In response to:

Obama and Terror: The Hovering Questions from the July 12, 2012 issue

To the Editors:

After quoting the judge in the Richard Reid case, that terrorists are not soldiers, David Cole [“Obama and Terror: The Hovering Questions,” NYR, July 12] could have noted that drones engage in extrajudicial executions, contrary to Articles 6 and 14 of the International Covenant on Civil and Political Rights. Whereas Osama bin Laden had already been indicted in a New York federal court at the time of his killing, victims of drone attacks outside the war theater in Afghanistan have not enjoyed any such judicial notice. The approved method of dealing with suspected terrorists, in accordance with several international instruments, is extradition and criminal trial.

Accordingly, the unanswered “hovering question” is whether drone attacks are themselves acts of terrorism. The Arab Convention for the Suppression of Terrorism of 1998 can indeed be so interpreted. Faisal Shahzad, who evidently thought that drone attacks are terrorist acts, decided to retaliate for a drone attack on his nonterrorist friends in Pakistan by planting a bomb in Times Square in 2010. In a land where revenge killing is customary, non-Taliban attacks on American troops in Afghanistan conceivably have a similar explanation. Nevertheless, in accordance with the Fourth Hague Convention of 1907, the US military diligently compensates families for unintentional destruction of property and loss of life in Afghanistan. Yet there is no record of compensation for drone attacks in Pakistan. Thus, the United States’ use of drones is losing the moral high ground in several respects.

Regarding the nonclosure of Guantánamo, Cole could have noted that congressional restrictions on the relocation of prisoners may amount to a bill of attainder. By dictating administrative rules, the usual prerogative of the executive branch, US legislators have made those detained at Gitmo, in effect, prisoners of Congress. An assertive executive would ignore the restrictions as unconstitutional and close Guantánamo, using some of the ten options prescribed in two of my recent publications.

Michael Haas
Professor of Political Science
California Polytechnic University
Pomona, California

David Cole replies:

Numerous reports reflect, as I noted in my review, that the use of drones is causing substantial resentment, and may be fueling terrorist recruitment. To that end, they are strategically costly—so much so that Dennis Blair has advocated that the US desist from any unilateral drone attacks in Pakistan altogether.

Whether drone attacks violate international law, however, is a much more complicated question than Professor Haas apparently thinks it is. Notice and a hearing prior to shooting an enemy soldier are generally not required in wartime, and there are significant and reasonable disagreements about the scope of the battlefield, and about the extent to which the US can exercise military force against al-Qaeda or the Taliban away from the “hot battlefield” if they are exercising force against us away from the battlefield and it is not feasible to capture their members. I believe those questions have not yet been satisfactorily answered by the Obama administration, because it has insisted on far too much secrecy with respect to the contours of the program. But I would not, as Professor Haas would, indict it without knowing more.

As to Guantánamo, Professor Haas’s bill of attainder theory is creative, but I’m afraid too creative to pass muster in the courts. The Constitution’s Bill of Attainder Clause bars the legislative imposition of punishment on individuals, but the detainees at Guantánamo are being held under a theory of preventive military detention, not punishment. While I am deeply troubled by the continued existence of the detention camp there, and believe President Obama could and should be more assertive in fighting for its closure, there are more persuasive grounds to oppose Congress’s action than the Bill of Attainder Clause. Virtually every senior executive official to confront the issue, including George W. Bush, Condoleezza Rice, and Robert Gates, agrees that we would be better off if the prison camp were closed down, but I’m confident none of them thinks that is so because Congress has imposed a bill of attainder.

As I argued in my essay, the Obama administration deserves both credit and criticism for its antiterror tactics, which are far better than its predecessor’s, while still in need of improvement. But it is important, in fighting for change, that we avoid overstatement that ultimately weakens the case for reform.