Let's Make Drone Strikes Safe, Legal, and Rare

It would be easy to replace our current killing program with a slightly altered one with sufficient protections for innocent civilians, American citizens, and rule of law.

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Post corrected and updated at bottom.

Plenty of pundits on the left and right still support targeted killing, as do voters, military brass, think-tank fellows, and Congressional majorities. It is nevertheless worth giving the issue another look, because the Obama Administration's apologists seldom acknowledge the strongest arguments against our particular drone policy. Their rhetoric, however effective, depends on a subtle, sometimes unconscious evasion. It's surprisingly easy for an interested observer to be led astray.

Can you spot the problem in the following arguments? Joshua Foust acknowledges that unmanned aerial vehicles sometimes terrorize and kill innocents, but asks, "Is there a better alternative to drone strikes for counterterrorism in northwest Pakistan?" He concludes that, in the short run, there simply isn't.* "The targets of drone strikes in Pakistan sponsor insurgents in the region that kill U.S. soldiers and destabilize the Pakistani state," he writes. "They cannot simply be left alone to continue such violent attacks."

Says David Frum, defending the extrajudicial killing of American citizens, "The practical alternative to drones isn't jury trials. It's leaving U.S. passport carrying terrorists alone unharmed to execute their plans." Max Boot in Commentary agrees that citizens are fair game. "Given the need to continue these drone strikes," he argues, "it would be silly and self-destructive to grant certain al-Qaeda figures immunity just because they happen to have American citizenship."

In a Los Angeles Times op-ed defending drones, international law professor Michael W. Lewis writes that there are "four obvious options" for dealing with Taliban or Al Qaeda in tribal areas of Pakistan: accept their presence, send the Pakistani military to attack them, send in American ground troops, or his preference, which is armed drones. "Any alternative use of force against Taliban or Al Qaeda forces would be likely to cause many more civilian casualties," he concludes.

Implicit in each argument is a false choice. The authors all write here as if America must persist with our drone policy as it is or else forever ground our fleet.* They're arguing against the proposition that there should be no drones at all. None treat seriously the alternative that the vast majority of drone critics advocate: a reformed drone program that operates legally, morally, and prudently. In 2009, President Obama criticized his predecessor for establishing "an ad hoc legal approach for fighting terrorism" that was neither effective nor sustainable -- a framework that "failed to rely on our legal traditions and time-tested institutions, and that failed to use our values as a compass." Going forward, he said, America's war against Al Qaeda must proceed "with an abiding confidence in the rule of law and due process; in checks and balances and accountability."

Most drone critics demand no more than that Obama live up to the standards he articulated. They aren't against keeping armed drones in our arsenal; they're against giving them to the CIA, an opaque intelligence agency that is prone to abusing the power to kill in secret and has no obligation to follow the rules of engagement that constrain the U.S. military.

They aren't against killing Al Qaeda members with Hellfire missiles; they're against a process for identifying Al Qaeda terrorists or "associated forces" that equates being accused with being guilty.

They aren't against killing American citizens who join the enemy; they're against the extrajudicial killing of Americans merely accused of doing so, especially when conducted in secret, far from any battlefield, with no evidence or defense presented, and no mechanism for accountability if a mistake is made.

They aren't against rules permitting certain enemies to be targeted and killed; they're against secret rules written by compromised political appointees and withheld from the crucible of public discourse.

In short, most drone critics aren't opposed to armed, unmanned aerial vehicles in general, but to specific features of the targeted-killing program that make it imprudent and immoral. Precisely because it is so difficult to argue that armed drones are always indefensible, Obama defenders often speak out as if against that straw man. As a result, fewer Americans grapple with the more persuasive argument that Obama's specific drone campaign is indefensible, for a much more legally, morally, and prudentially sound drone program could replace it. That's the tragedy and travesty of this whole picture -- many of the problems with the U.S. drone program could be mitigated through straightforward reforms. And those reforms ought to be imposed by Congress, not adopted in secret by an executive branch that has the prerogative to reverse itself in secret or grant itself exceptions.

There are so many reforms from which to choose.

The U.S. military, not the CIA, could administer all drone strikes. Team Obama could make public and allow debate on the legal theory it uses to determine when drone strikes are lawfully permitted, rather than keeping it from most of Congress and the American people. The law could codify rules that implicitly value the lives of innocent foreigners and aim to avoid blowback could govern when and where drone strikes are permitted. Congress and the judiciary could review lethal strikes to ensure the rules are being followed. The administration could given an honest accounting of civilians killed, in place of Team Obama's indefensible practice of counting all dead males of military age as militants. The government could factor blowback into the cost of every drone strike at the highest levels, rather than permitting the CIA to conduct strikes in Pakistan without presidential approval. Before an American citizen is individually targeted as a member of Al Qaeda, as opposed to being shot at while appearing opposite U.S. troops on a traditional battlefield, he or she could be afforded the due process guaranteed by the Fifth Amendment.

