Will Drone Strikes Become Obama's Guantanamo -- Or Romney's?

A year ago, I wrote an op-ed in the Washington Post entitled “Will Drone Strikes Become Obama’s Guantanamo?” in which I argued that unless the Obama Administration did a better job explaining the legal and policy basis for drones strikes, it risked “having its largely successful drone program become as internationally maligned as Guantanamo.” I noted that while U.S. allies and human rights groups had largely ignored U.S. drone strikes for three years, even as they killed more than twice as many people as were ever detained in Guantanamo, “that acquiescence may change, as human rights groups and the media focus more attention on the legality and collateral damage of drone attacks.” In fact, over the last twelve months, the U.S. media has devoted significantly more ink to drone issues and several human rights groups and UN Rapporteurs have filed legal actions and/or asserted that drone strikes violate U.S. and international law and may constitute war crimes and crimes against humanity.

• In December 2011, the New York Times sued the Justice Department for release of the classified OLC opinion (reportedly drafted by two Obama Administration officials who had returned to academia) purportedly justifying the killing of Anwar al-Awlaki.
• In March, the British human rights group Reprieve and Noor Khan, the son of a Pakistani killed in a drone strike, sued British Foreign Secretary William Hague challenging the U.K. Government’s alleged support for drone strikes.  A hearing was held on October 22/23 in London.  Reprieve asserts that British officials who provide targeting information may be violating U.K. criminal law and may have committed war crimes and crimes against humanity.
• In April, Reprieve, the Center for Constitutional Rights, and CodePink hosted an “International Drone Summit” in Washington to plan legal strategy to challenge U.S. drone attacks..
• In May, Pakistani families of drone targets sued the Pakistani government to force the government to raise drones strikes with the U.N. Security Council, the U.N. Human Rights Council, and the International Court of Justice; to initiate criminal proceedings against those involved in drone strikes; and to set up an investigating commission to determine the number of civilian deaths.
• In June, Christof Heyns, the UN Rapporteur for Extrajudicial Killings told a conference in Geneva that drone strikes may constitute war crimes.
• In July, CCR and the ACLU sued Secretary of Defense Panetta, CIA Director Petraeus, and Admiral McRaven for constitutional violations in the killing of Anwar al-Awlaki.
• In October, Ben Emmerson, the UN Rapporteur on Counterterrorism and Human Rights told an audience at Harvard Law School that drone strikes may constitute war crimes and that he would set up an investigative unit under the Human Rights Council to inquire into individual drone attacks.

Plus ca change: When they entered office in January 2009, I am sure the last thing that senior officials in this Administration expected was to be accused -- like their predecessors in the Bush Administration -- of extrajudicial killings, murder, and war crimes; to be sued by human rights groups for constitutional violations; to be picketed by the Pink Ladies; to have their classified OLC opinions FOIAed; and to be investigated by UN Rapporteurs and the UN Human Rights Council.   They have no doubt learned that governing is harder than campaigning, especially in an age of terrorism. In order to address growing domestic and international concerns, senior Administration officials have done a laudable job during the past year giving a series of detailed speeches explaining the legal basis and policy for drone strikes.  Unfortunately, these speeches do not seem to have had much impact on international opinion, perhaps because they have all been delivered before U.S. audiences and have not been covered outside the United States.  Much more work remains to be done, and the Administration is increasingly on the defensive. All of this places the Obama Administration in a similar position to the Bush Administration after its first term -- a growing international unease towards aggressive U.S. counter-terrorism policies.  Although still too soon to tell whether U.S. drone strikes will in fact become as “internationally maligned” as Guantanamo, the warning signs are there for the Obama Administration.  Albeit clearly effective in removing some militants from the international battlefield, the Administration’s drone strategy -- like Guantanamo -- is unlikely to be sustainable over the long term, as the Washington Post and my former colleague Kurt Volker have recently noted.  If re-elected, President Obama will need to address this challenge in his second term.  And if Governor Romney wins, he will inherit the Obama Administration's  drone strategy just as international opinion may be turning against it.