Faisal Shahzad was arrested in New York City in 2010 after explosives were found in an SUV he had apparently parked in Times Square. The explosives were set to ignite. Shahzad was prosecuted federally, and the case went to the US District Court for the Southern District of New York. At a pretrial hearing, Judge Miriam Goldman Cedarbaum asked Shahzad whether he was aware that the explosives could have killed dozens of civilians. Shahzad replied that he picked Times Square as the location precisely to injure and kill as many people as possible. Challenged on this statement by Judge Cederbaum, Shahzad retorted: “Well, the drone-hits in Afghanistan and Iraq don’t see children; they don’t see anybody. They kill women, they kill children. They kill everybody. It’s a war,” Shahzad said, describing himself as “part of the answer” for Muslims fighting that war.1 Shahzad, a Pakistani-American, had recently been in the Waziristan region of Pakistan at the time of a missile strike from a US drone aircraft.
By 2010, the CIA and the military’s Joint Special Operations Command (JSOC) were using missile-firing pilotless aircraft liberally over Pakistan, specifically in the Waziristan region. Their use was seen as an alternative to piloted aircraft for killing persons suspected of crossing the Waziristan border into Afghanistan for action there against NATO or Afghan government forces. The use of pilotless aircraft based at nearby friendly locations allowed for precision-targeted air strikes without putting US pilots at risk.
It is unclear from information available whether consideration was given to the possible broader impact of the use of missile-firing pilotless aircraft. In a speech to the American Society of International Law in 2010, Department of State Legal Adviser Harold Koh addressed the legality of the use of these aircraft under the rules for the conduct of warfare, the so-called jus in bello. Koh said such use was lawful if the aircraft “are employed in conformity with applicable laws of war.” He did not provide detail on whether the US use is in conformity with applicable laws of war. In any event, he acknowledged that such use must conform.2
The Department of Justice (DoJ) did go into detail on US use of pilotless aircraft in light of the rules for the conduct of warfare. A white paper made public in 2013 stated that if care is taken as to targeting, no violation occurs.3 But both Koh and the DoJ white paper confined themselves to the strictly legal aspect. Neither went one step further to address what one might call “blowback” from such use. The question they did not address was whether the use of lethal pilotless aircraft might bring the United States harm that one should weigh against the perceived benefits. Might it be, in other words, that these attacks would cause the United States more harm than good? Even if the use did not violate the rules on the conduct of warfare, could it nonetheless cause enough concern among affected populations that the United States would lose credibility? Might it even result in increased acts of violence against the United States and its citizens?
It is this issue that the Shahzad statement brings into focus. The experience in Pakistan and in the other countries in which the United States uses drones suggests that these concerns may be well taken. The drone attacks have been viewed negatively by the affected populations, engendering significant resentment against the United States.
International concern over drone strikes, in particular the accompanying civilian deaths, led a United Nations Human Rights Council official to initiate an inquiry into the use of lethal drones. A special office to focus on human rights violated in the name of fighting terrorism has been established. It is headed by an official with the title of Special Rapporteur on human rights and terrorism. Ben Emmerson, the office holder in 2013, organized a task force of experts to carry out the inquiry. A particular subject of investigation is a reported practice that a second missile is frequently shot a few minutes after a first missile, killing first responders.
As far back as 2003, drone strikes have been the subject of international inquiry. The United States began using drones to kill persons on the ground in the first years of the new century. In 2003, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions investigated a US drone strike in Yemen that killed men riding in a vehicle and found the strike to be “a clear case of extrajudicial killing” in violation of international norms.4
Pakistani cricketer and political activist Imran Khan has said that the strikes carried out in his country “are turning young men into angry Jihadis.”5 There is reason to believe that the Obama administration understands the social impact of drone strikes in Pakistan. In two instances, the administration temporarily halted them following an event that caused particular ill will against the United States. The first was a January 2011 incident in which a CIA contract worker, Raymond Davis, shot and killed two Pakistanis at a traffic intersection in the city of Lahore. Davis was driving his car, and the two Pakistanis were nearby on a motorcycle. Davis initially explained that the pair had tried to rob him. It later appeared that they may have been Pakistani intelligence agents tracking Davis on suspicion of his activities in Pakistan. In any event, the killing caused outrage in Pakistan, particularly after Davis was able to avoid prosecution. Pakistani officials released him after the United States claimed he enjoyed immunity from prosecution.6
Outrage in Pakistan over Davis’s act and his subsequent release was so strong that the United States temporarily suspended drone attacks, fearing exacerbation of the anti-US sentiment. The fact that the United States suspended these attacks appeared to show that it understood the impact of the drone strikes. The United States hoped to minimize reasons for anti-US sentiment until the outrage over the Davis incident could blow over.
A second hiatus came after a November 26, 2011, incident in which NATO forces carried out a missile strike on two Pakistani posts on the Pakistan-Afghanistan border. Twenty-eight Pakistani military personnel were killed in the night raid; most of the Pakistanis were sleeping. US officials apologized and said that the targeting was inadvertent. But the government of Pakistan expressed outrage and took retaliatory measures by closing border traffic to US supply trucks. Drone attacks were suspended for several weeks.
While the United States has said as little as possible about drone strikes in Pakistan since they began, it has maintained that civilian casualties are slight. The matter came to public light in some measure when President Barack Obama nominated John Brennan in 2013 to become director of the CIA, Brennan, as a counterterrorism advisor to President Obama, had been a major architect of the drone program. His close identification with that program led to questioning of him on the issue when he appeared before the US Senate’s Intelligence Committee. Senate confirmation was required for his nomination as CIA director.
Brennan was questioned about the drone program, and in particular about the Obama administration’s silence on its rationale and impact. This demand for information prompted the administration to release the aforementioned DoJ white paper.
