March 25, 2013
By James Jay Carafano, Ph.D.
Every generation of war has its signature weapon, from the English long bow that felled French knights at Agincourt to the big bomb that destroyed Nagasaki. Today, in the era of post–9/11 warfare, that weapon is the armed unmanned aerial vehicle—the UAV in military vernacular, but just “drones” to the rest of us.
Drones have certainly made a big impression in Washington. Conservative commentator Charles Krauthammer recently said that is time to rewrite the 2001 Congressional mandate authorizing the use of force against al Qaeda and its friends “with a new code governing drone warfare and the question of where, when and against whom it should be permitted.” Others have gone even further. Two academics, Brad Allenby and Carolyn Mattick, wrote in Slate that we need “new and viable laws of conflict that represent a modern, sentient, and moral response to the human condition known as war.”
The stakes in the drone debate are higher since Rand Paul challenged the White House on the issue of using armed UAVs on domestic targets. The administration could have just have come out and pledged to outright ban the practice. Instead, it got coy and trotted out the attorney general to mumble lawyerly sounding stuff that meant nothing.
Undeterred, Paul launched his carpet-bombing filibuster. C-SPAN covered it from beginning to end and, for the first time ever, tweeters were calling C-SPAN riveting television.
Senate graybeards Lindsey Graham and John McCain began dissing the junior senator from Kentucky. But all this did was further fuel the calls to “Stand with Rand.” No doubt, Paul’s “Mr. Smith Goes to Washington” performance helped him win the straw poll of presidential possibilities the following week at CPAC, the annual conclave of conservatives.
The issue of drones is now deeply embedded in politics as well as in our popular culture. Thus, we expect more, not less, debate over a short list of topics that springs from an admixture of political opportunism, pop politics, and serious business. These are a few questions that must be addressed:
1. Will drones fly over friendly skies?
The short answer is: “You bet.” UAVs are getting more sophisticated and capable all the time. We have not begun to tap all the cost-effective uses of this technology, from scientific research to environmental monitoring, from disaster response to law enforcement. And then there’s a wide array of potential commercial uses from crop dusting to advertising.
For years, the bottleneck in the commercial exploitation of UAVs was the Federal Aviation Administration, which regulates U.S. airspace. But as the FAA figures out how to accommodate the flight of pilotless craft, allowable uses of UAV will become a larger question—one that’s bigger than an FAA problem. The FAA is worried about safe transit. But what the stuff does in the sky will need to be regulated by local, state and federal authorities. There is a lot of room for various kinds of legitimate drone activity. What will legislators permit? Expect to see a lot of proposals—ranging from very proactive and permissive to really restrictive.
2. Will America’s drone wars drone on?
That seems inevitable. The centerpiece of U.S. counterterrorism strategy remains killing the leadership of al Qaeda and its affiliates (at least those who have demonstrated an interest in attacking targets in the West). This strategy will become increasingly difficult to execute. The bad guys are getting better at figuring out how to dodge the drones. They are also moving into areas where the United States doesn’t have the infrastructure and intelligence network necessary to support effective drone operations. That means the U.S. will increasingly find itself expanding its footprint in unsavory places—even as the administration claims it is pulling in the reins of the war on terror. But the administration doesn’t have a plan B. So for now, expect more of the same.
3. Will the UN get a vote?
No. In January, the UN Special Rapporteur announced a 10-month investigation into the U.S. use of drones against militants in Afghanistan, Pakistan, Somalia and Yemen. The UN and the international human-rights community have long opposed Washington’s armed-drone program. The January report was just the latest manifestation.
The U.S. drone program does not violate international law. The Rapporteur knows that, but he just doesn’t much care. His report is a clear case of “lawfare,” where activists clothe political arguments in legal language to pretend they are championing the rule of law rather than just playing politics. The likelihood the UN can do anything on this issue without U.S. cooperation is zero. And the likelihood that the administration will cooperate by abandoning the linchpin of its counterterrorism strategy is—for now—also zero.
4. Will we get new laws of war?
No. The laws of war were written to be agnostic about technology. They do not need to be rewritten when a new capability appears. At most, as in the case of weapons of mass destruction, new regimes might be created to regulate or ban use. But when it comes to drones, there is really nothing exceptional about the technology they employ. Manned weapons systems use the same technologies. Why would you need new rules for one and not the other?
Further, even if there was a reason to rewrite the laws of war, it won’t happen anytime soon. The UN has melted down over trying to agree on a conventional arms treaty. It is hard to believe any kind of consensus of drone war will emerge any time soon.
5. To export or not to export—is that the question?
Yes—and the answer remains open. The United States has significant restrictions on the export of UAVs and related software, technology and services. At the same time, the global demand for these products is growing. If the United States does not start to grab market share, others will. And our competitors may not be nearly as conscientious as to whom they sell to and what oversight mechanisms will be put in place.
A sale of U.S. UAV systems to Italy has been on hold for months. If Washington can’t figure out how to sell drones to a long-standing NATO ally, that does not bode well for future economic growth through exports. It is a mystery how Washington can figure out how to export the F-35, the world’s most advanced fighter plane, but can’t work out a way to let U.S. companies compete for global drone business.
As the debate over drones drones on, these issues will undoubtedly be front and center. How they get resolved will determine the shape of things to come.
-James Jay Carafano is vice president of defense and foreign policy at The Heritage Foundation.
First appeared in The National Interest.
Protect America Initiative of the Leadership for America Campaign
James Jay Carafano, Ph.D.
Vice President, Foreign and Defense Policy Studies, E. W. Richardson Fellow, and Director
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