constitutional courtesies as not being summarily executed without a trial”. While the execution of non-citizens can be excused by Clinton and Bush’s make-shift laws of Antiterrorism and Effective Death Penalty and the National Emergencies Act, the government can be backed into a legal corner it cannot escape when it comes to the killing of an American citizen. The bypassing of the U.S. criminal justice system is an insult to the civic rights of all American citizens. A system with such double-standards is not reassuring and could one day attack the rights of any citizen. What’s more, the government has not inconvenienced itself with accounting for the (il)legitimacy of its actions. Such secrecy and unaccountability directly interferes with the right of every single American citizen by disregarding the Freedom of Information Act. By obscuring public opinion, the government is eliminating potential opposition. More alarmingly, drones undermine democracy. Although the U.S. constitution specifically assigns the role of declaring war to the Congress, drones used against terrorists only need ratification from the President. In the face of unchecked executive power, U.S. citizens do not participate in the governments decision of declaring war anymore. Make no mistake, we are not talking about a downtrodden population of an obscure dictatorship. U.S. citizens would react fervently if they were aware of the extent to which their civil liberties are jeopardized. ACLU and the New York Times have already filed lawsuits against the Department of Justice, seeking information on the targeted killings. As insensitive as “debating the lawfulness of Al-Awlaki’s execution” is, it could create a butterfly effect that benefits the innocent bystanders in northwest Pakistan by raising effective public opposition against the unlawful U.S. government.

The importance of U.S. credibility is another point that Falk has not emphasised. Al-Qaeda and Taliban have caused (and are still causing) so much sufferring all over the world. What kind of a hegemon would the U.S. be if it did nothing to oppress the oppressors? The appeal of  managing global security single-handedly is palpable and perhaps inevitable in unipolar realpolitik. But the extent to which foreign policy is dominated by the anti-terrorist paranoia, much like the Cold War era anti-communist mentality, is anachronic and self-defeating. The moral mission of the “war against terrorism” (Chandler 2006: 65) reached such sadistic political brutality at a high reputation cost. The “ethical” foreign policy-making that had first given the U.S. military a blank cheque to wreak havoc unbounded by accountability (Chandler 2006: 87), in turn took away the precious asset of global U.S. credibility.

While all of Falk’s criticisms against the U.S. are well-founded, the incompetence of the non-enforcing nature of the international legal system should raise some eyebrows too. As al-Qaeda is not officially the army of a sovereign state, the U.S. easily found loopholes in international law and took the liberty of designating even suspects of terrorism as “unlawful enemy combatants” (thus, lawful targets). On what basis can we object to the U.S. claims that terrorists (stateless criminals) cannot be party to the Geneva or the Hague Conventions (which would have afforded them specific due process rights (articles 69-77)? The UN stands by idly as the U.S. refuses to disclose the drone killing programme’s legal justification. When it turned out that “targeted” killings were not so well-targeted after all, all the UN did was to be highly critical. The drone attacks under the Obama administration killed 750 civilians in Pakistan, of which 175 were children (Pakistan Index). Kids collecting firewood in Afghanistan were mistakenly killed in an airstrike. In the meanwhile, the UN was busy failing to produce legal constraints on the usage of drones.

It’s necessary to expand on Falk’s moralistic arguments. Through the drone technology, the U.S. military ensures that no bodybags turn up on the doorsteps of citizens. With no tangible evidence of war (thus no potential public opposition of a magnitude that ended the Vietnam War), covert wars have never been so easy. While unmanned aerial vehicles are a triumph for those who are armed with it, the targets are reduced to pixels on a computer screen. To support this on the basis that it saves the lives of many American soldiers is purely racist. It implies that “the lives of Afghan and Pakistani civilians simply aren’t worth as much as the lives of U.S./NATO soldiers”. U.S. drones that explode in Pakistan are commanded from an airport base in Nevada, with controllers that resemble an Xbox controller. When a military mission resembles a videogame– “far removed from the human consequences of their actions”- impunity for war crimes will soon be the norm. Collateral damage to civilian lives will become a part of the virtual reality of phantom warfare.

Falk hits the nail on the head by suggesting that the current situation “engenders violent resistance, and widespread fear, hatred, and extremism”. Unfortunately we are standing on the cusp of a much darker future, in which autocratic great powers like China, or even terrorists will be availing of the unfair advantage that drone technology provides. Unless legal and public action is taken immediately, Falk’s concluding questions may have to be answered with a resounding “yes”.

