By Isaac Kfir
Professor Michael Lewis of Ohio Northern University, in an interesting post in Opinio Juris, argues that the US could invoke a “Caroline test” to justify drone strikes against targets located within Pakistan. I take issue with Lewis’ conclusion that “[a]ny prevarication on this issue is tantamount to being unwilling to deal with it. If Pakistan is insisting on its sovereign right to deny others access to its territory, it will need to be ready to live up to its sovereign obligation of preventing the Taliban using its territory as a base of operations.”
Lewis’ view is in many ways indicative of the current psychology of the US national security establishment, which is unwilling to entertain the notion that their world conception of taking the right of self-defense globally serves as a cause for further terrorist activity. In other words, this expansive self-defense paradigm, under which the US may attack the sovereign territory of another state, is problematic and dangerous. This paradigm is especially clear to anyone specializing in Pakistan and drone attacks. I submit that what lies beneath this conception of self-defense and sovereign responsibility is a psychological predisposition toward the notion that “the more the national security establishment knows, the more it does not know,” leading it to pursue policies whose legality and effectiveness are greatly challenged. However, when looking at the militants that Lewis refers to, much—though not all—of the threat that they pose is directed toward the Pakistani state and not the US, which explains why there is such general opposition to the program.
Pakistan’s tribal belt is an area where historically the Pakistani government has had little control or authority. The area is geographically difficult to access, but due to decades of under-investment—coupled with cultural and tribal practices that were infused with a heavy dose of Islamization, supported in part by the US—it has become a breeding ground for radicalism. Much of the radicalism is directed not at the US mainland but at the Pakistani government, which many see as corrupt and ineffective. The hostility that the inhabitants of the tribal belt have against the US stems from their objection to the US occupying Afghanistan. Moreover, the area is still inhabited by almost 3 million Afghan refugees that Pakistan has sheltered over three decades.
Thus to expect the Pakistani government, which has battled tribal insurgents and Taliban fighters in the tribal belt for almost a decade with heavy losses, to impose its writ is unrealistic, as no government has managed such a thing. Pakistan is a weak state, with deep structural problems. It is only by addressing those structural issues—such as a weak infrastructure and a military-industrial complex that operates with little if any civilian oversight—will it be possible to challenge Islamism in the tribal belt.
A disturbing aspect of Lewis’ blog post is its failure to appreciate that the drone campaign often lies at the root of radicalism; it serves as an inspiration for anti-American terrorist activity. Faisal Shahzah, the Times Square bomber, declared that he was motivated by revenge. Shahzah, who refused to express remorse when he pleaded guilty, drew a link between US drones that kill children in Afghanistan and Iraq and his willingness to kill children in the US .Thus, Lewis follows the typical US national security establishment raison d’etre that anti-Americanism is a product of a twisted mind, and not a reaction to US wrongdoings.
If we are to embrace Lewis’ view of sovereignty and state obligations, international peace and security dissipates. Under such a conception any state that has information suggesting an imminent threat to its security is perfectly within its right to take action to remove the threat, consequences be damned. Does that mean that Israel has the right to launch attacks against any Hezbollah targets in southern Lebanon, as Hezbollah poses an eminent threat to Israel? What about Saudi Arabia and its attacks against the Houthis of Northern Yemen, which some accept because of the alleged connection between the Houthis and Al Qaeda?
At a time when the world is slowly appreciating the expansive nature of the US national security establishment,which has little if any oversight or transparency, a willingness to engage any potential threat creates major worries. Taking Lewis’ sovereign responsibility—or lack of it—to its extreme, could it mean that if the NSA had acquired information that the Tsarnaev brothers were receiving training in Dagestan, the US would have been within its sovereign rights to attack the training camp because the Russians were opting not to? Conversely, would Mexico be within its right to launch a drone strike against a US target, if it found out through its security establishment that weapons were being smuggled from the US into Mexico and US federal officials were unwilling to stop it?
What has become abundantly clear since 9/11 and the launch of the “Global War on Terror” is that instead of defeating terrorism, we have permitted the creation of a powerful national security establishment whose world view and ability to assess threats and their consequences is severely challenged. Instead of advocating for unregulated sovereign authority, we must demand greater limitation on what institutions of the state can and should do.
 Michael W. Lewis, “Guest Post: Pakistan’s official withdrawal of consent for drone strikes,” Opinio Juris, June 10, 2013. < http://opiniojuris.org/2013/06/10/guest-post-pakistans-official-withdrawal-of-consent-for-drone-strikes/>
 Named after an 1837 attack on the steamboat Caroline by British forces operating in the US, this customary law of war determines that preemptive self-defense by a nation can only be undertaken when the situation that requires it is “instant, overwhelming, and [leaves] no choice of means, and no moment for deliberation.”
