WASHINGTON -- Without warning in the dead of night of Jan. 3, on a dirt road in a remote region of Pakistan, two missiles slammed into a double-cab pickup truck and blew it to smithereens along with the six men inside. It's safe to say the victims never heard the U.S. drone circling far overhead.
One of the dead was a known bad guy, Mullah Nazir, a Taliban warlord who boasted of his ties with al Qaeda and recently banned polio vaccinations for local children. The other men killed were said to be lower-ranking Taliban commanders.
A clean kill, demonstrating the increasing ability of the United States to identify, track, target and eliminate dangerous threats to American security? Perhaps. A majority of Americans think so -- by 59 to 18, Americans approve of using drones to kill high-level terrorist suspects overseas, according to a new HuffPost/YouGov poll. But a growing number of military and civilian experts in war and law say that President Barack Obama's drone war is counterproductive and unsustainable, perhaps violating the Constitution as well.
That puts the expanding American fleet of 375 armed drones -- which gives the White House a seductively simple, inexpensive, safe (for Americans) and easily hidden way to wage war -- squarely on top of Obama's agenda when he takes up his second term Jan. 21. Complicating a potential reform of the drone program: Its chief architect and apologist, White House terrorism adviser John Brennan, is Obama's pick to run the CIA -- which operates in secret many of the drone strikes.
"Our criteria for using [drones] is very tight and very strict," Obama insisted in August. In an interview with CNN, Obama explained that any proposed strike has to comply with U.S. and international law, and the target must be a real threat who cannot be captured.
"And we have got to make sure that in whatever operations we conduct we are very careful about avoiding civilian casualties. And, in fact," the president said, "there are a whole bunch of situations where we will not engage in operations if we think there's gonna be civilian casualties involved."
On the morning of March 17, 2011, more than three dozen village elders and local government leaders gathered in an open-air bus depot in the town of Datta Khel, in North Waziristan, Pakistan. Under discussion: how to avoid being drawn into the insurgency raging there and across the border in Afghanistan. At about 10:45 a.m., a drone hovering overhead fired a supersonic missile into the gathering. One man remembers hearing a slight hissing noise before the blast threw him, unconscious, several yards away. An immediate second strike killed many of the wounded.
What happened in Datta Khel has been exhaustively documented, at some risk, in on-site investigations by The New York Times, the Associated Press, The Guardian, and the independent Bureau of Investigative Reporting, among other organizations. The results were verified and compiled in a report by law-school researchers from Stanford and New York universities.
U.S. officials insisted that all those killed were insurgents. But interviews with survivors and families of the dead, along with other eyewitnesses and medical authorities indicated that most if not all of the roughly 40 people killed were civilians. The Associated Press investigation concluded that four of the dead may have been affiliated with the Taliban.
That June, three months after the Datta Khel attack, Brennan boasted that in the drone attacks, "there hasn't been a single collateral death because of the exceptional proficiency, precision of the capabilities we've been able to develop."
But that one attack -- among 350 or more drone strikes Obama has authorized -- captures what critics contend is a lose-lose proposition for the United States as it confronts militant Islamist insurgencies and terrorist organizations across much of the world.
Almost all of the "targeted assassinations" of alleged terrorist leaders engaged in plots or operations against the United States are conducted by drone strikes. Others have been accomplished with AC-130 aerial gunships or by commandos.
Among the known, if not acknowledged, targets of drone strikes so far have been people in Afghanistan, Pakistan, Yemen and Somalia. Administration officials are said to be eyeing drone strikes against al Qaeda-linked insurgents in the mid-Sahara nation of Mali and in north Africa. Predator and Reaper drones can carry either Hellfire missiles with blast-fragmentation warheads, or the satellite-guided GBU-39 bomb, which can glide 60 miles and bears a carbon fiber composite warhead to reduce lethal shrapnel. The Air Force has bought 12,379 of these bombs from Boeing.
The accumulating problems caused by these killings concern even those who acknowledge them as a legitimate weapon of war. As U.S. troops are reduced in Afghanistan over the next two years, for instance, the United States may find drone strikes increasingly useful against insurgent sanctuaries across the border in Pakistan.
"The fact is, the U.S. might need to maintain and sustain this capability," Micah Zenko, a fellow at the Council on Foreign Relations told The Huffington Post. "But there needs to be significant restraints and much more transparency" both in the legal justification for the killings and in how the strikes are conducted.
Secrecy is a key concern. The administration has never explained why drone strikes -- and not, say, infantry attacks in Afghanistan -- must be secret. Yet with such a highly classified program, there is no effective independent confirmation of the administration's assertions that the strikes comply with domestic and international law. Strike packages are assembled by the CIA and the military's Joint Special Operations Command, whose role has grown from its initial involvement managing drone strikes in Afghanistan and Iraq.
The material, including identification of the targets, justification for the strikes, estimates of potential civilian casualties and assessments of the impact on the local community, are vetted by lawyers and officials at the Pentagon and White House -- in secret.
Obama has ducked questions about whether or not he personally reviews each strike package.
The legal basis for drone strikes is said to reside in a June 2010 memo from the White House Office of Legal Counsel used to justify killing Anwar al-Awlaki, a U.S. citizen and extremist firebrand, in Yemen in September 2011. That memo remains secret after New York District Court Judge Colleen McMahon ruled in frustration on Jan. 2 that the law shields those White House decisions. That effectively allows "the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for its conclusions a secret," she wrote.
