These remarks were delivered Wednesday evening at the University of Richmond in a debate on drones. Benjamin Wittes of the Brookings Institution took the opposing side. I'll link his arguments when a recording of the event is available. For now, much of his position can be gleaned from his remarks at Oxford Union.
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What if I told you all that an armed Predator drone is circling above us right now? It isn't. So don't worry. But if an armed drone was there, would it make you feel anxious? If we could hear the buzz of its engine, would that change the tenor of our time together? Now let's imagine that this drone is hovering overhead because there's a terrorist hanging out 100 yards away from this building. We're often told how precise drone strikes are. Obama Administration officials have called them surgical. If a surgery were happening in the building next door I wouldn't be worried about getting nicked by the scalpel. Would you be worried for your safety if you were 100 yards away from drone strike? Say you're laying in bed one night, and in the house next door, a terrorist is laying in his bed.
Would you want a drone strike to take him out?
If next door is too close for comfort, do you think the U.S. military or the CIA should be allowed to carry out drone strikes on terrorists with innocent people next door?
Thankfully, the fear that drones bring to innocent people in places like Afghanistan, Pakistan, and Yemen isn't something that any of us is likely to experience first-hand—especially (if the drones know what's good for them) in the presence of this esteemed scholar from the Brookings Institution. In seriousness, I want to thank Ben Wittes for sharing the stage with me tonight. On so many subjects, we look at the world in very different ways, but I've always appreciated his commitment to participating in public discourse, and I aspire to his command of what he calls lawfare. Thank you, as well, to the organizers of this event, and to everyone who came out to watch.
Soon, I hope debates on the merits of targeted killing are taking place not only at universities, but inside the federal court system. The Obama Administration hopes to avoid that fate. Its lawyers would have us believe that targeted killing with drones is a state secret, or else a so-called political question that isn't properly decided by judges.
In Israel, a state with national-security challenges far greater than ours, the Supreme Court grappled with this same question. Do judges have any role to play in targeted killing? They didn't see it as a close question. They saw their role as determining "the permissible and the forbidden" in combat that implicates "the most basic right of a human being—the right to life." They affirmed that "non-justiciability cannot prevent the examination of that question." I suspect James Madison would find their approach more prudent than what the Obama Administration suggests. The administration would have us believe not only that they're empowered to kill an American in secret, but that after the fact, courts should refrain from judging whether the killing violated the right to life of the target.
Does anyone else think that's a recipe for abuses?
But legal doctrine is not my area of expertise. So I'd like to begin, instead, with a moral question: Is it ever okay for the U.S. to kill people with drones? "This is actually an easy question," Mr. Wittes once said, "since drones clearly enable more discriminating and deliberative targeting than do alternative weapon systems." I want to repeat that. He thinks that once you've decided to use force, drones could be the most moral choice, because they're more deliberative and discriminating.
That's an interesting standard.
It got me thinking: Is it ever okay for the U.S. to use biological weapons? Is that ever the most moral option? They're terrifying. A taboo surrounds them, and treaties prohibit their use.
Imagine a remote al-Qaeda compound. Inside its walls are a few dozen adult bomb makers, their wives, and many scores of children. Explosives are everywhere. A drone strike or a firefight would cause the whole place to blow. But a U.S. scientist has an alternative: a biological agent that, if dispersed over the compound, would target, incapacitate and kill only the adult males. Only the militants—no one else. Would that discriminating bioweapon be the most moral option?
That's a hard question. On one hand, maybe you save a lot of innocent women and children. On the other hand, using a bioweapon would have implications that transcend any one discrete mission. Similarly, using weaponized drones has implications that go far beyond any one discrete strike. Let's think through some of them.
1) For a drone strike to be an option, the United States has to fund a drone industry to build its arsenal, negotiate leases for drone bases in various foreign countries—often non-democracies where the people do not want a drone base and would vote against it if they were afforded rights that we think of as universal. In building this drone fleet and the infrastructure to use it, America inevitably normalizes the notion of weaponized drones all over the globe, and it seeds an industry that is certain to contribute to the weapon's proliferation in the future.
2) In thought experiments, we may be able to separate the questions, "Should force be used?" and, "If so, what is the most ethical weapon available?" But the questions are not typically asked independent of one another. A fleet of drones at the ready significantly lowers the costs of certain lethal operations. As we've seen, it also makes perpetual war possible in a way that it wasn't before. Due to drones, lethal acts occur that wouldn't have happened in a world without drones. And those acts can be carried out with more secrecy than would otherwise be possible.
3) The ability to hover for hours or even days does permit deliberation and discrimination. But hovering also imposes a cost on many thousands of innocents. Drones don't just affect targets, actual and aborted. They affect whole communities. People who live in communities where drones hover overhead report severe anxiety, terrified children, mental health problems, trouble sleeping, paranoia (and after drone strikes occur, pervasive mistrust as people wonder if a local helped call down the Hellfire missile). Communities stop gathering in large numbers to attend prayers or public meetings. They're forced to live in what any of us might consider a dystopia, if we were forced to live there. How would you feel if every night you had to tuck your children into bed as the buzz of drones overhead made them afraid that they'd never wake up again?
