Can We Wage a Just Drone War?
The New York Times devoted considerable space last Sunday to a story called, "The Moral Case for Drones," which argued that lethal "offer marked moral advantages over almost any tool of warfare." We reached out to a political scientist Daniel R. Brunstetter, whom the piece quoted as a critic of the nation's drone policies, to offer a full rebuttal.
Drones have been an increasingly important fixture in foreign affairs, but not without controversy. Military and intelligence personnel, robotics experts, and some academic have argued they remove the risk to U.S. personnel. Moreover, their ability to undertake limited, pinprick, covert strikes significantly reduces civilian casualties compared to other weapons platforms, as well as the costs and risks of waging a larger war to curtail the terrorist threat, thus leading to what the Obama administration sees as a more humane type of war. Among the critics, some legal experts challenge the legality of CIA-controlled drones to undertake targeted killings across sovereign borders, while journalists and human rights organizations have brought to light concerns about the efficacy of CIA-drones in avoiding civilian casualties and the impact purported civilian deaths have on fueling terrorist recruitment. Finally, other scholars, myself included, have begun to examine the extent to which the lack of transparent decision making processes related to the never-so-secret CIA-led drone operations might lead to unjust uses of force or undermine democracy.
In response to this public debate, the Assistant to the President for Homeland Security and Counterterrorism, John Brennan, gave a speech in April 2012 officially recognizing, for the first time, the administration's use of drones to undertake targeted killings. Brennan defended them as legal under domestic and international law, ethical according to the standards of war, wise because they limit risk to U.S. personnel and foreign civilians, and subject to a complex and thorough review process. He identifies the advantages drones as helping the U.S. to satisfy the "principle of humanity", which "requires us to use weapons that will not inflict unnecessary suffering." The problem is that accepting drones as a default strategy to be used almost anywhere relegates other alternative to the backburner, and in turn, may undermine the prospects for a just peace in the long run. Indeed, Brennan's speech has done little to calm the waters, and the controversy surrounding drones remains rife.
Even though the threat posed by Al Qaeda must be recognized, as must the truth that U.S. leaders and officials face difficult dilemmas when thinking about whether to employ drones (or any use of force), important concerns remain regarding the standards described by Brennan. Notwithstanding possible objections that drones are, in fact, legal and wise, I want to focus here on the ethical and procedural justifications outlined in Brennan's speech, and raise two key questions: Are lethal drone strikes a last resort, that is to say, have all feasible alternatives really been exhausted? Can the use of drones lead to a lasting and just peace?
Working through the answers highlights serious discrepancies regarding the Obama administrations' use of drones and the justifications laid out in Brennan's speech, which is cause for serious concern. My fear is that the Obama administration has become so seduced by the advantages of drones - to keep U.S. soldiers out of harm's way, to limit (but not eliminate) non-combatant casualties, to deny Al-Qaeda safe havens - such that, de facto, the administration now acts as if the threshold of last resort no longer applies to drone strikes. The current drone policy thus challenges the notion of 'just war' President Obama outlined in his 2009 Nobel Prize Speech.
Obama, the Bush Doctrine, and the Notion of 'Last Resort'
Drones are not simply a moral issue. Like debating the legitimacy of air strikes, ground invasion or cruise missile strikes, deliberating on the use of drones is a use of force question. To the extent that their use is supposed to follow the moral standards of war, the first question we have to ask ourselves is: under what conditions is their lethal use legitimate? To gain purchase on the ethical dilemmas posed by drones, one needs, first, to know the moral and historical context during which the use the drones emerged as the weapon of choice of President Obama. This is linked to a partial transition away from the Bush Doctrine.
Early in his presidential campaign in 2008, Obama stated he wanted to repudiate the "mind-set that got us into [the Iraq] war in the first place." That mind-set included Bush's willingness to snub allies, such as France and Germany, and undertake a pre-emptive war, or what is sometimes now distinguished as preventive war, against Iraq in the name of self-defence. Obama's rhetoric thus sounded a more cautious tone that emphasized the importance of last resort and multilateralism.
