Brennan’s legal realpolitik!

In the first public defence of Obama Administration’s use of armed Remotely Piloted Vehicles (RPVs), President Obama’s Assistant for Homeland Security and Counterterrorism, John Brennan, gave a 6545-word talk at the Woodrow Wilson Centre for Scholars in Washington DC on April 30, calling their use legal and ethical.

Brennan’s defence came on the heels of a two-day conference in the same city convened by human rights groups and legal charities opposing the use of drones.

Brennan exposited at length, as the wordage should indicate. He spoke of legalities, ethics and the wisdom of drone use in an environment fraught with operational imperatives and perceived threats to the US. It is an attempt to construct a legal-ethical argument to fit the US’ conduct of war and to prove that the US is being very careful because “we despise war” and because “we are establishing precedents that other nations may follow”. [NB: a brilliant essay on how law is made to serve the purposes of force was panned by Harvard law professor David Kennedy some years ago in his book, Of War and Law.]

Two ideas may be put on the table right away. One is about sequencing. There should be no confusion that law follows force in the interactive dynamic between the two. Second is about the conduct of war itself: legal regimes since the Geneva Conventions may not allow states the “liberty of bloody hand” as Henry V had before the gates of Harfleur, but neither would they let legal niceties prevent their freedom of action when they perceive security to be scarce.

In 2005, the Brookings Institution undertook a project, Force and Legitimacy in the Evolving International System, seeking to “develop cooperative strategies ... that will meet the twin tests of legitimacy and effectiveness and provide a meaningful alternative to unilateralism or institutional paralysis”. As part of one of the rounds, I was fascinated by the painstaking effort by American strategists to overcome the existing legal binds. Of particular interest was the attempt by Edward Luck, a Columbia professor, to unlock Article (2) 4, fourth of the seven guiding principles of the UN, through a paper titled: “Article 2(4) on the Non-Use of Force: What Were We Thinking”.

Over the years we have witnessed many more such attempts, devising multilateral frameworks that, while attempting to bind other states in cooperative strategies, should retain for the US its freedom of unilateral action. This is of course a topic on which much can be, and has been, written. For our purposes, however, this is enough for a quick look at Brennan’s defence.

Here are the salient features:

US use of drones is legal because “The Authorization for Use of Military Force — the AUMF —passed by Congress after the September 11 attacks authorises the president ‘to use all necessary and appropriate force’ against those nations, organisations and individuals responsible for 9/11.” [NB: the authorisation does not list ‘States’.]

It is also legal because “As a matter of international law, the United States is in an armed conflict with al Qaeda, the Taliban, and associated forces ... and we may also use force consistent with our inherent right of national self-defence. There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.”

Wrong on both counts. Domestic law cannot override accepted principles of international law or customary state practice, especially the principle of non-intervention. Doing so is an exercise of power, not law. Two, nothing in international law or the UNSC legal regime on terrorism allows State X to operate on the territory of State Y unless the latter expressly permits such action. Therefore, the issue of “unable or unwilling” does not arise as grounds for unilateral determination and action. Nor can such be determined by another state through its own estimation because any action flowing from such unilateralism cannot be subjected to a limiting principle, i.e., there will be no limit to what a powerful state could do to weaker states.

Brennan also defended the use of drones on the principles of necessity, distinction, proportionality and humanity and gave reasons for why such use is wise. The problem with his framework is that the operation of these “principles” — and these factors are essentially operational, not foundational — becomes relevant only after it has been determined that it is indeed legal for a state to use drones (or force) in the manner that the US has done so far and which scores of experts deem to be illegal because it is unilateral and violates the basic principle of non-intervention. In other words, the necessity, distinction, proportionality and humanity of weapon system X as opposed to Y becomes a relevant defence or debate only after the legality of the conflict in which it is to be used and the manner of such use has been accepted.

As it stands, the problems of who decides what is necessary, through what process and in what manner remain unresolved. The very “humane” targeting method that Brennan has outlined can be deemed legal only if it can be determined to be such by a process that separates the judge, jury and the executioner through external scrutiny. That is automatically precluded by the very requirement of secrecy.

Also, while Brennan spoke specifically of targeted strikes, he didn’t say a word about ‘signature’ strikes, a rather interesting omission.

Finally, Brennan knows well, or should know, the moral hazard that attends preemption and increases manifold as prevention is invoked. No one knows what attacks are being conjured up and preempted and how much of these threats lie in the realm of fantastic scenarios.

Having said this, the final arbiter of this conflict and what a state can do to prevent another state from violating its sovereignty is a function of power, not law. History, ultimately, is the logic of might and the grey area where law and politics interact normally resolves itself in favour of the latter.

Published in The Express Tribune, May 2^nd, 2012.