Is the use of drones by the United States setting precedents that other nations can follow? This is an important question because how states behave and the precedents they set are more than just moral or academic questions, they form part of international law, especially in the area of international humanitarian law. Thus, it was significant that in April of this year, President Obama's counterterrorism adviser John Brennan stated (emphasis mine):
The United States is the first nation to regularly conduct strikes using remotely piloted aircraft in an armed conflict. Other nations also possess this technology, and any more nations are seeking it, and more will succeed in acquiring it. President Obama and those of us on his national security team are very mindful that as our nation uses this technology, we are establishing precedents that other nations may follow, and not all of those nations may -- and not all of them will be nations that share our interests or the premium we put on protecting human life, including innocent civilians.
In a similar vein, in 2011 PBS ran a feature "Does U.S. Drone Use Set a New Precedent for War?" while others have recently criticized the drone campaign for "creating a dangerous global precedent, which will do nothing for US security."
In light of the mixed opinions regarding America's use of drones, Jake Tapper of ABC News decided to ask the White House how America would respond if China or Russia used drones in the same manner as the United States, offering the same justifications that America has used. Below are some excerpts from the exchange (note I've cut out some of the back and forth as Carney initially tries to dodge the question, and repeatedly interrupts Tapper. The snips are the interruptions or non-responsive answers. What I've presented below are Tapper's questions without interruptions, and the White House response. If you are concerned that I've chopped it up in a misleading way feel free to read the whole transcript the bold emphases are mine.):
TAPPER: It’s not difficult to foresee a world in which the United States is not the only country with this kind of technology. Is the administration at all concerned about the precedent being set in terms of secrecy, in terms of operating military craft in other sovereign nations and what we might see as a result when China or Russia get their hands on drones?
***SNIP***
TAPPER: OK, not relating this question to the death of al-Libi, the United States has this technology. President Obama has said that the administration should be more transparent about it. Is there not any concern that the administration has that there is a precedent being set? We have just heard Assad this week blame the massacre that took place in Houla on terrorists. Any country
***SNIP***
TAPPER: But that’s my point. And countries claim terrorism as a justification for their actions all the time. Even positing that the United States, under any president, only acts righteously every time, is there not any concern that a precedent is being set either for some future president and/or any other country?
***SNIP***
TAPPER: I was just wondering what the — where the moral foundation comes from, the United States objects in the future to an action being taken by China or Russia along these same lines?
CARNEY: Well, I reject the comparison. But I would simply say that — as I said just now, that this president, this administration, takes very seriously the decisions that are involved in the effort to disrupt, dismantle and defeat al Qaeda. But this president is absolutely committed to that objective. As commander in chief, as president, protection of the United States, protection of American citizens, protection of our allies and our interests, are a high priority, the highest. And that will be the case as long as he’s in office.
Okay, so after an extensive back and forth between Tapper and Carney directed at whether the United States is concerned about the precedent being set by America's drone policy, can you tell what the U.S. position is? I can't. Is it the position of the White House that if Russia and China took similar actions, those actions would not be comparable to what America does? I'm not so sure that's what Carney is saying, and this lack of clarity strikes me as a problem. Is it the position of the United States that Russia and China cannot rely on the precedents being set by the United States? That's a nice form of American exceptionalism (which I like), but what is it grounded in as a matter of law?
Carney states that "this president...takes very seriously the decisions that are involved in the effort to disrupt, dismantle and defeat al Qaeda." The short version is: the President takes seriously efforts to defeat America's enemies. But don't the Russians or Chinese take seriously the decisions involved in their efforts to defeat their enemies?
The United States held Uighurs in Guantanamo and was unwilling or unable to send them back to China despite the fact that the Chinese government considered the Uighurs terrorists. Could China, invoking the American unwilling or unable test send a drone to bomb the camp holding Uighurs in Guantanamo? (For a discussion of the "unwilling or unable test" see here and here). If the Chinese said "Well, we are very serious in our decision making process." Would that satisfy anyone? I'm not arguing that it would, but it's a fair question to ask and it's one that deserves an answer.
If the U.S. is setting precedents as Brennan suggests, then the logical end point of those precedents is worthy of analysis. Or is it the position of the White House that, contrary to Brennan's statements, the United States is not setting precedents? In short, what exactly is the U.S. position on the precedential effect of the U.S. drone policy?
Gregory S. McNeal is a professor who specializes in law and public policy. You can follow him on Twitter @GregoryMcNeal.