Brennan claimed that drone strikes are ordered only in the event of what he termed imminent threats, in order to save lives that might be lost as a result of attacks initiated by those being targeted by the drones. The white paper explained, however, that by “imminent threat” the United States did not limit itself to situations in which it was thought that the persons being targeted were about to undertake an act of violence. Imminence was understood in the sense that if the persons were thought to be planning acts of violence in the future they could be targeted.7 That understanding of imminence means that strikes are ordered on an assessment about future activity. When one assesses future activity not related to a specific future attack, there is perforce a substantial chance of inaccuracy.
The impact on the local population, hence the strength of negative local reaction, is only partially measured by the numbers of individuals killed or injured. In the locales of intensive use, in particular the Waziristan region of Pakistan, the drones have radically altered life patterns for the population. Drones are capable of hovering for long periods. They are kept aloft over certain areas on a regular basis. They make a whirring sound heard on the ground. Anyone on the ground knows they are in the crosshairs. As a result, many local inhabitants alter their daily activities in an attempt to avoid sites where they think a drone-fired missile might land and explode. They do not attend funerals, which on occasion have been targeted. They keep their children home from school. They avoid large gatherings of any kind, out of fear that someone in the group might be targeted.8
Drone strikes are difficult to predict because some are undertaken to kill a particular known individual, others are undertaken, in particular in Pakistan, on the rationale that a group of individuals has been identified and located who fit the profile of the kind of person the United States seeks to kill.9
In one instance in 2011, a local meeting, called a jirga, was being held to resolve local issues in the North Waziristan sector of Pakistan. A drone-fired missile struck, killing several dozen persons. The United States claimed that all were “insurgents,” calling them “terrorists.”10 There were apparently a handful of Taliban adherents among the dead, but the bulk were elders and others involved in sorting out the local issues under discussion.11
In some instances, a second drone attack is ordered within a short while after a first strike. These attacks are particularly likely to kill persons against whom there was no information, since bystanders often go to aid those they see in need of medical attention.
Drone strikes have been conducted in Pakistan by the United States since 2004. They had been conducted in Iraq from the time of the US invasion of 2003. Strikes have also been carried out in Yemen, Afghanistan, and Somalia.12 Curiously, two separate agencies operate drone strikes for the United States. The CIA has one drone operation, while the military has another, conducted by the US Special Operations Command, which in turn is made up of special operations commands of the Army, Air Force, Navy, and Marine Corps.
Of the countries in which the United States has conducted drone strikes, Pakistan has seen the strongest opposition, but drone strikes have been received badly wherever they take place. Presently drones are in substantial use in Yemen, where they have generated ill will. A Yemeni defense official was quoted in 2011 as saying that the United States was “turning Yemen into another Pakistan.” By that, he meant that the relatives of drone-strike victims might resort to terror tactics to avenge the deaths.13
In 2012, mass demonstrations were held in Yemen to protest the strikes.14 In 2013, armed tribesmen in Yemen, angry over a drone strike on an area of concentrated civilian habitation, blocked the main road linking the capital city Sana’a with the provincial capital Maarib in Yemen’s interior. In southern Yemen, armed tribesmen took to the streets to protest drone strikes there that they said had killed innocent civilians.15
A 2010 drone strike in Yemen demonstrated that strikes can have negative repercussions even in the short term. A drone that apparently targeted a group of al-Qaeda operatives killed the Maarib province’s deputy governor along with the operatives. The deputy governor, a respected local figure, had been in talks with al-Qaeda to try to convince them to give up their fight. Yemen’s president, Ali Saleh, was reportedly furious over the error, fearing an anti-American backlash. In evident reprisal for the killing of the deputy governor, an oil pipeline was attacked. According to the New York Times, the incident “produced a propaganda bonanza for al-Qaeda in the Arabian Peninsula.”16 The United States was forced to suspend drone strikes in Yemen for a time.17
Stanley A. McChrystal, the retired general who led JSOC, which has responsibility for the military’s drone strikes, and former CIA director Michael V. Hayden, have expressed concern that the drone wars in Pakistan and Yemen are “targeting low-level militants who do not pose a direct threat to the United States.”18 “What scares me about drone strikes is how they are perceived around the world,” said McChrystal. “The resentment created by American use of unmanned strikes is much greater than the average American appreciates. They are hated on a visceral level, even by people who’ve never seen one or seen the effects of one.” McChrystal said the use of drones exacerbates a “perception of American arrogance.”19
Drone strikes were conducted in Afghanistan over the years of combat there, but as the United States began reducing the number of its military personnel in Afghanistan in preparation for an end to a combat role, it employed drone strikes more liberally. Joshua Foust, a former adviser to the US military in Afghanistan, explained that drones allow for air strikes in Afghanistan, “without importing a bunch of pilots and the support infrastructure they’d need to remain based there.”20
In 2012, US drone strikes in Afghanistan outnumbered those in Pakistan.21 The accompanying civilian casualties caused further strain in the already delicate relationship between the United States and the government of Afghanistan.22 In 2008, the British military began using lethal drones in Afghanistan. Like the United States, Britain increased their use as it drew down its troop levels.23
The impact of drone strikes in Somalia was also problematic. Strikes were conducted in 2006, against the forces of the Union of Islamic Courts, when that organization was consolidating power in Somalia. David Kilcullen, an Australian counterinsurgency expert who advised US General David Petraeus in planning the 2007 troop surge in Iraq, and Andrew Exum, of the Center for a New American Security, found the drone strikes in Somalia counterproductive because of the negative reaction to them. “Public anger over the American show of force,” write Kilcullen and Exum, “solidified the power of extremists,” by which they mean the Union of Islamic Courts. “The Islamists’ popularity rose and the group became more extreme, leading eventually to a messy Ethiopian military intervention, the rise of a new regional insurgency and an increase in offshore piracy.”24
In each country of use, drone strikes have produced unintended consequences that were negative for the United States, even in the short term. But the United States has continued to conduct strikes, viewing the benefits as compelling. Kilcullen “has warned that drone attacks create more extremists than they eliminate.” Sir Sherard Cowper-Coles, formerly Britain’s special representative to Afghanistan and Pakistan, finds drone attacks counterproductive because of the hatred they generate.25 Kilcullen and Exum say that drone strikes in Pakistan have “created a siege mentality among Pakistani civilians.” Kilcullen and Exum acknowledge that Pakistanis may not appreciate the elements being targeted. “While violent extremists may be unpopular, for a frightened population they seem less ominous than a faceless enemy that wages war from afar and often kills more civilians than militants.” They write, “[E]very one of these dead noncombatants represents an alienated family, a new desire for revenge, and more recruits for a militant movement that has grown exponentially even as drone strikes have increased.”
