The Obama speech – does it make a difference?

On Thursday, President Obama made his much anticipated speech on the future of the US’ counter-terrorism strategy and directly addressed his government’s drones programme.  Under his watch, this programme has increased exponentially and has been marred by accusations of excessive civilian casualties, violations of international law, and concerns at the negative impact of this approach on radicalisation and increased anti-Americanism.  His speech was preceded by a letter from the Attorney General, to the Senate Judiciary Committee Chair, in which it was acknowledged that the US had carried out drone attacks on four US citizens.  These were: Samir Khan, Anwar al-Awlaki and his teenage son, Abdulrahman al-Awlaki in Yemen and Jude Mohammed in Pakistan.

The key points made in his speech were:

  • the rejection of a “boundless ‘global war on terror’”, closely followed by an articulation as to why the US has been involved in the various countries in which it uses drones:

Thousands of Pakistani soldiers have lost their lives fighting extremists. In Yemen, we are supporting security forces that have reclaimed territory from AQAP [Al-Qaeda in the Arabian Peninsula]. In Somalia, we helped a coalition of African nations push al Shabaab out of its strongholds. In Mali, we are providing military aid to a French-led intervention to push back al Qaeda in the Maghreb, and help the people of Mali reclaim their future.

  • But, Obama advocated that the drone programme is part of “just war…. a war waged proportionally, in last resort, and in self-defense.”  All of these justifications have been previously challenged by legal scholars, activists and others.  However, he did recognise the seductive power of drones, noting they can “lead a president and his team to view drone strikes as cure-all for terrorism”.
  • He highlighted his “Presidential Policy Guidance” which remains secret but, he claimed, would increase oversight and accountability.
  • On the subject of civilians, he acknowledged that there have been civilian casualties but advocated that without the use of drones, and by not adopting a more conventional approach to warfare, such  as “invasions”, the US had avoided mission creep which could have led to new wars.  He further  stated “There is a wide gap between U.S. assessments of such casualties, and non-governmental reports” and then pertinently ignored why this gap might exist – namely a lack of transparency around the use of drones.  He also studiously ignored the fact that the casualty counting undertaken by organisations such as the Bureau of Investigative Journalism had robust methodologies and were considered by many drone watchers to be a key, authoritative source.
  • Obama then claimed that there had been strong oversight of the drones programme via briefings to the relevant Congressional Committees.  However, he also noted that he is considering two additional aspects of improved oversight.  The first, a special court to consider and authorise strikes; an option countered by the argument that it raised “serious constitutional issues about presidential and judicial authority”.   The second idea was “the establishment of an independent oversight board in the executive branch” which he argued “avoids those problems, but may introduce a layer of bureaucracy into national-security decision-making, without inspiring additional public confidence in the process”.
  • He finished his speech with a lament as to the continued existence of Guantanamo Bay and called on “Congress to lift the restrictions on detainee transfers from GTMO” but failed to set a clear time frame for the transfer of cleared detainees.  Both Reprieve and CagePrisoners have both published short evaluations of this aspect of the speech.

Obama’s speech was accompanied by the publication of a document, U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities, which shed more light on the US approach to this issue.  Its three key points are: the need for a legal basis for using lethal force; the need for a target to pose a “continuing, imminent threat to U.S. persons”; and respect for national sovereignty and international law.  The following criteria should also be met:

1) Near certainty that the terrorist target is present; 2) Near certainty that non-combatants will not be injured or killed; 3) An assessment that capture is not feasible at the time of the operation; 4) An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and 5) An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

While these criteria are welcome from the perspective that at the least the US has some standards for their drone use, there is a serious concern that these criteria will function as a new legal standard for drone use, divorced from a relevant basis in international humanitarian or human rights law.

There is much for the UK to consider in this speech, not least the merits of being more open about the use of drones by Government.  This was further advocated on Monday by the UN High Commissioner for Human Rights, Navi Pillay, in a speech before the 23rd session of the UN Human Rights Council.

I also continue to be profoundly disturbed at the human rights implications of the use of armed drones in the context of counter-terrorism and military operations, with an increasing number of States seeking to acquire such weapons. The worrying lack of transparency regarding the use of drones has also contributed to a lack of clarity on the legal bases for drone strikes, as well as on safeguards to ensure compliance with the applicable international law. Moreover, the absence of transparency has created an accountability vacuum, in which victims have been unable to seek redress.

President Obama’s statement suggests that in the future there will be a shift towards greater transparency by the United States, as well as stricter controls on the use of drones. Nevertheless, I urge all States to be completely transparent regarding criteria for deploying drone strikes, and to ensure that their use complies fully with relevant international law. Where violations do occur, States should conduct independent, impartial, prompt and effective investigations, and provide victims with an effective remedy.

While Obama’s speech left a number of fundamental questions unaddressed, and glossed over key aspects of the criticism his Administration has sustained as a result of the use of drones, it is at least a start toward greater transparency.  That said, the US commitment to drones shows little sign of abating with a drone strike in Pakistan today, 29th May, the first strike after the Pakistani elections on 11 May and the shooting down of a drone, believed to be US owned, over Somalia, yesterday.  In this respect, while his speech may have bought him kudos in the US for whom the lack of transparency and arguably the lack of a sustainable strategy of the drones programme have been issues of concern, those living under drones can draw little comfort from his speech.

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