Obama’s Use of Drones is Not Analogous to Bush’s Torture Program

Last updated on February 13th, 2013 at 10:32 pm

Discussion about the drones continues, with some people falsely claiming that Obama’s use of drones is analogous to Bush’s torture program.  This is categorically false – not only from a legal standpoint on the use of drones vs. the use of torture, but also with respect to transparency and oversight.

As noted previously, while I have some moral concerns, the drone program is legal under our constitution and under international law. This is provided that its application is consistent with the rules of war, which torture is not.  However, some also suggest a similarity between the Bush and Obama Administrations in a question to expand Executive Power.  This, too, is wrong.

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The law on torture, in plain language, is absolute as noted in Wilson R. Huhn’s law review article written in 2008.

One observation succinctly states the difference between Bush’s torture program, and the Obama Administration’s use of drones, under current law (passed after the Bush Administration’s torture program and jurisprudence prior to the Bush Administration’s torture program. (see Huhn’s footnote 49.)

There is no doubt that waterboarding is illegal under the plain language of each of these four statutes.  When it is practiced in other countries, the State Department characterizes waterboarding as “torture.”[46] Waterboarding inflicts “severe pain and suffering” on its victims, both physically and mentally, and therefore it is torture within the meaning of the Torture Act and the War Crimes Act.[47] It inflicts “serious pain and suffering” upon its victims, and it qualifies as “serious physical abuse,” therefore it is “cruel or inhuman treatment” within the meaning of the War Crimes Act.[48] Finally, American courts have ruled that when prisoners in the United States are subjected to waterboarding, it is a violation of the Fifth, Eighth, and Fourteenth Amendments, and therefore it would be a violation of 42 U.S.C. §§ 2000dd and 2000dd-0 prohibiting cruel, inhuman, or degrading treatment.[49]

And Text of footnote 49:

See Wallach, supra note 4, at 502-504 (describing the conviction of Sheriff James Parker, of San Jocinto County, Texas, and three of his deputies, for violating the civil rights of prisoners by subjecting them to waterboarding.  The facts of this case are set forth in U.S. v. Lee, 744 F.2d 1124 (1984)); Morris v. State, 697 S.W.2d 687, 689 (Tex. App. 1985) (describing how water torture was used by San Jocinto County authorities to extract the defendant’s confession); Fisher v. State, 110 So. 361, 363 (Miss. 1926) (reversing the defendant’s conviction because it was obtained by means of the “water cure”).

In other words, torture and specifically waterboarding were illegal before the Bush Administration and after it.  Therefore, waterboarding was illegal for during the entire period in which Bush was President of the United States.

Conversely, there is a legal basis for the Obama Administration to use drones, as I noted previously.  On the specific question of imminence and suggestions that the Obama administration’s interpretation is somehow broader, this too is false as observed by Kenneth Anderson of Lawfare.

Whatever one thinks of this standard – it seems to me correct – it is not a new position for the United States government.  Neither the Obama administration nor the Bush administration before it has created a new doctrine or US interpretation of international law.  (Added:  Kevin Jon Heller points me to a post by Marko Milanovic at EJILTalk, pointing out, among other things, that in the case of state consent, imminence does not come into play.

Aside from the fact that there is a legal basis to use drones and there is not a legal basis to use torture, the Obama Administration’s approach to using the drones is different than Bush.

One particularly important difference lies in the fact that the Obama Administration embraces oversight of executive decisions, while the Bush Administration was of the view that it could circumvent Congress and the Courts – even to the point of reinterpreting the constitution, and previously settled law. In 2006, Jennifer van Bergen observed:

However, Bush’s recent actions make it clear that he interprets the coordinate construction approach extremely aggressively. In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution — even where that violates long-established laws and treaties, counters recent legislation that he has himself signed, or (as shown by recent developments in the Padilla case) involves offering a federal court contradictory justifications for a detention.

In direct contrast, the Obama Administration recognizes the importance of checks and balances, as a general principle, and specifically when it comes to the drone target list.

As noted by Michael Tomasky,  the Senate is looking to establish a special court to review decisions pertaining to drone targets.

At John Brennan’s CIA confirmation hearing last week, which came right after the leak of the controversial Justice Department memo about the targeting of U.S. citizens, Senator Dianne Feinstein said that the Senate was reviewing proposals for special courts to oversee the program. At least that way, this awesome power to determine that a U.S. citizen had forfeited his right to due process by joining an enemy army wouldn’t repose in one person.

On Saturday, The New York Times reported that President Obama was already considering this move – a year ago.

An administration official who spoke of the White House deliberations on the condition of anonymity said President Obama had asked his security and legal advisers a year ago “to see how you could have an independent review” of planned strikes. “That includes possible judicial review.

“People on the national security staff and the legal side took a hard look at it, and the discussions are still going on,” the official said. “There are a lot of complexities. You’d need legislation and probably a new judicial body.”

Granted, this special court has yet to be established, and faces a variety of obstacles. Unlike Bush, Obama doesn’t believe he should be the sole and exclusive arbiter of the constitution, the law, or in this case, who goes on a drone target list. It’s particularly significant when one considers that there are legal parameters under which drones can target enemy forces.

Aside from recognizing a need for checks and balances, this oversight would minimize the potential of human error in identifying who should be on the target list.  Simply put, the Bush Administration attempted to circumvent the law on torture and on top of that, there was no oversight of the Bush Administration’s torture list.  As noted torture is wrong under all circumstances, but for the sake of argument, even if there was some basis to torture someone, the Bush Administration failed to established any means of oversight.

The fact that there is a diversity of  stated opinions among Democrats illustrates that different points of view are considered.  During the Bush Administration, if there was a dissenting point of view among Republicans, we didn’t know about it.

The most compelling critique of the drone program is the risk it places on innocents.  One of the most difficult realities of the rules of war lies in the fact that there are circumstances that allow for killing of innocents who were in the wrong place at the wrong time. This is explained under by the International Committee of the Red Cross (ICRC) commentary on the principle of proportionality (one of the four fundamentals that must be met under the White Paper):

The principle of proportionality arises when the military operation is directed toward combatants and military objectives, or against civilians at such time as they are taking a direct part in hostilities, yet civilians are also harmed. The rule is that the harm to innocent civilians caused by collateral damage during combat operations must be proportionate (see DINSTEIN, at p. 119). Civilians might be harmed due to their presence inside of a military target, such as civilians working in an army base; civilians might be harmed when they live or work in, or pass by, military targets; at times, due to a mistake, civilians are harmed even if they are far from military targets; at times civilians are forced to serve as “human shields” from attack upon a military target, and they are harmed as a result. In all those situations, and in other similar ones, the rule is that the harm to the innocent civilians must fulfill, inter alia, the requirements of the principle of proportionality.

The prospect of a court overseeing decisions about drone targets addresses concerns about oversight and offers an additional mechanism to assure that legal criteria is met. However, judicial review remains something that we’re talking about.

While many dispute this figure, civilian casualties in drone strikes are clearly fewer than if massive bombs were used instead.

Image: Thorninpaw

Adalia Woodbury

Former contributor.