The drone strikes in Pakistan are confined to the regions along the border with Afghanistan. Nevertheless, the outrage is felt throughout the country. According to Kilcullen and Exum, the strikes have brought “visceral opposition across a broad spectrum of Pakistani opinion in Punjab and Sindh, the nation’s two most populous provinces.”26
If drone strikes were the only instance of acts by the United States perceived negatively, the resentment might fade. However, they come against a background of activity regarded by many in the Middle East as promoting US interests without regard for negative impacts on local populations. Throughout the time in which the United States has been the major outside power in the Middle East, it has focused on short-term objectives. A failure to foresee consequences of measures taken has been a hallmark of its policy.
The United States helped other NATO countries remove Colonel Muammar Qaddafi from power in Libya in 2011, not realizing that the consequence would be the destabilization of North Africa as a whole. Elements of the Tuareg ethnic group who had served Colonel Qaddafi returned to their home areas in northern Mali to fight for independence for their region. Fundamentalist Islamist elements took control in northern Mali from the Tuareg nationalists, leading to a French-led military intervention. Elements from the Islamist group infiltrated into Algeria, where they took over a major oil facility, killing workers there, including three Americans.
The resulting situation in Mali has led the United States into yet another intervention. As a result of concern over the situation in Mali, the United States in 2013 beefed up the military’s Europe-based Africa command. Then the United States set up a military operational base in Niger, which neighbors Mali, to provide support for the French in Mali. A key element of this move is the introduction of drone aircraft in Niger, to be used over Mali. The idea is that the drones may provide intelligence information through surveillance flights. For the moment they are not to be used to fire missiles, though they have that capability.
So a new front in the drone wars may be opening in North Africa. A contingent of one hundred US troops was sent to Niger in 2013 to staff the base from which drone aircraft would conduct surveillance in the region. The troops were largely air force logistics specialists, intelligence analysts, and security officers.27
The elements against which the United States is now acting in North Africa are a product of an earlier US action in the Middle East. Al-Qaeda in the Islamic Maghreb, the group that carried out the Algeria attack, which is active in Mali, and is the descendant by just a few generations of the mujahideen that operated in Afghanistan. The mujahideen was financed by the United States, starting in 1979, to oppose an Afghan government that maintained close ties to the USSR. That government was no particular threat to the West, but President Jimmy Carter started the operation to counter the USSR and potentially to destabilize it. The United States supplied surface-to-air missiles to use against Soviet helicopters. The United States focused on creating difficulty for the USSR without regard to the fact that those we financed opposed not only the USSR and its support for the then-government of Afghanistan, but opposed us as well. When they successfully evicted the pro-Soviet government, the mujahideen turned their guns on the United States.
Concern in the Middle East about US actions dates from the time the United States took over from Britain as the dominant outside power in the region. The United States is widely faulted for its role in the 1953 coup against the elected government of Iran.28 The Iranian government had nationalized a British oil company, leading to fears that Western interests would lose access to Iran’s oil. The coup led to a quarter-century rule by the tyrannical Shah Mohammad Reza Pahlavi, who protected Western oil interests in Iran.29 Islamic rhetoric was used in Iran to denounce the United States for its support for the shah. The United States’ support of the shah eventually led, for the first time, to the ascent to political power of a movement that looked to an Islamic religious philosophy for its rallying point. That event led to the first major instance of anti-US violence, when the embassy of the United States was invaded in 1979 and its personnel taken hostage.
In the 1990s, Osama bin Laden mirrored the approach of couching criticism of the United States in religious terms. Bin Laden, it was said, “Islamized the traditional discourse of Western anti-imperialism. So a lot of Muslims support him, not because they see him as a true warrior for Islam, but because they hate America.”30
That hatred was based not on theological concerns but on our role in the region. Efforts to mold the politics of the region did not end with the 1953 coup in Iran. Rather, that action set a pattern that would only bring the United States into greater disrepute. In 1956, the United States paid Syrian military officers to overthrow a Syrian government that, like the pre-1953 government of Iran, sought to protect oil resources from unfair exploitation by Western companies. In 1957, the plotters turned themselves in and identified two US diplomats in Syria as CIA officers who had funded them.31 Syria expelled the diplomats.32
In neighboring Lebanon, CIA funds were directed in 1957 to candidates in an upcoming parliamentary election in order to secure the election of candidates who would in turn elect a pro-US politician, Camille Chamoun, as president.33 Our political intervention led elements previously identified as “nationalist” to move against the resulting government.
President Dwight Eisenhower dispatched US Marines the following year to Lebanon ostensibly as peacekeepers, but actually as protectors of the government that the United States had effectively purchased.34
President Eisenhower’s intervention in Lebanon, like his efforts at regime change in Iran and Syria, was not a last-minute matter. They were part of a plan of activity aimed at ensuring US dominance in the region. Eisenhower had gained from Congress a statement of support for this aim. In 1957, a Joint Resolution of Congress announced what came to be known as the Eisenhower Doctrine. The critical language read:
The United States regards as vital to the national interest and world peace the preservation of the independence and integrity of the nations of the Middle East. To this end, if the President determines the necessity thereof, the United States is prepared to use armed forces to assist any such nation . . . requesting assistance against armed aggression from any country controlled by international communism.35
Interventions of this type can engender so much ill will as to lead to violence. While the connection is rarely made in mass media, it did appear in a news interview conducted in the United States on the day after the September 11, 2001, attacks. Alon Pinkas, Consul General of Israel, was being interviewed by Dan Rather for CBS News. Rather asked a question that suggested US policy toward Israel may have been a factor in the September 11 attacks:
RATHER: Mr. Consul General, to those Americans who may be thinking or may be even saying to one another, ‘You know, we wouldn’t be having this trouble if we hadn’t supported Israel for more than half a century,’ you say what?
