Senior officials recently leaked a new Biden administration policy that would put some limits on US drone use. This policy aims to tighten rules on the use of counterterrorism drone strikes by requiring President Joe Biden’s approval to order a terrorist killed. It also heightens the threshold requirements for drone attacks, requiring “near certainty” that the person targeted is a member of a terrorist organization approved for “direct action” and also “near certainty” that no civilians will be injured or killed in the attack.
These limitations are a good step forward — tighter requirements for targeted killings with drones are sorely needed. Drones are a brutal tool in contemporary warfare. Since 9/11, the strategic use of armed drones has been a signature of US foreign policy and military actions, mainly to combat terrorism. In addition to the US’ extensive use of deadly drones internationally including in Afghanistan, Iraq, and Syria, in the Russia-Ukraine war, drones have been key to Russia’s military strategy and resulting deadly destruction in Ukraine. Russia’s armory includes so-called “Kamikaze drones” imported from Iran, which are precision devices that hover over their target and blow up both the target and itself.
But the lack of transparency in the US’ drone policymaking process and its restrictive scope point to the limitations in the current state of US war policy.
TRANSPARENCY TRAVAILS
Biden’s secret policy is only known to the public after a leak of a classified policy memorandum by a senior administration official. This secrecy undermines public participation, as citizens are unable to discuss the merits and drawbacks of the policy.
The policy also was not approved by Congress. For several decades, since the passage of the Authorization for Use of Military Force of 2001, Congress has continued to effectively cede its power to declare war and carry out military action to the President. The new drone policy is another instance of just that. Congress has begun to revisit this decision, attempting to pull back some decision-making authority, but the new drone policy follows the earlier formula of presidential war policy-making without congressional review or input.
Even further, the policy is just that: a policy, not a law. So, as Trump did with the Obama-era policy on drone use, this policy memo is not legally binding, which means it can be ignored and disregarded. All of these deficiencies in transparency and accountability highlight the US’s problematic formation of rules of war.
THE LIMITS OF THE POLICY
Although the policy is an attempt to prioritize civilian lives, it seems to entrench drone warfare by making it more “responsible.” These types of policies — making war more ethical — further fortify the military enterprise.
The limited reach of the policy is also problematic. It also only addresses drone use in counterterrorism circumstances, not in other situations, even though drones are used frequently around the world for many other lethal objectives. For example, the policy makes no mention of legal constraints on drone technology transfers. The US exports lethal drone technology to allies (including the UAE) with few restrictions, and a cohesive drone policy should more strictly regulate these aspects of US drone proliferation and use.
Under the Trump administration, drone sales, which had once been under government purview, were opened up to direct commercial sales. This policy change allows for drones to be sold through the State Department’s Direct Commercial Sales program. This means that private companies in the industry, once licensed to do so, can negotiate export contracts of drone technology without government oversight. Along with this, the Trump policy lowered the threshold for monitoring the end-use of drone sales; instead of conducting obligatory monitoring of the uses of its drone technology once sold, the US government will only possibly (“may”) conduct this monitoring. So not only can more sales occur, but they are less scrutinized once they do happen.
US policy choices don’t only affect our own behavior, but also set global norms and precedents, so the US has a strategic interest in developing or supporting robust legal and policy restraints
One example of drone technology proliferation gone wrong is the Turkish case. Turkey’s military strategy now centers around drones. Turkish drones used in Libya are one of the first cases of completely autonomous drone targeting and attack. The price and effectiveness in combat of these drones have caused them to soar in sales to other militaries and actors. Its foreign policy is essentially based on “drone warfare ecosystems abroad, cementing its alliances through robotic warfare transactions.” These ecosystems will only continue to complicate and increase deadly conflicts and war in the region and beyond.
US policy choices don’t only affect our own behavior, but also set global norms and precedents, so the US has a strategic interest in developing or supporting robust legal and policy restraints. The sale of kamikaze drones by Iran to Russia for its attacks on critical infrastructure in Ukraine continues to increase both human suffering as well as the likelihood of escalation to nuclear war. The geopolitical risk involved in the development, transfer, and use of relatively simple drone technology cannot be overstated.
FLIPPING THE SCRIPT
The Trump-era policy of increasing and deregulating drone sales should be reversed. At a minimum, the Department of State should monitor sales with the ability to halt them if there are concerns about human rights abuses or further transfers beyond the intended recipient. Monitoring should be a requirement, not an optional aspect of the US’s drone transfer legal framework. Not only should the US government be part of such sales but Congress should have a greater say in the transfer of drone technology and other weapons.
To block an arms sale under current regulations, Congress must pass a joint resolution of disapproval, a high bar considering the US’s deeply divided political environment. The current requirement for congressional disapproval must change. “Flipping the script” to require approval both increases transparency and more appropriately acknowledges the gravity of the sale and use of lethal technology.
Although US policy mentions using drones within the limitations of international human rights and humanitarian law, there is still a need for an international treaty on transfers and the use of lethal drone technology to limit proliferation. This treaty should also prohibit the development and use of fully autonomous targeting and strikes. The document would address the novel issues that come with operating lethal weapons absent meaningful human control. Human rights groups argue that “fully autonomous weapons cross the threshold of acceptability and should be banned by a new international treaty.” Although States Parties to the Convention on Conventional Weapons have met numerous times to discuss multilateral solutions to limit and prohibit lethal drone strikes, little progress has been made on official international legal restrictions.
With more transparent and strict legal controls over drone sales and post-transfer usage, the US will set a more desirable precedent for drone use globally. This, in turn, will limit dangerous attacks and the proliferation of this technology, increasing both accountability and safety.
Christy Crouse is a US lawyer and researcher at Dejusticia: Center of Studies on Law, Justice, and Society in Bogotá, Colombia, where she focuses on issues of human rights, constitutional law, and international law.
Nathan Hosler, PhD is the director of the Office of Peacebuilding and Policy for the Church of the Brethren and co-convener of the Interfaith Working Group on Drone Warfare in Washington DC.
