The rights of nations

Pakistani villagers sit with Saadullah Wazir, right, from the tribal area of Waziristan, during a 2010 protest near the Parliament in Islamabad, Pakistan. Wazir said he lost his legs and an eye from U. S. drone attack while sitting in his yard
Pakistani villagers sit with Saadullah Wazir, right, from the tribal area of Waziristan, during a 2010 protest near the Parliament in Islamabad, Pakistan. Wazir said he lost his legs and an eye from U. S. drone attack while sitting in his yard

Despite common beliefs,
the U.S. can't simply send drones anywhere it pleases

During the four-day siege of the In Amenas gas field, which culminated in an opaque takeover by the Algerian military that reportedly killed dozens, several pundits and journalists asked why the U.S. military did not send drones or special operations forces to free the hostages or kill the Islamist militants holding them. One CNN anchor asked Mike Rogers, R-Mich., who chairs the House Permanent Select Committee on Intelligence, "I'm curious as to your perceptions whether the U.S. is taking too much of a back seat."

The following day, another CNN anchor seemed puzzled as to why Algeria would only permit the United States to fly unarmed drones over its territory, to which Pentagon correspondent Barbara Starr noted: "The U.S. view is that the Algerians would have to grant permission for U.S. troops, U.S. military force, to go in there."

CNN should not have been surprised. Neither the Bush nor Obama administrations received blanket permission to transit Algerian airspace with surveillance planes or drones; instead, they received authorization only on a case-by-case basis and with advance notice. According to Washington Post journalist Craig Whitlock, the U.S. military relies on a fleet of civilian-looking unarmed aircraft to spy on suspected Islamist groups in North Africa, because they are less conspicuous - and therefore less politically sensitive for host nations - than drones.

Moreover, even if the United States received flyover rights for armed drones, it has been unable to secure a base in southern Europe or northern Africa from which it would be permitted to conduct drone strikes; and presently, U.S. armed drones cannot be launched and recovered from naval platforms.

According to Hollywood movies or television dramas, with its immense intelligence collection and military strike capabilities, the United States can locate, track, and kill anyone in the world. This misperception is continually reinvigorated by the White House's, the CIA's, and the Pentagon's close cooperation with movie and television studios. As of November there were at least 10 movies about the Navy SEALs in production or in theaters, which included so much support from the Pentagon that one film even starred active-duty SEALs.

The Obama administration's lack of a military response in Algeria reflects how sovereign states routinely constrain U.S. intelligence and military activities. Deploying CIA drones or special operations forces requires constant behind-the-scenes diplomacy: with very rare exceptions - like the Bin Laden raid - the U.S. military follows the rules of the world's other 194 sovereign, independent states.

As Algeria is doing presently, the denial or approval of overflight rights is a powerful tool that states can impose on the United States. These include where U.S. air assets can enter and exit another state, what flight path they may take, how high they must fly, what type of planes can be included in the force package, and what sort of missions they can execute. In addition, these constraints include what is called shutter control, or the limits to when and how a transiting aircraft can collect information. For example, U.S. drones that currently fly out of the civilian airfield in Arba Minch, Ethiopia, to Somalia, are restricted in their collection activities over Ethiopia's Ogaden region, where the government has conducted an intermittent counterinsurgency against the Ogaden National Liberation Front.

A famous example of states exercising overflight rights occurred in April 1986, when President Reagan authorized airstrikes against five sets of targets in Libya, in retaliation for its involvement in the bombing of a Berlin disco that killed two American servicemen. French Prime Minister Jacques Chirac and President Francois Mitterrand refused to permit the U.S. F-111 attack aircraft to fly over France because they did not believe the airstrikes would deter future Libyan support for terrorism; Mitterrand told U.S. diplomats that it should not "do a pinprick" against Libya. Similarly, Spanish Prime Minister Filipe Gonzalez refused to authorize access to his country's airspace, but recommended that F-111s simply fly through Spain anyway and his country would "pretend not to see them."

The Reagan administration passed, flying the sortie instead through the Straits of Gibraltar. Though the airstrikes against Libya largely succeeded, the costs, risks, and length of the operation were increased because the French and Spanish governments refrained from supporting the raid.

When the United States does not receive permission to fly over another country's airspace, it runs the risk of pilots or aircraft being killed, captured or destroyed. This includes the May 1960 shoot-down of the U-2 surveillance plane over the Sverdlovsk area of the Soviet Union, or the December 2011 downing of an unarmed RQ-170 Sentinel drone over eastern Iran. In both instances, the United States had been flying overhead without permission for years, having decided that the intelligence collection objectives outweighed the risks of being caught.

Now, the United States assuredly has other tricks in its military bag - advanced capabilities, not yet public, that could be used to bypass the need for overflight rights. But the CIA or the Pentagon could probably use those capabilities to find and attack militants in Mali or elsewhere. Any U.S. operations in North Africa would have to be of the highest priority to justify the potential revelation of cutting-edge weapons.

Those who see a military tactic used with apparent success in one state often ask why it cannot be used to confront a comparable challenge in another state. This tactics-first approach to foreign policy is routinely advocated by pundits and policymakers in Washington. Setting aside the essential question of whether that tactic can achieve the intended political or military objectives, the state that the United States must fly from, or fly over, could simply forbid it. That's their sovereign right.

The White House can choose to act - in Algeria or elsewhere - without a state's permission, and deal with the political consequences and likely reduction in diplomatic and intelligence cooperation if U.S. involvement is exposed. Given that 94 percent of the Earth's land mass is not U.S. territory, the sovereign right to say "no" is one that advocates of using military force must keep in mind.

Micha Zenko is the Douglas Dillon fellow with the Center for Preventive Action at the Council on Foreign Relations.


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