Amb. PINKAS: I say something very simple. This—this is not about Israel. Let’s—let’s delink. This is ridiculous to even link this.36
Rather did not press Pinkas on the issue, and other news media failed to pick up on it. But Rather had touched on a matter vital to US foreign policy. If the United States pursues policies that lead to anger, repercussions may follow. Rather might have expanded his question to other examples of US policy in the Middle East, but US policy on Israel would figure high on any such list.
President George W. Bush seemed oblivious, at least in public statements, to this phenomenon. President Bush addressed a joint session of Congress a few days after the September 11 attacks. He asked rhetorically, “Why do they hate us?” Answering his own question, Bush declared, “They hate what they see right here in this chamber: a democratically elected government. . . . They hate our freedoms: our freedom of religion, our freedom of speech, our freedom to vote and assemble and disagree with each other.”37
But the issue surfaced again when a Saudi prince, Alwaleed bin Talal bin Abdul Aziz Alsaud, publicly presented a check for ten million dollars to New York City Mayor Rudolph Giuliani. Prince bin Talal said the check was to go to efforts at recovery from the September 11 attack. Giuliani publicly accepted the check and expressed thanks.
In a press statement that followed, Prince bin Talal opined on the cause of the September 11 attacks. He said, “[A]t times like this one, we must address some of the issues that led to such a criminal attack. I believe the government of the United States of America should reexamine its policies in the Middle East and adopt a more balanced stance towards the Palestinian cause.”38
Prince bin Talal’s statement was reminiscent of Rather’s question to Pinkas. Prince bin Talal was suggesting that the attacks were related to US policy. Mayor Giuliani reacted angrily. “There is no moral equivalent for this act,” he said. “The people who did it lost any right to ask for justification for it when they slaughtered 4,000 or 5,000 innocent people. And to suggest that there’s a justification for it only invites this happening in the future.” Giuliani announced that New York would not cash Prince bin Talal’s check.39
In 2010, General Petraeus, testifying before the US Senate Armed Services Committee, made nearly the same point as Prince bin Talal. As head of the US Central Command, General Petraeus had responsibility for the US wars in Iraq and Afghanistan. His testimony related to those conflicts. But, probably surprising to the assembled senators, Petraeus raised the Israel-Palestine issue. He found US policy there an impediment to US goals in Iraq and Afghanistan. “The enduring hostilities between Israel and some of its neighbors,” Petraeus said:
[P]resent distinct challenges to our ability to advance our interests in the AOR [Centcom’s Area Of Responsibility]. Israeli-Palestinian tensions often flare into violence and large-scale armed confrontations. The conflict foments anti-American sentiment, due to a perception of U.S. favoritism for Israel. Arab anger over the Palestinian question limits the strength and depth of U.S. partnerships with governments and peoples in the AOR and weakens the legitimacy of moderate regimes in the Arab world. Meanwhile, al-Qaida and other militant groups exploit that anger to mobilize support. The conflict also gives Iran influence in the Arab world through its clients, Lebanese Hezbollah and Hamas.40
Petraeus spoke from considerable familiarity with the region. What he said was for many around the world a truism, but in the United States his statement caused shockwaves.
Just at the time Shahzad was arrested, an inquiry was ongoing in Britain over the legality of Britain’s role in assisting the United States in its 2003 invasion of Iraq. The Chilcot Commission was taking testimony on the issue. One of the witnesses was Baroness Manningham-Buller, who headed the British equivalent of the FBI from 2002 to 2007. The baroness testified on the impact of the Iraq war on anti-Western terrorism. She said that the invasion of Iraq was counterproductive in that regard:
Our involvement in Iraq, for want of a better word, radicalized a whole generation of young people—not a whole generation, a few among a generation—who saw our involvement in Iraq, on top of our involvement in Afghanistan, as being an attack on Islam.41
According to Manningham-Buller, who possessed considerable access to information as a result of her post in the British government, the invasion of Iraq brought an uptick in terrorism.
The possibility that US military action resulting in civilian deaths might be a cause of anti-US violence was taken seriously in US government circles. General McChrystal reported that he had warned his troops about killing civilians. He said what he called the “insurgent math” in Afghanistan is that “for each innocent person you kill, you make 10 enemies. Yet we keep killing and making more enemies.”42
In 2010, a policy issue that surfaced in New York City brought the same matter to public attention. An Islamic community center was to be built not far from the site of the destroyed World Trade Center. On the CBS television program 60 Minutes, newscaster Ed Bradley interviewed Imam Feisal Abdul Rauf, a principal backer of the project. Bradley raised the question of the September 11 attacks on the World Trade Center. Imam Rauf suggested that the attacks were related to US policy in the Middle East. Bradley posed a pointed question:
BRADLEY: Are you in any way suggesting we in the United States deserved what happened?
RAUF: I wouldn’t say that the United States deserved what happened. But the United States’ policies were an accessory to the crime that happened.
BRADLEY: You say we’re an accessory?
RAUF: Yes.
BRADLEY: How?
