By Adam Lockyer
What is the process that the Obama White House uses when deciding whether to kill an American citizen abroad? And more broadly, how does the US decide to kill anyone using targeted drones strikes in Afghanistan, Pakistan, Yemen or Somalia?
These are the questions civil libertarian groups and legal experts have been demanding that the White House answer for many years. Yet it wasn't until last week that we saw the first spears of light breaking through the wall of secrecy.
Last week's leaked White House memo sketches the process that the Obama administration uses when it decides whether to kill American citizens. On the one hand, the carefully worded memo offers a valuable insight into this process. On the other, the document raises more questions than it answers. It is not, as Matthew Waxman of Columbia Law School suggests, a "careful and narrow" memo; rather, it is vague and imprecise.
To take one example, the memo reveals that the decision to assassinate an American citizen abroad is made by an "informed, senior official", but it does not disclose how much evidence or the reliability threshold that must be reached to constitute "informed" or how senior the "senior official" must be.
Leaving the legal and ethical dimensions aside for now, perhaps the most enduring and concerning aspect to these disclosures is the standard of international behaviour that it sets.
The US military leads the world in drone and automation technology — its drone fleet is qualitatively and quantitatively superior to any other.
Yet American dominance in the field of unmanned aerial vehicles and other "warbots" is quickly coming to an end. Allies and competitors alike are set to introduce their own drones over the next few years.
Indeed, there are 75 countries around the world that have — or are on the verge of — introducing their own military drones.
Unlike other military technologies, such as stealth-bombers, submarines and aircraft cariers, the financial and technological barriers to acquiring drones are far lower. As such, some analysts suspect that the Chinese stealth drones in the pipeline will be more advanced than even the American models and may potentially be pumped out by the hundreds. Within two years, Beijing plans to build 11 drone bases along its coastline.
Over the next few years, North Korea, Iran, Pakistan, India, Japan, Russia and China will all be flying armed aerial drones. How would the US react to a Chinese drone strike on "militants" in Tibet, or an Indian attack on "terrorists" in Pakistan?
While the US maintains its near monopoly over the use of drones, it has a closing window of opportunity to define their legitimate use.
The rules, procedures and guidelines on how it employs them is likely to become the standard that other nations will be asked to live up to. Unfortunately, however, it is squandering this opportunity by making only short-term calculations.
Washington operates drones over the Horn of Africa, the Arab Peninsula and central Asia. These drones regularly launch extrajudicial missile strikes against any person whom they deem looks sufficiently nasty. In this very young year alone, US drones have killed about 40 people in Pakistan.
Not all these extrajudicial killings are necessarily intrinsically wrong. Indeed, in some instances, they are absolutely necessary. It is the process and conditions under which they occur that must be transparent and institutionalised — first in the US and later held up as the standard for the rest of the world.
Even after the leaked memo, the Americans' decision-making process is cloaked in secrecy. It uses a "disposition matrix", which is a range of undisclosed and classified behaviours and tendencies that individuals can exhibit to raise the suspicion. These undisclosed behaviours then get people on to a "kill list".
Once a strike is carried out, the US classifies all military-aged male victims as combatants. That is, the burden of proof is on the victims to prove they were innocent. The victims, if they survive, have an uphill battle to prove their innocence, as they are never told the charges — remembering that the "disposition matrix" is classified.
In place of the "trust us" approach to drone strikes, it would be prudent for the US to introduce a transparent process that involves both congressional and judicial checks on the executive branch's powers.
This will provide Washington with the moral, and potentially legal, authority to criticise and attempt to limit other countries' use of drones in extrajudicial strikes.
As the world leader in the use of drones, the US has the opportunity to lay down the rules that are going to define 21st-century warfare. It is missing that opportunity.
This article was originally published at The Australian