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Drone Strikes and a Strategic Case for Adversarial Due Process

The literature on U.S. government targeted killings abounds with legal arguments in favor of improved oversight over drone strikes through greater executive or judicial due process. I argue that providing adversarial due process, in particular, could be further justified on the strategic ground that it would give the United States an innovative substitute for local community outreach in its global counterinsurgency strategy against Al Qaeda and related organizations.

Experts on counterinsurgency and experts on Al Qaeda alike describe the organization as part of a global Islamist insurgency movement. Based on well-established military doctrine, this should mean that the conflict formerly-known-as the “War on Terror” cannot be won solely by the use of force; that victory will also require gaining the edge in popular legitimacy in the eyes of Al Qaeda’s target audiences. Accordingly, it should not be surprising that experts attributed Al Qaeda’s decline in recent years in key part to its loss of popular support in the Muslim world—a loss that was largely self-inflicted, on account of the organization’s indiscriminate attacks on fellow Muslims.

However, in the wake of the troop drawdown in Afghanistan and the full withdrawal from Iraq, it seems that the Obama administration has developed a different doctrine all of its own, by centering its policy against Al Qaeda and its “associates” on nominally-covert campaigns of targeted killings via drone strikes in countries like Yemen and Pakistan. Unsurprisingly also, this Obama doctrine has been very unpopular in these countries—and in the Muslim world-at-large.

Seemingly as a direct result, Al Qaeda is now resurging in Yemen (where many local tribesmen have joined the organization “not out of any shared sense of ideology, but rather out of a desire to get revenge”), while general “recruitment to violent non-state armed groups” is on the rise in Pakistan (where an estimated 74% now consider the United States an enemy).

At the same time, given this context, it is interesting to note that the U.S. military’s larger drone program in Afghanistan—right across the border from Pakistan—created far less controversy than its counterpart (although still a fair amount). One possible explanation for this contrast is that the program was operated more overtly as an extension of conventional warfare—thereby blending in with more familiar perceptions of the U.S. invasion as a whole. However, an alternative explanation—which I favor—is that the counterproductive effects of drone strikes in Afghanistan were mitigated by the occupation forces’ reliance on a counterinsurgency (i.e., less “conventional”) strategy focused on gaining popular legitimacy through direct outreach to local Afghan communities.

Clearly, the use of predator drones in places like Pakistan and Yemen, outside the context of any particular military occupation, involves fewer opportunities for such direct community outreach. Therefore, it appears that, in order to balance its use of predator drones as part of a global counterinsurgency strategy against Al Qaeda, the United States will need to innovate—which should not be too surprising, given the oft-repeated description of the “War on Terror” as a “new kind of war” requiring the kind of policy flexibility presumably at work in the United States’ unprecedented campaigns of targeted killings outside traditional battlefields or conventional warfare.

One possible approach would be to create a “diplomatic surge” in target countries. However, unfortunately, the failure of Washington’s generous economic assistance to both Yemeni and Pakistani governments to foster any noticeable goodwill toward the United States suggests that classic diplomatic efforts would provide a poor substitute for direct community outreach. (In particular, that failure reflects those governments’ own lack of involvement, legitimacy, and authority in their very important tribal areas.)

In the alternative, I argue that granting members (or local leaders) of drone strike-area communities the opportunity to challenge the justification for drone strikes in courts of law or similar bodies could help meet the need for a better balance of force and outreach in the United States’ counterinsurgency strategy. This would provide the best “ersatz,” so to speak (i.e., the least bad substitute), for direct community outreach under the circumstances described above, by enabling the participation of victims or their representatives through a more or less adversarial process—on a U.S. civil litigation model (as opposed to a criminal prosecution model, which might require either too much in the form of a trial or too little in the form of “death warrants”).

The Due Process Clause of the U.S. Constitution (broadly interpreted in light of the Supreme Court’s decisions in Boumediene v. Bush and Matthews v. Eldridge to apply to U.S. persons and non-U.S. persons alike) would provide a legal framework with sufficient flexibility for even radical legal innovation or experiment.

For example, near one end of the spectrum of possibilities, adversarial due process could be provided by special executive branch “arbitrators” through weakly-binding but otherwise quasi-judicial proceedings held from time to time at offices housed in U.S. embassies in target countries. In this case, the drone “courts,” while loosely guided by U.S. Supreme Court precedent on due process, could even incorporate a limited set of local community standards. Perhaps they could be designed as an improvement on the model of shuras (i.e., customary meetings with local community leaders often held by occupation forces in Afghanistan in accordance with local and Islamic practices, as an imperfect but arguably-indispensable outreach tool and dispute resolution mechanism). If, as one recent study confirms, even ideological extremists tend to become more cooperative in response to symbolic concessions of “respect for [their] sacred values,” then it might be reasonable to suppose that moderate plaintiffs would be especially receptive to these slightly-acculturated drone “courts.”

Near the other end of the spectrum of possibilities, adversarial due process could take the stronger, more formal and conventional shape of binding judicial review provided through U.S. courts. Here, the stronger adversarial format, as well as the opportunity for plaintiffs to travel, could well improve on more traditional community outreach tools by helping better protect the proceedings and their participants from being stigmatized and targeted by extremists for creating a form of political collaboration with their American enemy.

Regardless of the model, the hope would be that plaintiffs and their peers could experience the mere opportunity to voice complaints, as well as other aspects of what typically defines the procedural fairness of courts, as at least the beginning of a remedy. In other words, the goal would be for target populations to come to perceive the process as a credible opportunity for at least attempting to hold the U.S. government directly accountable (in symbolic—if not material—terms) for targeted killings which, ostensibly, Yemeni, Pakistani and other governments lack either the willingness or the ability to remedy.

Ideally—especially in post-hoc cases—Congress could further enhance the remedy by “materializing” it in the form of a compensation scheme for the families of drone victims.

The ultimate result would hopefully be for the target populations to find the prospect of revenge less attractive and, by the same token, to learn to perceive the broader U.S. action against Al Qaeda as a more legitimate enterprise. If drone strikes are here to stay, then cultivating this perception of legitimacy through greater direct accountability might turn out to be crucial to the success of the United States.