RAUF: Because we have been an accessory to a lot of innocent lives dying in the world. In fact, in the most direct sense, Osama bin Laden is made in the USA.43
Bin Laden often cited three issues that he held against the West: the presence of US troops at the Muslim holy sites of Mecca and Medina in Saudi Arabia, the deaths of more than 600,000 children caused by Western-imposed economic sanctions in Iraq during the 1990s, and Israel’s treatment of the Palestinian Arabs.44
Another episode around the same time put the issue into the public arena. In Florida, Pastor Terry Jones of the Dove World Outreach Center announced that he would publicly burn the Koran on the 2010 anniversary of the September 11 attacks. Jones’ plan was widely publicized both in the United States and in the Middle East. His announcement was generally interpreted abroad as reflecting US government policy, since the Obama administration said that the preacher enjoyed freedom of speech. In many countries, so-called hate speech directed at racial or religious groups is punishable by criminal penalties. General Petraeus commented on the situation, expressing concern that the publicity surrounding Jones’ plan “puts our soldiers at jeopardy.” Petraeus, who, as we saw, well understood that US actions have effects in the Middle East, said that, “images from such an activity could very well be used by extremists here and around the world.45 Jones eventually backed down from his plan of Koran-burning.
President Obama caught the attention of the Arab and Muslim worlds with a speech he delivered in Cairo shortly after being elected. President Obama spoke as if he wanted to move US policy toward better understanding of that part of the world. He spoke about the Palestinians in a way that reflected an appreciation for their predicament and seemed to promise a new approach from the United States. He said that it was “undeniable that the Palestinian people—Muslims and Christians—have suffered in pursuit of a homeland.” Referring to the displacement of Palestinian Arabs that accompanied the creation of Israel in 1948, he said, “For more than sixty years they have endured the pain of dislocation. Many wait in refugee camps in the West Bank, Gaza, and neighboring lands for a life of peace and security that they have never been able to lead.”
President Obama touched on Israel’s practices in the West Bank, which Israel occupies, saying that the Arabs living under Israel’s occupation “endure the daily humiliations—large and small—that come with occupation. So let there be no doubt: the situation for the Palestinian people is intolerable. America will not turn our backs on the legitimate Palestinian aspiration for dignity, opportunity, and a state of their own.”
In words that suggested the United States might use its influence with Israel to change Israeli policies, he said:
Israelis must acknowledge that just as Israel’s right to exist cannot be denied, neither can Palestine’s. . . . Israel must also live up to its obligation to ensure that Palestinians can live and work and develop their society. Just as it devastates Palestinian families, the continuing humanitarian crisis in Gaza does not serve Israel’s security; neither does the continuing lack of opportunity in the West Bank. Progress in the daily lives of the Palestinian people must be a critical part of a road to peace, and Israel must take concrete steps to enable such progress.46
So the situation of the Palestinians was intolerable, and Israel was responsible. Obama’s words were well received in the Arab and Muslim worlds.47
The United States did not follow up on the Cairo speech, however, with concrete action. It pursued the policies of prior administrations of placing only mild pressure on Israel to comply with international norms in its administration of occupied Palestine territory. The glow of Cairo quickly faded. Only one year after the Cairo speech, a Pew Research survey of opinion about the United States found the earlier negative view of the United States reasserting itself. “You get a sense of Muslim disappointment with Barack Obama,” reported Andy Kohut, Pew Research’s president. Kohut attributed the disappointment to discontent with US policy on the Israeli-Palestinian conflict and to expectations raised by Obama’s Cairo speech.48 Pew Research thus confirmed General Petraeus’s observation that US policy on the Israel-Palestine issue is a key source of hostility against the United States.
In 2012, the United States stood practically alone in the UN General Assembly in opposing a resolution to acknowledge Palestine’s statehood. The resolution, adopted November 29, 2012, recites that the observer mission of Palestine at the United Nations is the observer mission of a state.49 The United States took this stance out of deference to Israel, but the negative ramifications are enormous. The United States places itself in opposition to a movement for Palestine independence that enjoys overwhelming support around the world, and in particular in the countries of the Middle East.
In 2011, the United States had opposed UN admission for Palestine. The effort exerted by the Obama administration to keep Palestine’s admission from coming to a vote in the UN Security Council demonstrated that the administration understood its general backing of Israel over and against Palestine brings harm to the United States. When the admission application reached the Security Council, the United States lobbied other council members to oppose the application in order to avoid the matter coming to a vote. Had there been a vote with a majority of council members in favor of Palestine’s admission, the United States would have cast a veto. But the administration understood that a veto would further increase the anger against the United States in the Middle East. Administration officials did not admit as much, but French President Nicolas Sarkozy said it for them. Sarkozy declared of a possible US veto on Palestine’s admission, “Who could doubt that a veto at the Security Council risks engendering a cycle of violence in the Middle East?”50
France decided to save the United States from having to veto. While the matter was under discussion in a closed-door session in the Security Council, France announced it would abstain if the matter came to a vote. A French abstention would leave Palestine one vote short of the nine required for adoption of a Security Council resolution.51 Hence the United States would not need to cast a veto to block Palestine membership.52 The Security Council announced it would not bring the matter to a vote.53
The United States is seen as supporting Israel at a time when Israel stalls in peace talks, giving itself time to take over more Palestine territory by building settlements. The Obama administration, the Cairo speech notwithstanding, maintained a position held by other recent US administrations that places the United States out of the international consensus on this issue, and squarely on the side of Israel. The consensus position is that the settlements are unlawful in violation of the obligation of a belligerent occupant to refrain from facilitating the transfer of persons under its auspices into the occupied territory.54 Early on in Israel’s occupation of Palestinian territory the United States was part of the international consensus. In 1978, State Department Legal Adviser Herbert Hansell wrote an official opinion on the legality of Israel’s settlements. Hansell found the settlements to be “inconsistent with international law.”55
But a change of administration in Washington saw retrenchment on the issue. In 1981, President Ronald Reagan declared with regard to the settlements: “I disagreed when the previous administration referred to them as illegal—they’re not illegal.”56 No subsequent US administration has disavowed Reagan’s statement. Presidents who followed Reagan did not say that they considered the settlements unlawful.
