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May: Is the U.S. committing war crimes in its drone war? No.

An unmanned U.S. Predator drone flies over Kandahar

An unmanned U.S. Predator drone flies over Kandahar Air Field, southern Afghanistan, on a moonlit night in this file photo. (Jan. 31, 2010) Photo Credit: AP

In 1996, al-Qaida founder Osama bin Laden issued a formal declaration of war against the United States. No serious strategy was developed for defeating what most government officials dismissed as a bunch of fanatics living in mud-brick villages in Afghanistan, shaking their fists at the greatest power on Earth.

Almost two decades later -- following attacks from New York to Nairobi to Dar es Salaam to Bali to Riyadh to London to Sana'a to Mali to Benghazi -- the U.S. still lacks a coherent plan for neutralizing al-Qaida and its now-multiplying affiliates.

The U.S. does, however, have one weapon that it has been deploying to keep al-Qaida off-balance -- and to thin its top ranks.

Unmanned aerial vehicles, more popularly known as drones, were originally used for surveillance, in particular by the CIA following 9/11. Before long, however, they were adapted to fire computer-guided missiles. Armed drones quickly became President Barack Obama's weapon of choice in Afghanistan and Yemen.

Last week, both London-based Amnesty International and New York-based Human Rights Watch issued reports charging that America's use of drones has violated international law, killing scores of innocent civilians and targeting suspected terrorists in ways that, Amnesty International asserts, "may constitute extrajudicial executions or war crimes." Amnesty International and Human Rights Watch are nongovernmental organizations with no legal authority. Nevertheless, White House spokesman Jay Carney responded to their charges, saying the president "would strongly disagree" with the allegations.

"U.S. counterterrorism operations," he said, "are precise, they are lawful and they are effective."

The concern of both organizations for al-Qaida commanders is misplaced. It is neither moral nor helpful to award unlawful combatants, also known as terrorists, more rights than are due honorable soldiers who abide by the laws of war. And make no mistake: Amnesty International and Human Rights Watch are proposing exactly that. They want al-Qaida commanders to be treated as innocent-until-proven-guilty suspects, entitled to all the constitutional rights due an American citizen in a domestic judicial proceeding.

More pertinent is the groups' distress over civilian casualties -- the most tragic component of any war. Intentionally targeting civilians is among the practices that distinguish terrorists from law-abiding soldiers -- at least for those not so befuddled as to insist that "one man's terrorist is another man's freedom fighter." But the two organizations present no evidence that American drone operators are doing that -- though, indisputably, mistakes can and do happen.

How many civilians have been killed by American drones remains a matter of debate -- and definition: Should an al-Qaida commander's driver be considered a civilian? How about his doctor or his cook? His wife or son? The use of noncombatants as human shields is a clear violation of the laws of war -- a fact that does not appear to raise the blood pressure of Amnesty International and Human Rights Watch activists.

Since 2004, the use of drones has succeeded in eliminating at least 94 top leaders and operatives of al-Qaida and affiliated groups in Pakistan, according to research by The Long War Journal. Those killed have been replaced by other operatives from al-Qaida's deep bench. The new commanders have continued to plot attacks against the U.S. and its allies, and they have expanded into new theaters.

Kenneth Roth, executive director of Human Rights Watch, argues that al-Qaida is currently capable of mounting only "sporadic, isolated attacks." On that basis, he further asserts, "the war against al-Qaida is over," and the U.S. should therefore stop using drones and revert to a strict "law-enforcement" paradigm. The paradox he fails to recognize: Doing so would allow al-Qaida to reconstitute its ability to wage the war that Roth claims the U.S. has won thanks in large measure to the use of drones.

Its pushback against the charges leveled by Amnesty International and Human Rights Watch notwithstanding, the Obama administration does seem conflicted over its drone policy. After 9/11, Congress passed an Authorization to Use Military Force -- a sort of "Declaration of War Lite" -- affirming the president's power to fight al-Qaida. But four months ago, Obama called for the repeal of that authorization, explaining: "Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end."

If there's no war and no authorization, he would have diminished legal authority to use drones to "dismantle terrorist organizations."

And those implying that Obama and other Americans are war criminals would have a much more persuasive case. Why the White House would favor such an outcome is a puzzle.

Clifford D. May is president of the Foundation for Defense of Democracies, a policy institute focusing on national security. Bill Roggio, who contributed to this column, is a senior fellow at FDD and the editor of its Long War Journal, which monitors U.S. drone attacks.


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