Marjorie Cohn in 2011 at ALBA’s Susman Lecture in San Francisco. Photo credit: Richard Bermack

President Barack Obama has escalated the Bush administration’s use of targeted killing with drones and other methods. Drones, which avoid U.S. casualties, are more palatable to the American people than ground invasions such as the wars in Iraq and Afghanistan. Of the 366 U.S. drone attacks that have killed more 3581 people in Pakistan since 2002, 316 were launched by the Obama administration. Of the approximately 4,700 people killed by drones since the 9/11 attacks, less than two percent were high profile Taliban militants. Four were U.S. citizens. Most are civilian casualties.

For some time, people writing and speaking out in independent media as well as anti-war activists have criticized Obama’s drone war. Many were outraged when Jo Becker and Scott Shane reported in the New York Times that Obama maintains a “kill list” from which he chooses who should be assassinated without arrest and trial. There are two categories of possible victims of Obama’s extrajudicial executions. Suspected militants are targeted with “personality strikes.” But Obama also gives the kill order for unidentified people present in an area in which suspicious “patterns of behavior” have been noted. They are called “signature strikes.”

Gradually, military leaders including General Stanley McChrystal, as well as former diplomats and foreign policy experts, began talking about blowback from drones. Now the administration’s use of drones has finally entered the national discourse. But this is not because we are illegally killing people in other countries. It was the leak of a Department of Justice White Paper indicating the administration might kill U. S. citizens on U.S. soil that concerned many Americans and led to Senator Rand Paul’s filibuster and the convening of congressional hearings.

A recent Gallup Poll found that 65 percent of Americans surveyed think the United States should use drone strikes in other countries against suspected terrorists. Forty-one percent favor strikes in other countries against U.S. citizens living abroad. Only 25 percent are amenable to strikes against suspected terrorists living in the United States.  And the number drops to 13 percent who would support strikes in the United States against U.S. citizens. The discrepancy in public opinion between support for drone strikes against U.S. and non-U.S. citizens is largely fueled by racism. Many think of white people when they talk about American citizens.

Jonathan Landay, McClatchy’s national security reporter, recently reported that top-secret documents show the administration is “misleading the public about the scope of who can legitimately be targeted.” Micha Zenko of the Council on Foreign Relations wrote in Foreign Policy that the McClatchy article “plainly demonstrates that the claim repeatedly made by President Obama and his senior aides—that targeted killings are limited only to officials, members, and affiliates of al-Qaida who pose an imminent threat of attack on the US homeland—is false.”

Individuals cannot be killed without due process—charges and a fair hearing—unless they are fighting on the battlefield. Obama has followed the Bush policy of defining the whole world as a battlefield. The Obama administration defines “civilians” so narrowly that it claims a ridiculously low number of civilian casualties. All military-age men killed in a drone strike are considered to be combatants “unless there is explicit intelligence posthumously proving them innocent.”

Drone strikes are counterproductive. In a Pew Research Center poll conducted last year, only 17 percent of Pakistanis favored them against extremist leaders. They breed increased resentment against the United States and lead to the recruitment of more terrorists. “Drones have replaced Guantanamo as the recruiting tool of choice for militants,” Becker and Shane wrote in the Times article. They quoted Faisal Shahzad, who, while pleading guilty to trying to detonate a bomb in Times Square, told the judge, “When the drones hit, they don’t see children.”

Why does Obama engage in these illegal, counter-productive strikes? “This government has decided that instead of detaining members of al-Qaida [at Guantánamo] they are going to kill them,” according to John Bellinger, architect of the Bush administration drone policy. Most of those still incarcerated at Guantanamo have been cleared for release. Others are being held without charges. Most of them are participating in a hunger strike and many are being force-fed. The United Nations Human Rights Commission said that force-feeding amounts to torture and the American Medical Association declared it a violation of medical ethics for doctors to participate in force-feeding of mentally competent adults who refuse food and life-saving treatment. Obama refuses to use his power to transfer detainees out of Guantanamo on a case-by-case basis.

It is time to raise our voices and demand that the Guantanamo detainees be released and the targeted killings stop. Only when we engage in a frank and honest appraisal of how U.S. foreign policy oppresses people in other countries, and we fundamentally change that policy, will we become less vulnerable to terrorism.

Marjorie Cohn is a professor at Thomas Jefferson School of Law. She is working on a book about drones and targeted killing.