President Obama went so far as to say that new settlements would lack “legitimacy.” But he did not make the clear statement of Legal Adviser Hansell that they are illegal. Obama had said in his Cairo speech, “The United States does not accept the legitimacy of continued Israeli settlements. This construction violates previous agreements and undermines efforts to achieve peace. It is time for these settlements to stop.”57
Obama’s statement that “continued” settlements lack “legitimacy” implied that prior-built settlements do enjoy legitimacy. This policy line was taken up by Secretary of State Hillary Clinton, who said, “We do not accept the legitimacy of continued settlement activity.”58
When the issue of Israel’s settlements has come up in the Security Council, where the United States enjoys veto power, the United States has refused to condemn them. From the start of the Israel-Palestine negotiation process in 1993, the United States has taken the position that it will veto draft Security Council resolutions that criticize Israel on any issue. When resolutions were put before the council in the mid-1990s to criticize Israel for settlement construction in east Jerusalem, the United States vetoed, announcing that the veto was cast not on the merits of settlement construction but on the rationale that the parties were working matters out through negotiations, and that any criticism by the council would constitute interference.59 The United States is the only one of the five permanent members of the Security Council to take this view.
A major source of hostility toward the United States is the liberal monetary aid the United States gives Israel. That aid is seen as allowing Israel to invest in settlements. The United States also stands apart from the international consensus on the right of Palestinians displaced from their home areas in 1948, and out of the territory Israel captured in that year, to be repatriated. Since the early 1990s, the United States has removed itself from the consensus position held in the international community that these Palestinian Arabs and their descendants have a right under international law to be repatriated. Beginning in the 1990s, the United States stopped voting in favor of the resolution that the General Assembly would adopt annually, asking Israel to implement General Assembly Resolution 194 of 1948, which calls on Israel to repatriate the displaced Palestine Arabs.
The reaction in the Middle East to drone strikes comes against the long history of US actions regarded as adverse to local interests. Understanding this history and the reaction to drone strikes, the United States nonetheless continues to employ them. From the United States’ standpoint, it is hardly surprising that drone strikes occupy a central position in US military strategy. A commander in chief wants to protect subordinates, and drones offer an opportunity to kill enemies without putting subordinates at risk. It is this logic that makes drone use so difficult to challenge. A commander in chief may also rationalize that using long-range missiles or piloted aircraft to kill enemies likewise involves hazards of harm to unintended victims. Even though drone strikes carry risk of harm to unintended victims, other methods of killing do as well.
That logic, of course, begs the question of whether any of these possible methods of killing is appropriate either as a matter of law or as a matter of sound policy. The case for the legality of drone strikes in the theaters in which the United States uses them is far from ironclad. The Iraq war was undertaken on the strength of Security Council resolutions that required strained interpretation to reach a conclusion of legality.60 The underlying rationale of countering weapons of mass destruction turned out to be fantasy.
The Afghanistan invasion in 2001 was executed on the strength of a self-defense argument that stretched the meaning of the self-defense concept. The argument for legality in the Afghanistan case required a finding that the United States had been subjected to an “armed attack” within the meaning of the UN Charter, as opposed to an act of violence appropriately handled by criminal prosecution. Further required was a finding that even if an “armed attack” had occurred, a full-scale invasion was the only manner in which it could be repelled. The result was the longest war in the history of the United States, with loss of life and harm to individuals far exceeding anything contemplated at the time of the invasion.
The legality of drone strikes in Pakistan rests in the first instance on the legality of military action in Afghanistan, since the rationale is to quiet military elements who base themselves in Pakistan to attack US or Afghan forces in Afghanistan. Beyond that hurdle, the expansion of the battlefield to a neighboring country raises serious questions of legality, in particular in light of less than avid acceptance of drone strikes by the government of Pakistan. And the final hurdle is the laws governing methods of warfare, which require protection of civilians. The rate of civilian casualties, though disputed, appears sufficiently high to cast doubt on compliance with this body of law.61
But even if legality was solid on all counts for all the countries where drones are used, the question remains whether the United States has improved its situation by their use, or whether, to the contrary, it has harmed itself. One side of that equation is the claimed military benefit. The Obama administration claims to have disabled the leadership of al-Qaeda, hence, to have achieved a military advantage. The claim is difficult to assess because of the silence of the administration on the details of strikes. The administration frequently claims that a particular victim of a drone strike holds a high position in al-Qaeda. The status of victims is difficult to gauge. A further source of uncertainty in this assessment is the difficulty of knowing the extent to which al-Qaeda leadership can be replaced.
Even if military advantage is indeed gained, the other side of the equation remains to be assessed. To what extent does the negative fallout weigh against the gain? Does the harm outweigh the benefit? This chapter has focused on the harm. It too is hard to quantify.
Attempts have been made to quantify the harm from anti-terrorism measures, but such projects present technical challenges.62 The harm could turn out to be greater than anyone, this writer included, presently imagines. On the other hand, it could turn out to be manageable from the US point of view. Only time will answer the question. The evidence to date suggests, at the very least, that the United States is running a great risk that the harm will, in the long run, outweigh the gain.
This may be the kind of question that future historians will debate. Was our arming of the mujaheddin in Afghanistan with surface-to-air missiles to bring down Soviet helicopters beneficial to the United States in the long run? Was causing difficulty for the USSR in Afghanistan an appropriate objective? If it was, how much difficulty was in fact caused? To what extent did our arming of the mujahideen contribute to bringing down the Soviet government? And did the United States, by initiating the arming of guerrilla-type forces in Afghanistan, start a process of which the United States today is reaping the negative consequences?
It is hardly a surprise that al-Qaeda is able to recruit persons willing to give their lives to fight the United States. Our history, as briefly recounted above, of interfering in domestic matters in the Middle East has created a situation in which the bulk of the population in most countries there harbors resentment against the United States. In that context, al-Qaeda can appeal to patriotism to convince the youth that putting one’s life on the line is a noble act.