 On the issue of drone attacks, the Obama administration has followed a policy of signature and personality strikes. Signature strikes target groups of men believed to be militants associated with terrorist groups, but whose identities aren’t always known.” Personality strikes refers to situations in whichthe target is a known terrorist Adam Entous, Siobhan Gorman, and Julian E. Barnes, “U.S. Tightens Drone Rules,” The Wall Street Journal, November 4, 2011. <http://online.wsj.com/article/SB10001424052970204621904577013982672973836.html>
 See for example, Mary Ellen O’Connell, “Adhering To Law And Values Against Terrorism,” Notre Dame Journal of International & Comparative Law, Vol. 2, No. 2 (2012), pp. 289-304.
 A Wall Street Journal story on US drone use in Pakistan points out that a number of US state and defense department officials argue against the US Central Intelligence Agency (CIA)-led drone campaign, seeing it as counter productive. According to the Wall Street Journal on at least two separate occasions CIA Director Leon Panetta ignored Cameron Munter, the US ambassador to Pakistan objections to planned strike. According to a senior official, the position of the CIA is that “Whenever they got a shot [for a drone attack], they just took it, regardless of what else was happening in the world.” Adam Entous, Siobhan Gorman and Julian E. Barnes, “U.S. Tightens Drone Rules,” The Wall Street Journal, November 4, 2011. <http://online.wsj.com/article/SB10001424052970204621904577013982672973836.html>
 Richard Norton-Taylor, former security editor of The Guardian, noted in 2009 that “MI5 and MI6 officers argue that in the fight against global terrorism, they have no choice but to deal with foreign security and intelligence agencies that have different standards …” Richard Norton-Taylor, “The secret servants,” The Guardian, July 10, 2009. <http://www.guardian.co.uk/uk/2009/jul/11/mi5-interviews-uk-security-terrorism>
 The evidence suggests that many have left the region. Pir Zubair Shah, “My Drone War,” Foreign Policy, No.192, (2012), pp. 56-63.
 See for example, Michael J. Boyle, “The Costs and Consequences of Drone Warfare,” International Affairs, Vol. 89, No. 1 (2013), pp. 1-29.
 Saeed Shah, “Pakistan plans to revoke Afghans’ refugee status could displace 3 million,” The Guardian, July 20, 2012. <http://www.guardian.co.uk/world/2012/jul/20/pakistan-revoke-afghan-refugee-status>
 The Pakistani government has claimed that more than 40,000 Pakistanis have died since Sept. 11, 2001. Since 2008, the armed forces have suffered more than 15,000 casualties. Mudassir Raja, “Pakistani victims: War on terror toll put at 49,000,” The Express Tribune, March 27, 2013. <http://tribune.com.pk/story/527016/pakistani-victims-war-on-terror-toll-put-at-49000/>
 Scott Shifrel, Alison Gendar and Jose Martinez, ‘Remorseless Times Square car bomber Faisal Shahzad warns “We will be attacking the US”’, New York Daily News, 22 June, 2010, <http://www.nydailynews.com/news/crime/remorseless-times-square-car-bomber-faisal-shahzad-warns-attacking-u-s-article-1.181486>
 SC Res. 1701 (2006) building on SC. 425 (1978) requires the Lebanese government to assume control over all Lebanese territory and the disarming of Hezbollah, which poses a threat to Israel.
 Mai Yamani, “Saudi Arabia goes to war?” The Guardian, Nov. 29, 2009. <http://www.guardian.co.uk/commentisfree/2009/nov/23/saudi-arabia-yemen-houthi-war>
 Glenn Greenwald and Ewen MacAskill, “Boundless Informant: the NSA’s secret tool to track global surveillance data,” The Guardian, June 9, 2013. <http://www.guardian.co.uk/world/2013/jun/08/nsa-boundless-informant-global-datamining?INTCMP=SRCH>
 Russell Tice, a former National Security Agency analyst, has for example described the Foreign Intelligence Surveillance Court (FISA), which oversees surveillance against suspected foreign intelligence agents within the US, as “a kangaroo court with a rubber stamp …” Spencer Ackerman, “FISA chief judge defends integrity of court over Verizon records collection,” The Guardian, June 6, 2013. <http://www.guardian.co.uk/world/2013/jun/06/fisa-court-judge-verizon-records-surveillance?INTCMP=SRCH>