Put simply, drone warfare would be made safe, rare, and legal.

Various critics of Obama's drone campaign have called for reforms like that. Too often, Obama apologists respond by presenting a false choice: Embrace the status quo or let terrorists go. The drone war ought to be suspended immediately; but only until drone strike protocol is no longer imprudent and morally bankrupt. That's the real choice, and if the citizenry would force the issue, the Obama Administration would adopt the required reforms with impressive speed. But even Obama defenders who agree that some of the aforementioned reforms should be implemented refuse to oppose the flawed program in the interim.

That is one reason why sufficient reform hasn't happened.

Yet the need for it is urgent, and not just because innocents are still being killed. As Michael Walzer sagely notes in Dissent, we'll soon be living in a world where almost every nation has drones. If only for that reason, "we should think very carefully before relaxing the targeting rules and turning drones into a weapon like all the others. Their moral and political advantage is their precision, which depends on using them only against individuals whose critical importance we have established and about whom we have learned a great deal."

The Obama Administration would have us believe that it only orders drone strikes reluctantly, to prevent imminent threats against the United States. But the notion that America would have suffered hundreds of terrorist attacks in the last four years but for the thousands of drone strikes Team Obama has launched beggars belief, as do the low-ball civilian-casualty figures given by U.S. officials. The estimates of total people killed is sufficient to see that we've struck lots of foreigners who, if they lived to a ripe old age, would never have succeeded in killing an American citizen.

Obama Administration defenders will object that the rules I would impose on his drone warfare program constrain it too much -- that we'd be endangering our safety and permitting too many terrorists to go free. I'd retort that even if it were true that we would face a slightly increased chance of suffering another terrorist attack, which isn't at all obvious, we'd almost certainly reduce the number of innocent people that we kill and be much better defended against something even more perilous than a terrorist attack: a future president who starts malignantly abusing the extraordinary, secret, unaccountable powers the executive branch is currently permitted. History counsels that we need more insurance against that possibility than we now possess.  

It is perfectly fine to believe that drone strikes should be part of America's arsenal. But American citizens have a moral and patriotic obligation to confront the specific drone policies chosen in our name, and to oppose the Obama Administration's drone campaign pending reforms. Thankfully, as Americans hear more about the issue, they grow less comfortable with the status quo.

Update: Joshua Foust points out on Twitter that elsewhere he has been critical of the drone program and called for reforms to it in articles here and here. Let the record reflect that, generally speaking, Foust endorses reforming the drone program. Here is Foust's piece excerpted at greater length:
Many constituencies in the rest of the country are strongly opposed to the drone campaign. But both terror groups and the Pakistani military kill far more innocent civilians and leave far more physical devastation in their wake -- what is the "least bad" course for policymakers? In the short run, there aren't better choices than drones. The targets of drone strikes in Pakistan sponsor insurgents in the region that kill U.S. soldiers and destabilize the Pakistani state (that is why Pakistani officials demand greater control over targeting). They cannot simply be left alone to continue such violent attacks. And given the Pakistani government's reluctance either to grant the FATA the political inclusion necessary for normal governance or to establish an effective police force (right now it has neither), there is no writ of the state to impose order and establish the rule of law.

Drones represent the choice with the smallest set of drawbacks and adverse consequences. Reports like Living Under Drones highlight the need for both more transparency from the US and Pakistani governments, and for drawing attention to the social backlash against their use in Pakistan. But they do not definitively build a case against drones in general. Without a better alternative, drones are here to stay.
If you read this excerpt in the context of the Foust pieces added here after he alerted me to them, the position that emerges is something like the one I've criticized Andrew Sullivan for having: a clear and admirable recognition that the drone program is very problematic, but an unwillingness to insist that it stop pending reforms. The choice that's never grappled with is, "Stop the drone program until it is changed in whatever ways eliminate the problems I myself acknowledge." There are people who "cannot simply be left alone," so the drones must go on, as if the options, from best to worst, are (a) reformed drone program; (b) existing drone program; (c) no drone program.

Correction: This post originally referred to Joshua Foust as a fellow at the American Security Project, which is no longer the case. The post also originally included an incorrect link in one of its references to Foust's work. As well, it incorrectly characterized part of Foust's position on drone strikes: Per update above, he supports reforming the program. We regret the errors.