Redefining Imminent: Are Obama's Efforts to Justify Drone Warfare Aimed at Iran?

By Thomas Darnstädt, Marc Hujer and Gregor Peter Schmitz

When it comes to America's security, President Barack Obama has turned out to be just as ruthlessly determined as his predecessor -- particularly when it comes to using drones to wage the war on terror. But the target of his recent legal repositioning might have much less to do with terrorists than with Iran.

Photo Gallery: Obama's Expanding Drone War Photos
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On a recent Monday afternoon, US President Barack Obama was sitting in the White House, participating in a live video chat with handpicked Internet users. They were discussing relatively superficial issues, such as what a blessing it is to have daughters and whether Obama could be convinced to perform a little dance on camera. But then, in the middle of this innocuous banter, "Evan from Brooklyn, New York" appeared on the screen wanting to know about the drone war. Isn't the president overstepping moral and legal boundaries, Evan asked, when he has potentially innocent people killed at the touch of a button?

Until now, speaking openly about America's drone war in Pakistan was practically a breach of secrecy for members of Obama's administration. Indeed, his staff has made great efforts to avoid even using the word "drone." But, on this Monday in late January, the president didn't seem to mind using the taboo word repeatedly. The goal of the drone war -- the use of remote-controlled, unmanned aircraft armed with powerful precision weapons -- is to eliminate the leaders of al-Qaida, the president said without hesitation. No one should be concerned about the legality of such action, he said, adding that the drone program was kept on "a short leash."

The exchange marked the first time that Obama has spoken publicly about the secret drone program. What's more, he did so in such a casual and matter-of-fact way that one is left to wonder whether he realizes just how explosive his words actually are. As much as the Americans have gotten used to it, this war is a breach of taboo. Under CIA auspices, people around the world are being killed at the touch of a button, and those pushing the button have no compunction about not charging their targets with a crime or proving them guilty. It is a war that feels no obligation to play by the customary rules, a form of assassination that occasionally even targets American citizens.

Obama had actually come into office promising to end the "imperial presidency" of his predecessor, George W. Bush, whose administration had claimed absolute power unlike anything seen since the Watergate scandal of former President Richard Nixon. Obama had promised to shut down the Guantanamo detention camp and put an end to torture methods that violate human rights. He had declared war on the secretiveness and the controversial wiretapping program of the Bush administration. His own administration was supposed to be more transparent, more open and more honest -- and less belligerent. Obama, the former professor of constitutional law, wanted to reintroduce America to the limits of the constitutional state.

Out Bushing Bush

Now that Obama has been in office for three years, it is abundantly clear that he has not made good on most of these pledges. Although he banned the torture practices of the previous administration, he has failed to abolish the indefinite detention of terror suspects. Guantanamo is still in operation, and detainees will continue to be tried there before military tribunals. Ironically, former Vice President Dick Cheney, who represents everything Obama once vowed to fight, has praised him for his fierce determination in waging the global war on terror.

When it comes to national security, the Democratic president is at least as ruthless as his predecessor, and many say that he has even taken a decisive step forward with his drone war. On average, the American military -- of which Obama, the Nobel Peace Prize winner, is the commander in chief -- deploys a missile-bearing drone about once every four days. By way of comparison, under President Bush, a drone was deployed only once every 47 days.

The Americans have already executed more than 2,300 people in this manner, principally in the hunt for Taliban fighters hiding in the region along the Pakistani-Afghan border. Obama might also start using drones against Somali pirates. To date, the victims also include three American citizens, who would normally enjoy special protections guaranteed by the US Constitution. The first was the Islamist preacher Anwar al-Awlaki, born in New Mexico, who was killed in a drone attack in Yemen in Sept. 2011.

From Questional Practice to Accepted Policy

For some time, human rights organizations and US strategists alike have feared that waging war at the touch of a button could become the centerpiece of a new Obama doctrine on warfare. Last Monday, the Obama team swept away any lingering doubts about whether these targeted killings -- and even those of US citizens -- are now official government policy.

A week ago, US Attorney General Eric Holder gave a speech at the Northwestern University School of Law, in Chicago, not far from the campus where a young law professor named Barack Obama once taught students how freedom and security could remain compatible.

Holder made it clear that security is now his top priority. It is not always possible to arrest a terrorist with a US passport while he is planning an attack on the United States, Holder said. "But we must also recognize that there are instances where our government has the clear authority -- and, I would argue, the responsibility -- to defend the United States through the appropriate and lawful use of lethal force," he said.

America's top law enforcement official is not plagued by a guilty conscience. "The Constitution guarantees due process," he coldly added, "not judicial process."

According to Holder, only a few conditions must be met for the United States to lawfully execute a "target" using a drone. The targeted individual must be a "senior operational leader of al-Qaida or associated forces," that is, an "enemy combatant." He must be planning an attack against the United States and be located in a country that has given the United States permission to strike. Finally, capturing the suspect must not be feasible at the time in question.

But when exactly does a threat exists? What sort of evidence is required under internal government procedures? And how are officials supposed to determine whether capture is feasible? Holder left all of these questions unanswered.

A Weapon of Convenience

This legal gray zone becomes all the more apparent the more clearly recognizable America's "drone dependency" -- as the Washington Post calls it -- gets. In 2002, the US military spent about $550 million (€420 million) on drones. Today, that figure is almost $5 billion today -- and likely to continue rising sharply. The US Air Force now trains more pilots for drone missions than for fighter planes. In the fall, it emerged that new drone bases were being set up in Ethiopia and the Seychelles.