Nor is there much congressional oversight of the drone strikes. After being blocked for years, the Senate Intelligence Committee finally won permission in 2009 to send a delegation to the CIA once a month to peek at strike videos and scan some of the intelligence justifying the strikes, a committee official confirmed. But congressional committees charged with oversight of the armed services and foreign relations have never managed to hold even closed-door classified briefings on the drone strikes.
"Assertions by Obama administration officials as well as by scholars, that these operations comply with international standards are undermined by the total absence of any forms of credible transparency or verifiable accountability," concludes Philip Alston, NYU professor of law and the former United Nations adviser on extrajudicial, summary or arbitrary executions.
A second deep concern is the civilian death toll from drone strikes. In the enormous violence unleashed in war, civilians always suffer. After more than a decade of war, military targeters have gotten pretty good at designing attacks to minimize or eliminate civilian casualties. But not perfect. Drone operators can watch a proposed target for days or weeks to establish patterns of life, augmented by spies and cultural experts. Targeting software like Bugsplat, which models the effective kill zone and collateral injury and damage of a proposed strike, can help. "You use the full range of intelligence," said Army Brig Gen. Rich Gross, who as legal counsel to the Joint Chiefs of Staff reviews strike execution orders.
Counting the number of civilians killed in these strikes is notoriously difficult, given that strikes usually take place in remote areas that are often hostile to Westerners. The most careful accounting is generally considered to be that by the Bureau of Investigative Journalism, which said between 558 and 1,119 civilians have been killed in strikes in Pakistan, Yemen and Somalia.
In any attack, Gross told The Huffington Post, "there's a real science involved with what type of weapon system will be dropped and the numbers of people you would expect in that culture at that time of day." The art, he said, is judging whether the military benefit of a strike outweighs the projected loss of civilian life, as required by international law.
The recent use of "signature strikes" or "crowd killings," which are said to target a group of unnamed and unidentified suspects, appears to violate international law even more egregiously.
There is also the issue of blowback. It doesn't take a detailed military analysis to recognize that having drones constantly overhead promising instant death isn't popular in non-battlefield strike zones like Pakistan, Yemen and Somalia. Evidence gathered by reporters and investigators in North Waziristan and other sites of drone strikes is that the anger, fear and resentment the strikes leave behind among civilians seems to outweigh any potential military benefit. Such devastating strikes, which kill with no warning, "are hated on a visceral level," retired general and Afghan war commander Stanley McChrystal said recently. "The resentment created by American use of unmanned strikes," he added, "is much greater than the average American appreciates."
"The argument that several folks have raised is that when you kill a terrorist, even if you kill no women and children, no combatants, you're still gonna enrage the population, depending on how it's done," said Gross. "That's a consideration that policymakers always have to struggle with."
Two other problems arise with the drone program. One is copycats. Inevitably, weapons technology spreads, and already other countries are racing to expand their drone fleets and arm them with weapons. It's also likely that some will not be as fussy as the U.S. government said it is in following international law. Iran has already used surveillance drones. Imagine the havoc if it threatened to launch clouds of armed drones toward the Persian Gulf oilfields.
For that reason, experts have urged the administration to work closely to control the export of drone technology, as the United States and others have done with nuclear weapons technology.
The other issue is whether or not drone killings really advance the so-called war on terror. The use of secretive drone strikes is justified as a way to "surgically" (to use Brennan's description) remove senior terrorist leaders intent on attacking the United States. The Jan. 3 strike which killed Mullah Nazir, for instance, ostensibly removed a senior battlefield commander.
But, according to the Long Wars Journal, Nazir was replaced within a day by Bahwal Khan, his top aide for the past 16 years, an Afghan fighter closely allied with al Qaeda and other terrorist groups in the region. As a result, "little will change," a U.S. intelligence official told the Journal. "It will be business as usual, we'll continue to have to take shots at al Qaeda leaders and others" in the area, the official said.
Given all these difficulties, said Zenko, "the trajectory of U.S. drone strike policies is unsustainable." On the military side, a global arms race to acquire and deploy armed drones could erode the U.S. freedom of action and threaten American friends and allies.
On the domestic side, the rising clamor of public opinion could either force the program deeper into the shadows, or impose unwieldy or counterproductive reforms from the outside -- for example a ban on all armed drone strikes.
Many security experts acknowledge that armed drones provide the United States a needed national security capability which should be retained -- and can be done so safely with a little more transparency and safeguards.
For example, Zenko suggests in a new policy paper that the president should move quickly to disclose more of the legal justification for the strikes, end the practice of crowd killings, authorize classified briefings to Congress, and, to increase accountability, assign the drone program to either the Defense Department's Joint Special Operations Command or the CIA, but not both.
Beyond that, he said, the United States might usefully set up an international protocol to limit the spread of drone technology, much as it has done with nuclear weapons technology.
"Reforming U.S. drone strike policies will be difficult and will require sustained high-level attention to balance transparency with the need to protect sensitive intelligence sources and methods," Zenko writes.
Over to you, Mr. President.
This article is part of a series produced by The Huffington Post that closely examines the most pressing challenges facing President Obama in his second term. To read other posts in the series, click here.
This story appears in Issue 33 of our weekly iPad magazine, Huffington, in the iTunes App store, available Friday, Jan. 25.
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