- The Washington Times - Monday, June 11, 2018

On the surface, it may sound inconceivable: a foreign nation dispatching an armed drone to assassinate a fugitive or a political dissident on American soil.

But such a scenario may not be as far-fetched as it seems, analysts and legal scholars say.

The rapid proliferation of military drone technology is reaching the point that other nations — and even non-state actors such as Mexican drug cartels — could engage in the kinds of deadly strikes that the U.S. pioneered more than a decade ago and has increased under presidents of both political parties.

“It’s not outside the realm of possibility that someone flies a drone across the border from Mexico and takes someone out,” said Rachel Stohl, managing director at the Stimson Center, a leading Washington think tank.

“I think that’s the reality we’re going to face,” said Ms. Stohl, who specializes in drones and international arms policy. “I think we will see countries more emboldened to cross borders, and maybe they’re taking out a terrorist actor who happens to be on our soil and they say, ‘Look, you’ve done that as well.’ That’s the tension.”

Critics contend that American policy on drone strikes is murky at best and that the U.S., perhaps unintentionally, has laid out a blueprint that the rest of the world could follow — with potentially chaotic results.

Drone expansion

The U.S. led the way in the use of cross-border drone strikes in the years after the Sept. 11, 2001, terrorist attacks. While wildly controversial abroad — and especially reviled in parts of the world because of the civilian deaths that sometimes result — drones are seen within the White House, Pentagon and CIA as invaluable tools to conduct precision strikes against terrorist threats with little to no direct danger for U.S. personnel. Drones can also operate in theaters or sanctuaries that conventional forces could never reach.

But specialists say the near-monopoly America had on drone technology last decade is evaporating and the seemingly lax rules could be used as guiding precedents by Russia, China and other nations that are rapidly advancing their own unmanned systems programs.

“We’re approaching the point where every military will have some unmanned capability,” said Dan Gettinger, co-director of the Center for the Study of the Drone at Bard College.

According to a running tally kept by the Washington-based New America Foundation, 23 countries have acquired or developed military drones. They include allies such as Britain and France and adversaries such as Iran.

In 2016 alone, 10 countries — Switzerland, Sweden, Ukraine, Saudi Arabia, Greece, Turkey, Turkmenistan, Kazakhstan, Switzerland and India — joined the club.

Israel this year shot down an Iranian drone carrying explosives that had penetrated its airspace. Chinese officials say they are making rapid progress on a military program that would allow aircraft pilots to simultaneously control numerous drones — a type of synchronization that could revolutionize the country’s air capabilities. The Russian Defense Ministry boasted this year that it is developing a “long-range unmanned system capable of carrying out unmanned low-altitude supersonic flights.”

While Chinese or Russian drones crossing into U.S. airspace sounds like fiction, specialists say it’s easy to imagine Moscow, for example, finding other lethal uses for its technology.

“Russia and the Chechens? You can go on and on about the proclaimed enemies of the state that could be fair game, absent some clear limitations on the use of this technology,” said Jennifer Daskal, a professor at American University Washington College of Law who studies national security and constitutional law.

Indeed, specialists argue that the George W. Bush and Obama administrations set a de facto standard for what is acceptable worldwide with respect to drone strikes.

“We’re setting a precedent that other nations are going to follow — and we’re not going to like what they do,” said Jeffrey Smith, a lawyer who formerly headed the national security practice at Arnold & Porter LLP.

The U.S. has conducted drone strikes in countries such as Yemen, Somalia and Pakistan, where it doesn’t have a formal military presence. President Bush authorized fewer than 50 such strikes during his eight years in office; President Obama reportedly green-lighted nearly 500.

President Trump is on pace to far exceed that total, the Stimson Center said in a recent comprehensive report on drone strikes. The report said he authorized at least 80 strikes in those countries during his first 12 months in office.

Mr. Trump “is on pace to surpass the strike tempo of both of his predecessors, which perhaps signals a great willingness to use lethal force,” the report concluded.

Law of the sky

While one easily can argue that the use of drones is beneficial to American national security interests, assessing the complex legalities of the strikes is another matter and one that opens the door to potentially problematic interpretations by other countries.

Under both Republican and Democratic administrations, the U.S. has argued that its drone strikes against terrorist targets — al Qaeda, the Islamic State, al-Shabab and other groups — is covered by 2001 and 2002 military use authorizations that arose after the 9/11 attacks. That authorization still applies, officials routinely argue, even when terrorists are targeted outside defined combat zones of Iraq or Afghanistan.

But some specialists say strikes in countries such as Yemen or Somalia, where there is no formal U.S. military presence, could be seen very differently — especially since drones offer an easy way to eliminate targets.

“Critics of U.S. policy and practice argue that U.S. drone strikes to conduct targeted killings outside these areas should be governed not by the law of armed conflict but by the stricter requirements of international human rights law, which permits killings of individuals only to prevent an imminent threat to life,” the Stimson Center said its drone policy review, articulating a common argument that drones are so revolutionary that they should be subject to stricter rules.

Pakistan routinely protests American drone strikes targeting Taliban and other jihadi leaders inside its territory on grounds that they violate its sovereignty and spark resentment in communities.

The Obama administration laid out a series of policy standards that it said would guide its drone program — such as authorizing strikes only when there was certainty a target was present and that no civilians would be killed — but analysts say those standards were essentially self-imposed, were not legally binding and did little to soothe fears that the U.S. largely was acting with impunity.

The Trump administration reportedly has relaxed some of those guidelines, leading to the uptick in the number of strikes during Mr. Trump’s first year in office.

Although it’s difficult to imagine a situation in which foreign drones begin dropping bombs on U.S. soil, specialists say, other nations are rapidly nearing a point where they conduct whatever missions they deem necessary, wherever they see fit, and those actions sometimes could be counter to American interests.

“We can set whatever rules we want, but we need to understand that we are setting a precedent, and other countries are watching very closely what we do,” Peter Lichtenbaum, a lawyer with the Washington law firm Covington & Burling LLP who specializes in defense and national security, said last week. “If we assert a certain prerogative, that will make it difficult for us to argue against other countries asserting those same prerogatives.”

• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.

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