4 thoughts on “Elif Dibek”

  1. I think Elif takes an interesting approach in her response to the articles, her focus on Falk’s (2011) article and his lack of attention or concern on the American killing of Al-Awlaki, a prominent Al-Qaeda operative and more significantly an American citizen.
    Elif’s concern is not for the killing of Al-Awlaki, but for the legal implications of such a killing for other American citizens. More importantly, she recognises how the growing mass of anti-terrorism policy “legitimately” violates the rights of its citizens, in the case of Al-Awlaki, it was guilty by association that lead to his extrajudicial killing.
    Although accurate, I do find her distinction, that American citizens feel less for those innocent civilians that have been killed in Iraq or Afghanistan because of the 9/11 attacks to be incredibly disturbing. Agreeing with Falk’s, I think this has a lot to do with how the American media has framed the ‘war on terror’, reporting primarily on the deaths of U.S army members as opposed to the killing of innocent civilians (Falk, 2011). The lack of compassion for innocent civilians in the context of the ‘war on terror’ is unsettling, especially because of America’s affiliation with being the “leader” of the free world.
    However, because of growing criticisms from across the world, I do think the American attitude has changed slightly, if you look at the response to the Abu Ghraib scandal and also the criticisms of Guantanamo bay. Unfortunately for the rest of the world, but fortunately for the United States, it is the hegemon when it comes to distributive world politics and power and one of the pluses of being the hegemon is the fact that there is no one above you. In my view, their status as the hegemon basically alters their commitment to the Hague convention, where they have chosen in this instance of the ‘war on terror’ to ignore the safety of civilians, by using drone attacks and other methods like the detention of almost anyone they suspect.
    Further to this, when I consider Falk’s closing question, I do believe that there is an opportunity for change, and with a strong leader, like possibly Barrack Obama. I can’t ignore Kenneth Roth’s (2010) argument, about Obama and empty promises, but I do see him as a step in the right direction, unlike George Bush, he is acknowledging the atrocities of the past, and maybe he will finally step up and follow true on his promises.

  2. Elif’s response paper accurately points out the tendencies that have pervaded consecutive US administrations of fixating on an enemy, as in the Cold war, and more recently in the ‘War on Terror’. The current perception of having ‘a blank cheque to wreak havoc unbounded by accountability’ is considerably dangerous for US credibility and its reputation (Chandler 2006: 87). Rightly, a crucial point of democracy is having checks and balances and the War on Terror has challenged this fundamental basis of democracy.
    However, I would agree with Falk’s perplexity over of the debate centring around the killing of Al-Awlaki. The focus on the issue of citizenship, as though one’s nationality has an influence on their right to life, seems imbalanced. While the constitutional/legal questions of the killing are relevant, Falk is concerned with the broader implications of this debate, the apparent belief that the US has the ‘unreviewable right to unleash lethal violence against persons anywhere in the world’. The concept of the target killing policy and apparent/possible impunity that goes alongside that, increasingly being employed by the US government is unsettling. It raises serious questions about democracy, human rights and the limits of US power.
    Falk focuses on the trend of insensitivity, minimal transparency and tunnel vision in US foreign policy that has existed as far back as the Spanish American War through to Vietnam and has experienced a rebirth since 9/11. When facing an enemy, the US government has, on occasion, demonstrated a detachment from the suffering that occurs among civilians and focused solely on its mission of conquering the enemy, with little regard for the costs incurred to other human beings. Why is this debate generating a greater response than a debate over the massive civilian deaths caused by these strikes or over the 1 million that have died in Iraq? Or a debate over the limits of US power on foreign territories? Or a debate over the use of what resembles a death penalty without trial (regardless of nationality)?
    This article is proposing a more normative challenge to the issue of drone strikes rather than focusing on the legal issue. It draws attention to the recent killing of Al-Awlaki, as an example of a continuation of past US administrations inclination to adopt a narrow minded, nationalistic focus on achieving their missions largely insensitive to the human costs. There appears to be a gap around this debate, of an ethical nature, resembling empathy/compassion. It is understandable that American citizens will be slower to relate to the death of an Iraqi citizen, but after a decade of justifying actions in the name of the War on Terror, it is time to draw the line on this unaccountable, indiscriminate conduct.
    The reported massive civilian deaths, the numerous protests in Pakistan, the legal objections/cases taken against the strikes, tensions between the US-Pakistani governments in addition to the tension it is causing within Pakistan as a consequence of the drone strikes highlights a cost that may trump that of the immediate success of killing suspected terrorists . Furthermore, this type of ‘necrophilic nationalism’ that is manifested in the form of drone strikes is absolutely very likely to engender ‘violent resistance, and widespread fear, hatred and extremism’. Short term over long term policy goals seem to be a favoured choice of recent US administrations.
    Elif appropriately points out that double standards that pervade US foreign and domestic policy, and the crucial issue of increasing transparency and accountability within the US government. For the most part the CIA, is generally exempt from the Freedom of Information Act. However failing to provide more information on these strikes creates uncertainty over their legality. It is interesting to read in Elif’s links of the possibly future risks of employing an advancing the use of this advanced technology in a territories worldwide.
    It is important to note that in carrying out this particular drone strike aimed at Awlaki, it require the US working closely with the Yemini government of Saleh, an autocratic leader who is known for human rights abuses, and whom a percentage of the population had spent the previous 8 months protesting on the streets for his removal.
    These acts appear to conflict with the ideals laid out by Obama as he undertook his presidency – of repairing the US’s tarnished reputation. While undoubtedly some recognisable progress has been made, in this particular area (drones + Pakistan), Obama’s policy will likely fall short of achieving its aims. Whether Falk’s description of the US a having the ‘lawless logic of a permanent state of emergency’ is accurate, it is crucial to have reminders of the real costs of human lives that have been incurred and to challenge the limits/lack of constraints to US power.