As it turns out, asking if there's ever a discrete targeted killing where a drone is the most ethical option tells us very little. Like land mines or bio-weapons or torture to prevent a nuclear holocaust, a drone strike might be the most ethical option in a given situation. But a blanket ban might nevertheless be an ethical imperative. Perhaps so many terrible consequences inevitably flow from building, maintaining, and using a fleet of armed drones that a ban leaves us better off.
The better question is, "Can maintaining a drone-strike program ever be ethical?"
To me, that is a very tough question. Since my time is limited, I want to focus on a related question that is far more urgent: Is America's actual drone-strike program ethical?
That's an easier question. It is not ethical.
What's least defensible is how we respond after killing innocents, presumably by accident. The moral thing would be to acknowledge responsibility; to apologize; to explain how it happened, and what steps are being taken to prevent the same mistake; and to compensate the victims. Our typical response is more like what you'd expect from a hit-and-run driver. We take no responsibility. We offer no explanation. If steps are taken to prevent the same mistake from recurring, they are taken in secret, and without the benefit of independent, disinterested reformers.
Worst of all, innocents with limbs blown off are left to fend for themselves; impoverished families are left to bear the costs of burying their dead and repairing their homes. Survivors, who have no idea why their loved one was killed, can't help but fear they'll be next, and the U.S. does nothing to reassure them.
We just let them live with the fear.
There are also numerous reports that the U.S. carries out so-called double-tap drone strikes, where we fire a missile at someone, then fire another at rescuers who rush to the scene or mourners who attend a funeral. Of course, it could be the case that a rescuer, or a funeral attendee, is also a terrorist. But by carrying out these strikes, we prevent rescuers from rushing to the scene even when innocents are hit.
Finally, there is a question of proportionality. Drone strikes are a response to a real threat. Terrorists are bent on attacking us. At the same time, terrorist attacks are relatively rare. Terrorist attacks perpetrated by people in Yemen, as opposed to homegrown threats like Tim McVeigh or the Tsarnaev brothers, are more rare still. Are all the people, including innocents, that we've killed in, say, Yemen really a proportionate response to the threat that we face from terrorists there?
I'd say that is far from clear.
The Obama Administration says it only takes lethal action when the target poses "an imminent threat of violent attack." It is absurd to suggest the thousands we've killed were all imminent threats. I suspect that the actual standard is hidden because it is indefensible.
If our drone program is immoral, does it at least keep us safer? The Obama Administration says so. But there is nothing resembling hard evidence to suggest that they are right. I trust you're all familiar with the argument that we are creating more terrorists than we are killing. Al-Qaeda certainly uses our drone strikes as a recruiting tool. Faisal Shahzad, who attempted to bomb Times Square, spoke in court about "the drone strikes in Somalia and Yemen and in Pakistan."
At the very least, drone strikes fuel anti-Americanism. And we have reason to worry that President Obama isn't as attuned to blowback from drone strikes as he ought to be. Presidents have a perverse incentive to focus too much on keeping us safe through the end of a four-year term, and too little on keeping us safe in the long run.
In the long run, it isn't just blowback that we ought to worry about. There's a strong case to be made that Americans are being shortsighted about drones themselves. Our military is the strongest in the world. The gap between our Air Force and the next best is huge. In the short term, our near monopoly on drones has given us an even bigger advantage. But these are naturally asymmetric weapons. Cheap. Far easier to build and operate than a fighter jet. Relatively inconspicuous. As they spread to other states and non-state actors, they'll decrease our edge. Perhaps we should've used this window, where we're the undisputed leader on drones, to shape international norms more to our long term advantage.
Instead, we've set precedents that we'd hate to see other countries adopt. As we legitimate drone warfare, we legitimate it for everyone. Does anyone else find that scary?
This shortsightedness raises a larger question that isn't often asked in the drone debate. How competent and trustworthy is America's national-security leadership? That seems like a relevant variable. If the people in charge enjoy a deserved reputation for prudence and moral behavior in waging the War on Terrorism, we might be more inclined to permit them a tool like drones that significantly lowers the cost of killing people. On the other hand, if our national-security bureaucracy often acts imprudently, immorally, or unlawfully, we might be more inclined, as citizens, to deny them this tool, or at least to subject it to strict oversight.
What I see is a national-security state undeserving of our trust. It failed to prevent the September 11 terrorist attacks; misrepresented the threat posed by Iraq; invaded that country with insufficient planning; presided over the abuse of detainees at Abu Ghraib and Guantanamo Bay; initiated an official program of torture; broke the law with warrantless spying on Americans; lost the trove of WikiLeaks documents; then lost the trove of Snowden documents. And after all of these failures of competence and character, we're supposed to trust the CIA and the Pentagon to get good intelligence prior to drone strikes; to follow the law; to act morally in a way that neither stains our national honor nor needlessly creates enemies?