It may well be that for the United States, the path to protection from acts of violence lies less in military action, whether using drone strikes or otherwise, than in a revised focus on national objectives. President Obama’s 2009 Cairo speech, and the favorable reaction it engendered, demonstrated that the cause of the United States in the Middle East is not hopeless.
Gen. Petraeus learned the hard way how our policy on the Palestine-Israel question hampered his ability to put down anti-US elements in Afghanistan. His military efforts, as he reported, were rendered all but impossible to bring to a successful end because US policies on the Palestine-Israel question negated what he was trying to achieve. If the United States were to mold its policies in the direction of promoting local aspirations, there is every reason to believe that support for acts of violence against the United States would diminish. A change in policies might well be more effective than missiles fired from drone aircraft.
1 Tina Susman, Guilty Plea, and a Threat of More Attacks, From New York Bomber, Balt. Sun, June 22, 2010, at 1A.
2 Harold Hongju Koh, Legal Adviser, US Department of State, Annual Meeting of the American Society of International Law (March 25, 2010), available at www.state.gov/s/l/releases/remarks/139119.htm.
3 Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force, at 8-9 (Nov. 8, 2011), see Appendix A..
4 UN Economic and Social Council, Special Rapporteur for Extrajudicial, Summary or Arbitrary Executions, Civil and Political Rights, Including the questions of Disappearances or Summary Executions, ¶ 39, UN Doc. E/CN.4/2003/3, 59th sess. (2003) (Asma Jahangir).
5 Rob Crilly, Imran Khan’s anti-drone protest falls short of destination, Telegraph (October 7, 2012), www.telegraph.co.uk/news/worldnews/asia/pakistan/9592632/Imran-Khans-anti-drone-protest-falls-short-of-destination.html.
6 Stanford Law Sch.& New York Univ. Sch. of Law, Living Under Drones: Death Injury, and Trauma to Civilians from US Drone Practices in Pakistan 15 (2012), available at www.livingunderdrones.org/wp-content/uploads/2012/10/Stanford-NYU-LIVING-UNDER-DRONES.pdf (hereafter Living under Drones).
7 Lawfulness of a Lethal Operation Directed Against a U.S. Citizen, supra note 3, at 8.
8 Living under Drones, supra note 6, at 88-99.
9 Id. at 12-13.
10 Salman Masood & Pir Zubair Shah, C.I.A. drones kill civilians in Pakistan, N.Y. Times (Mar. 17, 2011), www.nytimes.com/2011/03/18/world/asia/18pakistan.html?_r=0.
11 Living under Drones, supra note 6, at 58, 61-62.
12 Mary Ellen O’Connell, The International Law of Drones, ASIL Insight (Nov. 12, 2010), www.asil.org/insights101112.cfm.
13 Hakim Almasmari, US makes a drone attack a day in Yemen, The National (June 15, 2011), www.thenational.ae/news/world/middle-east/us-makes-a-drone-attack-a-day-in-yemen.
14 Yemenis protest US drone attacks outside president’s house, Press TV (January 28, 2013), available at www.presstv.com/detail/2013/01/28/286057/yemenis-protest-us-drone-attacks/.
15 Natasha Lenard, Yemen’s human rights minister criticizes U.S. drone strikes, Salon (Jan. 23, 2013), www.salon.com/2013/01/23/yemens_human_rights_minister_criticizes_us_drone_strikes/.
16 Scott Shane, Mark Mazzetti & Robert F. Worth, Secret assault on terrorism widens on two continents, N.Y. Times, Aug. 15, 2010, at A1.
17 Mark Mazzetti, Charlie Savage & Scott Shane, A U.S. citizen, in America’s cross hairs, N.Y. Times, Mar. 10, 1013, at A1.
18 Robert F. Worth, Mark Mazzetti & Scott Shane, Drone strikes’ risks to get rare moment in the public eye, N.Y. Times (Feb. 5, 2013), www.nytimes.com/2013/02/06/world/middleeast/with-brennan-pick-a-light-on-drone-strikes-hazards.html?pagewanted=all.
19 David Alexander, Retired general cautions against overuse of “hated” drones, Reuters (Jan. 7, 2013), www.reuters.com/article/2013/01/07/us-usa-afghanistan-mcchrystal-idUSBRE90608O20130107.
20 Shashank Bengali & David S. Cloud, U.S. drone strikes up sharply in Afghanistan, L.A. Times (Feb. 21, 2013), articles.latimes.com/2013/feb/21/world/la-fg-afghanistan-drones-20130222.
21 Spencer Ackerman, 2012 was the year of the drone in Afghanistan, Wired (Dec. 6, 2012), www.wired.com/dangerroom/2012/12/2012-drones-afghanistan/.
22 See AP, More Afghan civilians killed by drones in 2012, U.N. Says, CBS News (Feb. 19, 2013), www.cbsnews.com/8301-202_162-57570052/more-afghan-civilians-killed-by-drones-in-2012-u.n-says/.
23 Nick Hopkins, UK to double number of drones in Afghanistan, Guardian (Oct. 22, 2012), www.theguardian.com/world/2012/oct/22/uk-double-drones-afghanistan.
24 David Kilcullen & Andrew McDonald Exum, Death From Above, Outrage Down Below, N.Y. Times (May 16, 2009), www.nytimes.com/2009/05/17/opinion/17exum.html?pagewanted=all.
25 Peter Osborne, It may seem painless, but drone war in Afghanistan is destroying the West’s reputation, Telegraph (May 30, 2012), www.telegraph.co.uk/news/worldnews/asia/afghanistan/9300187/It-may-seem-painless-but-drone-war-in-Afghanistan-is-destroying-the-Wests-reputation.html.
26 Kilcullen & Exum, supra note 24.
27 US troops in Niger drone base, Sydney Morning Herald (Feb. 24, 2013), www.smh.com.au/world/us-troops-in-niger-drone-base-20130223-2ey6e.html.