    Vira and Cordesman, Pakistan: Violence Vs Strategy, A National Net Assessment, May 2011Centre for Strategic and International Studies
    The Express Tribune – http://tribune.com.pk/story/292015/phc-accepts-application-against-drone-strikes/

  3. Elif’s response to this week’s focal article identifies the wider implications of modern warfare (overt and covert). As Elif points out the most contentious aspect of al-Awlaki’s assassination is the fundamental disrespect for legal principles. Irrespective of al-Awlaki’s nationality, his death was essentially a killing without due process. The ease with which the US engages in “’habeas stripping’” must be challeneged for the government ultimately abuses its powers and no longer serves to defend its own citizens (Human Rights Usa, 2012).

    Disrespect for national and international principles of accountability further delegitimise covert military operations. For one, as Elif points out, Americans have the right, under the Freedom of Information Act to be informed about the legal basis (if any) of drone attacks. In terms of international accountability, the issue could indeed grow out of control if it weren’t for the (albeit weakening) alliance between Pakistan and the US. The killing of al-Awlaki and other drone attacks could be construed as an assault on national sovereignty (Boone, 2011).

    Another important point Elif identifies is that modern covert and overt warfare ultimately undermine democratic principles. The executive has the power to authorise all missions that do not jeopardise the lives of US nationals. The nature of unmanned systems allow the executive to frame drone interventions as lawful acts of self defense thereby removing the democratic seal necessary to engage in warfare (The Washington Post, 2010). Unmanned systems do not, however, enhance the legitimacy of extrajudicial killings. If anything they render modern warfare much more perfidious than ‘conventional’ techniques.

    A further issue pertains to the unnessary civilian casualties that often go hand in hand with drone attacks. If the goal of drone attacks is to take out specific individuals then the means towards that end are ultimately perverted. At this point it should be noted that the Obama administration has authorised more drone attacks than the much criticised Bush administration, despite the former’s emphasis on the imperative of protecting civilians (Forsythe, 2011). The hypocrisy cannot go unnoticed.

    Ultimately, however, what it all boils down to is the inferiority of the protection of human rights to national security concerns. As Donnelly (2007) points out, “human security never displaced national security on the American foreign policy agenda”.




  4. This is an interesting response to the Falk article. However, I would be less inclined to highlight the ‘legal aspect’ here, and more inclined to focus on the moral implications of non-American civilian deaths as Falk has. I know the idea of drone attacks is quite unsettling for everyone, but I certainly see it as the lesser of two evils when compared to invasion. Unfortunately, the US public (perhaps uneducated on the issue, perhaps not) demand some kind of response to the threat of terrorism, even 10 years after 9/11. 750 civilian deaths in the first 3 years of the Obama administration is no laughing matter – though it is important to consider that the first 3 years of the war in Iraq (or Afghanistan for that matter) had substantially more casualties. (And I presume the Obama Administration is acutely aware of the difference here).

    I also take a little bit of issue with a number of these facts too. First, the Freedom of Information Act has nine fairly large exemptions (which have been in place for 40+ years) for withholding specific information (involving executive orders/matters of national security/trade secrets, etc.). Second, US credibility should also not be blurred between the Bush and Obama Administrations. There is certainly a difference when considering the two. Third, the legal ramifications of declaring war are significantly more complicated than just referring back to the US Constitution. Precedent has altered in many ways, the way in which war is carried out and begun (numerous Supreme Court cases, the War Powers Resolution, etc.) And finally, I am fairly certain that the use of drone attacks is taken much more seriously than a description of just pixels on a screen and the use of xbox-like controllers. (And use of drones has been shown to give many operators PTSD).

    Let us be clear and accurate about the Al-Awlaki killing. The memo used to legally justify the assassination was written narrowly, as to only apply to Al-Awlaki himself. Two years of attempted capture yielded no results, and his case was certainly one of treason. Recent passage of indefinite detention bill (which was tacked onto a military spending bill) was altered by the Obama Administration via signing statement. As an American citizen, I would not be as concerned with these events in a legal/civil issues sense as say, unwarranted wiretapping/spying. Covert War might be “easier” but its certainly a lot less covert – drone attacks are always reported by news media, and it is that check that will keep their use in line. There is certainly troubling moral implications – and it is the highlighting of that line of reasoning that I believe will be more vital in change the views of American voters, and therefore (hopefully) the US government.

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