And to do it all in secret?
We're supposed to trust the CIA, with its very recent history of torture and illegally destroying evidence of torture, to run a secret killing program that adequately safeguards innocents? We're supposed to trust a government that threw many innocents and low level offenders into prison at Gitmo, telling us they were all the worst of the worst, to direct drone strikes only at the worst of the worst?
Why would we trust them to do that?
And there is so much particular to our drone strike program that should deepen our mistrust. For example: the Obama Administration's decision to treat targeted killing with drones as a state secret, except when it wanted to brag about a kill; a definition of militants that encompassed all men of military age we happened to kill; the many officials who've lied about the number of innocents killed in drone strikes; the Obama Administration's alarming notion that it is empowered to secretly order the extrajudicial drone killings of American citizens, even if they're not on any battlefield; and the killing of Anwar al-Awlaki's 16-year-old son. In that case, a presumably innocent teenager was killed; though an American citizen, the government has offered no explanation for his death.
I'd like to read you a short passage from the book Dirty Wars by Jeremy Scahill, who has done on the ground reporting on drone strikes in Yemen:
A former senior official in the Obama administration told me that after Abdulrahman’s killing, the president was “surprised and upset and wanted an explanation.” The former official, who worked on the targeted killing program, said that according to intelligence and Special Operations officials, the target of the strike was al-Banna, the Al Qaeda in the Arabian Peninsula propagandist. “We had no idea the kid was there. We were told al-Banna was alone,” the former official told me. Once it became clear that the teenager had been killed, he added, military and intelligence officials asserted, “It was a mistake, a bad mistake.”
However, John Brennan, at the time President Obama’s senior adviser on counterterrorism and homeland security, “suspected that the kid had been killed intentionally and ordered a review. I don’t know what happened with the review.”
So an American kid is killed. The president has no idea why. At best, a drone strike was ordered on faulty intelligence. At worst, the kid was killed deliberately.
Even John Brennan, Obama's chief counterterrorism officer, apparently found it plausible that there was something untoward about the killing. He reportedly conducted a review. But the whole episode remains cloaked in secrecy, as if American national security depends on our not knowing the truth about why a 16-year-old kid was killed. Is there any more clear example of self-serving secrecy? And this story has only garnered attention because an American kid was involved. How many innocent 16-year-old Pakistanis or Yemenis have we killed?
The national-security state has taken steps to make sure that we don't find out. The same people implicated in killing hundreds of innocents, whether negligently or intentionally, are the ones who decide what the public will and won't be told. Again, that's a recipe for corruption. Also objectionable is the Obama Administration's habit of treating various matters as classified, then authorizing leaks so that they can get out their story anonymously, without the degree of accountability that would come from an official putting their name behind it. If something can be discussed in an authorized leak, it can be declassified.
On the subject of transparency, Robert Chesney points out that the Obama Administration has openly explained its belief that the Authorization for Use of Military Force passed after 9/11 authorizes it to kill not just al Qaeda members, but "associated forces." (I wonder, by the way, whether members of Congress understood themselves to be approving many drone strikes in Yemen 11 years later.) Anyway, Chesney goes on to point out that "the administration has resisted public disclosure of which groups come within the scope of that understanding, and has not made clear what factors suffice to make a group an associated force."
He adds that "for that matter, it has not been particularly forthcoming on these issues with Congress." Is this permissible? An administration that isn't even transparent about who the enemy is in a war that it's waging? That seems absurd.
Since Ben Wittes and I agree that America's drone-strike policies ought to be more transparent, I won't dwell on the arguments in favor. But I do want to comment on their implications. Not only do he and I agree that our drone-strike policy isn't insufficiently transparent. Here are some excellent remarks that he wrote after reading two human rights group reports on drone strikes, and that I also believe:
It is impossible for a modestly-moral person to read these reports without something approaching nausea. They are grisly. They involve the deaths of numerous apparently-innocent people. The deaths appear to have taken place at the hands of the United States. The reports involve some substantial new reporting on these incidents. And they thus raise serious questions about the way at least those drone strikes they cover took place: What went wrong, why, and how we can minimize the chances of such disasters in the future?
I'd suggest that, if we don't know what went wrong, or why, or how we can minimize the chances of similar disasters—and if, in general, we worry that our drone strike program isn't transparent enough, which is it say, that it is more vulnerable to abuses than it ought to be—if we believe that, it is our responsibility to call for a moratorium on drone strikes. They should stop at least until they are made as transparent as they ought to be, and until we know what goes wrong, why, and how to fix it. That's what you do when a program induces nausea.
You call for it to stop.
But many who happily concede various flaws in the drone program won't go so far as it call on the Obama Administration to halt it, pending reforms that they agree are necessary.