28 Kermit Roosevelt, Countercoup: The Struggle for Control of Iran 150-197 (McGraw-Hill 1979).
29 Jonathan Kwitny, Endless Enemies: The Making of an Unfriendly World 161-178 (St. Martin’s Press 1984).
30 John F. Burns, Bin Laden Stirs Struggle on Meaning of Jihad, N.Y. Times, Jan. 27, 2002, at Al.
31 Wilbur Crane Eveland, Ropes of Sand: America’s Failure in the Middle East 253-254 (W. W. Norton & Co. Inc. 1980).
32 Syria Expelling 3 U.S. Diplomats, N.Y. Times, Aug. 14, 1957, at A1.
33 Eveland, supra note 31, at 276.
34 Helena Cobban, The Making of Modern Lebanon 89 (Westview Press 1985).
35 Joint Resolution to Promote Peace and Stability in the Middle East, Pub.L. 85-7 Sec. 2 (1957).
36 Continuing coverage of terrorist attack on America, CBS Special Report, 12 Noon PM ET, Sept. 12, 2001.
37 George W. Bush, President, United States, President Bush’s address to a joint session of Congress and the nation (Sept. 21, 2001), available at www.washingtonpost.com/wp-srv/nation/specials/attacked/transcripts/bushaddress_092001.html.
38 Jennifer Steinhauer, Giuliani Says City Won’t Accept $10 Million Check From Saudi, N.Y. Times (Oct. 11, 2001), www.nytimes.com/2001/10/11/nyregion/11CND-PRIN.html.
39 Jennifer Steinhauer, Citing Comments on Attack, Giuliani rejects Saudi’s gift, N.Y. Times, Oct. 12, 2001, at B13.
40 David Horovitz, Editor’s Notes: Crime and Punishment, Jerusalem Post, March 19, 2010, at 24, available at www.jpost.com/Opinion/Columnists/Editors-Notes-Crime-and-punishment; Jill Dougherty, Clinton dismisses any crisis with Israel, CNN (March 16, 2010), www.cnn.com/2010/POLITICS/03/16/israel.clinton/index.html.
41 Sarah Lyall, Ex-Official Says Afghan and Iraq Wars Increased Threats to Britain, N.Y. Times, July 21, 2010, at A10.
42 Maureen Dowd, Seven Days in June, N.Y. Times, June 23, 2010 at A27.
43 Interview With Imam Feisal Abdul (Sept. 8, 2010) (transcript available at transcripts.cnn.com/TRANSCRIPTS/1009/08/lkl.01.html).
44 Osama Bin Laden v. The U.S.: Edicts and Statements, Frontline (PBS Sept. 5, 2013, 9:09 PM), www.pbs.org/wgbh/pages/frontline/shows/binladen/who/edicts.html.
45 Good Morning America, ABC News (Sept. 2, 2010).
46 Barack Obama, President, United States, Remarks by the President on a New Beginning Cairo University Cairo, Egypt (June 4, 2009), available at www.whitehouse.gov/the-press-office/remarks-president-cairo-university-6-04-09.
47 Jeffrey Fleishman, Is graceful talk enough in Muslim world?, Chi. Tribune, June 5, 2009, at C1.
48 Alan Fram, Worldwide, Muslims leery of Obama, Bos. Globe, June 18, 2010, at 13.
49 G.A. Res. 67/19, 3, UN Doc. A/RES/67/19 (Nov. 29, 2012).
50 Neil MacFarquhar, France breaks with Obama on Palestinian statehood issue, N.Y. Times (Sept. 21, 20110), www.nytimes.com/2011/09/22/world/middleeast/france-breaks-with-obama-on-palestinian-statehood-issue.html.
51 US pressure preventing us from getting nine UNSC votes - Palestinian minister, BBC Monitoring Middle East, Nov. 10, 2011.
52 Catrina Stewart, UK and France vow to halt Palestinian UN bid, Independent (Nov. 5, 2011), www.independent.co.uk/news/world/middle-east/uk-and-france-vow-to-halt-palestinian-un-bid-6257576.html.
53 Shlomo Shamir & Reuters, UN Security Council panel fails to agree on Palestinian statehood bid, Ha’aretz (Nov. 11, 2011), www.haaretz.com/news/diplomacy-defense/un-security-council-panel-fails-to-agree-on-palestinian-statehood-bid-1.395072.
54 S.C. Res 465, UN Doc. S/RES/465 (Mar. 1, 1980); Geneva Convention IV: Relative to the Protection of Civilian Persons in Time of War, art. 49, Aug. 12, 1949, 75 U.N.T.S. 288.
55 Herbert Hansell, re International Law and Israeli settlement policy, in Digest of United States Practice in International Law 1575-83 (1978).
56 Excerpts from interview with President Reagan conducted by five reporters, N.Y. Times, Feb. 3, 1981, at A14.
57 Obama, supra note 46.
58 CNN Wire Staff, Fayyad: Peace talks may need stronger U.S. mediation role, CNN (Dec. 12, 2010), www.cnn.com/2010/US/12/12/mideast.talks/index.html.
59 U.N. SCOR, 50th Sess., 3538th mtg. at 6, U.N. Doc. S/PV.3538 (May 17, 1995), reported in Barbara Crosette, U.S. vetoes a condemnation in U.N. of Israeli land seizure, N.Y. Times, May 18, 1995, at A10; U.N. SCOR, 52nd Sess., 3747th mtg. at 4, U.N. Doc. S/PV.3747 (Mar. 7, 1997), reported in Paul Lewis, U.S. vetoes U.N. criticism of Israel’s construction plan, N.Y. Times, March 8, 1997, at A3.
60 Marjorie Cohn, Cowboy Republic: Six Ways the Bush Gang has Defined the Law 21–23 (Polipoint Press 2007).
61 See Ross chapter 7.
62 See Ivan Sascha Sheehan, Has the War on Terrorism Changed the Terrorist Threat?, 31 Studies in Conflict and Terrorism, at 743 (2009).