Obama's critics believe that the president became enthusiastic about these silent killers due to their convenience -- in other words, because it's faster and less complicated to simply eliminate the enemy than to arrest terrorist leaders and submit them to lengthy trials. The targeted killing of former al-Qaida leader Osama bin Laden killing is a case in point. However, spokesmen for the Obama administration call this kind of speculation "absurd" and insist that capturing terrorists always takes precedence, provided it is feasible.

Still, what makes drones such attractive weapons is beyond dispute: They can strike in the most impassable terrain, and they are more terrifying to terrorist leaders than any elite special forces units because they are practically invisible and almost completely silent. Most of all -- and this is especially important in the war-weary United States -- their use does not endanger the life of a single American soldier.

Do Drones Really Promote US Interests?

Although part of what brought Obama to the White House was massive criticism of the war his predecessor started in Iraq, the current remote-controlled war now enables him to combat terrorism far more decisively than most of his supporters had expected. Indeed, in his first year in office, Obama didn't just send more soldiers to Afghanistan; he also beefed up the contingent of CIA employees in Pakistan.

What's more, the president signed into law the controversial National Defense Authorization Act (NDAA), which permits the US military to seize, arrest and indefinitely detain without trial citizens of any nationality anywhere in the world.

Whether America's remote-controlled killings are truly serving its strategic interests is also a highly controversial issue. In fact, the use of drones is already having unwanted side effects.

For example, such attacks create many new martyrs in countries like Pakistan, warns Jeffrey Smith, the former general counsel of the CIA. According to estimates, the drones kill seven times as many followers as top terrorists.

A poll conducted by the Pew Research Center in May 2011 showed that 97 percent of Pakistanis find the remote-controlled attacks a "bad thing," with 65 percent saying they are "very bad." When asked whether he felt any pangs of conscience over potential innocent victims, Faisal Shahzad, who tried to detonate a bomb in New York's Times Square in May 2010, said: "US drone strikes don't see children, they don't see anybody. They kill women, children; they kill everybody."

Even US Secretary of State Hillary Clinton and former Chairman of the Joint Chiefs of Staff Mike Mullen have privately raised objections against the shower of drone attacks over Pakistan, arguing that the military strikes further weaken the already shaky government of President Asif Ali Zardari. When NATO troops accidentally killed 24 Pakistani soldiers at the Afghan-Pakistani border last year and protests raged against Zardari, the CIA suspended the drone missions at Islamabad's request. But the agency soon managed to get the silent killers back in the skies over Pakistan.

Defining Threats

Peter Singer, a military expert with the Brookings Institution, a Washington-based think tank, sees this new zest for risk-free killing as the drone program's greatest threat. "For the first 200 years of American democracy, engaging in combat and bearing risk -- both personal and political -- went hand in hand. In the age of drones, that is no longer the case," Singer wrote in an opinion piece for the New York Times in Jan. 2012.

Attorney General Holder's speech at Northwestern University also offers indications to support this claim. Civil rights and peace activists are furious that the Obama administration is returning to the doctrine of the global war on terror. Some human rights experts, on the other hand, are concerned about a particularly dubious statement that Holder made.

In his Chicago speech, Holder addressed the question of when the United States could avail itself of its "inherent right of national self-defense" by using lethal force against individuals. Under international law, an "imminent threat" represents the earliest point at which a country has the right to use such force. According to Holder, "the evaluation of whether an individual presents an 'imminent threat' incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States."

Someone who uses this sort of argument, say international law experts, could also make plans to launch a preventive war. Indeed, Holder touches upon subjects that they view with extreme skepticism. In contrast to Holder, they argue that the precautionary consideration of efficacy cannot be used to justify a military strike, whether against individual terrorists or other countries. Likewise, the prevailing view among international law experts is that an attack is only "imminent" when the enemy has raised his weapon, and that an act of violence can only be justified when it is for purposes of self-defense.

Laying the Legal Groundwork for Iran

Given these views, experts fear that Holder's argument in support of the war on terror could also serve as a rationale for possible future military strikes ordered by Obama. Claus Kress, a Cologne-based professor of international law and an internationally renowned expert on the US's stance on the laws of war, believes that it is "not inconceivable" that, in justifying the drone war, Obama's top lawyers may have already set their sights on an altogether different target: Iran.

Legally speaking, a military strike against the mullahs' nuclear program -- which Obama believes is conceivable should it become verifiably clear that there is no other way to stop Iran from building a bomb -- would only be possible with the permission of the United Nations Security Council. But the Russians and the Chinese would probably veto any such consent. As a result, the United States would have to invoke its "inherent" right of self-defense in accordance with Article 51 of the UN Charter. Still, this requires that Iran has essentially raised its weapon against Israel or the United States.

Indeed, in the conventional sense, a planned or even a completed nuclear bomb alone would not qualify as an imminent attack. But the world of experts on the laws or war could also theoretically accept that a preventive strike against Iran's nuclear facilities is the last option for preventing the uncontrolled spread of nuclear weapons and the imminent destruction of Israel.

Perhaps that was what Holder was trying to tell the world with his justification of the war on terror.

Translated from the German by Christopher Sultan

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