In his Nobel Peace Prize acceptance speech in 2009, Obama referenced the importance of the just war tradition in guiding the use of force: "And over time, as codes of law sought to control violence within groups, so did philosophers and clerics and statesmen seek to regulate the destructive power of war. The concept of a 'just war' emerged, suggesting that war is justified only when certain conditions were met: if it is waged as a last resort and in self-defense; if the force used is proportional; and if, whenever possible, civilians are spared from violence." The 2010 National Security Strategy - the document that outlines the foreign policy threats facing the U.S. and how the administration plans to deal with them - echoes this cautious war philosophy. The language of pre-emptive war that predominated Bush's national Security Strategy of 2002 and 2006 was removed, and a more cautious language that echoed the notion of last resort was employed: "While the use of force is sometimes necessary, we will exhaust other options before war whenever we can, and carefully weigh the costs and risks of inaction." The document goes on to emphasize the importance of using force in ways that "reflects our values and strengthens our legitimacy" and stresses the need for "broad international support."
The notion of last resort is important here because it suggests that Obama sees the use of force as something that ought to be avoided, if possible. This means that force should not be used unless a threat is imminent, and even in cases in which it is, all reasonable means of forestalling the threat should be tried first.
In some respects, Obama has towed the line. The Libya campaign was a multilateral effort aimed, at least initially, at protecting civilians from imminent threat of slaughter. When dealing with the looming threat of Iran, Obama has emphasized diplomatic measures designed to isolate the regime. Finally, he has shown restraint by not rushing to war to stop the bloodshed in Syria because of a lack of international support. When it comes to large-scale force, Obama has, it seems, turned the page from the Bush Doctrine.
But this does not mean he has completely rejected the idea that the U.S. could 'go it alone' and act pre-emptively. As the National Security Strategy unequivocally exclaims: "The United States must reserve the right to act unilaterally if necessary to defend our nation and our interests, yet we will also seek to adhere to the standards that govern the use of force." This leads us to the dilemmas posed by drones.
In using drones, Obama continues to act on the Memorandum of Notification, signed in the weeks following 9/11 by President Bush that gave the CIA the right to kill members of Al-Qaeda in anticipatory self-defense virtually anywhere in the world. Obama has continued the war on Al-Qaeda, using drones to relentlessly pursue its members by denying them safe haven and killing them with targeted strikes, some of which have killed civilians. While the administration claims important successes in decimating Al-Qaeda, skeptics point to the link between purported civilian casualties and terrorist recruitment, as well as the growing presence of potentially affiliated branches in Africa and Yemen, to suggest that the war against extremism is far from being won by drones. The cause of this criticism is the impression that the Obama administration is not living up to its own values. From the Brennan speech to the details of the decision making processes employed by the Obama administration recently outlined in the press,
the "standards" used to govern the use of drones are not adequately defined, but rather, overly vague and porous.
The Anticipatory Drone Strike Doctrine
The Obama administration may have departed from the highly controversial anticipatory war doctrine of the Bush era; however, it has replaced this doctrine with an equally problematic, albeit less costly and less destructive, anticipatory drone strike doctrine. What is worrisome in this shift is the recognition of a dangerous precedent being set: namely that low levels of force, such as drone strikes, bypass the bureaucratic hurdles that need to be navigated when seeking the right to wage war, making them very easy, perhaps too easy, to justify. Even in cases where it is not clear whether the threat is actually imminent. This builds from the assumption that because we are waging a just war against Al-Qaeda, it must be just to expand the war in any direction we see fit. But the war against Al-Qaeda is not a conventional war in which both sides will fight, kill, and then come together in the end to make some sort of peace. It is a struggle to defeat an ideology, meaning every action - especially including drone strikes - which could potentially fuel this ideology, needs to be carefully considered.
One might ask: where are the principles of the just war tradition to help in guiding Obama's use of drones? Critics will be quick to point out that just war principles have, in the past, been misused and manipulated to provide statesmen the ability to adapt the criteria to justify almost any use of force to pursue underlying state interests. At times, this has been true. In the case of drones, I think Obama has over-emphasized the ability of drones to better satisfy the principles of proportionality and distinction, both highlighted in Brennan's speech, to the point of overlooking the essential question: is it just to use them in ever-expanding ways against Al Qaeda cells in Pakistan and against affiliate organizations in other countries without official consent of the local governments? What is missing is for the Obama administration to recognize that drones, as they are currently used in anticipatory attacks against Al-Qaeda and similar organizations, run counter to the just war standards privileging the notion of last resort embraced in Obama's rhetoric and in official documents.
My main concern is better framed as a question: Are drone strikes against Al Qaeda and its affiliates a measure of last resort? One could make the argument that, in fighting terrorism, the threshold of last resort may arrive prior to the point of imminence. This means that the use of anticipatory force may be justified even if the threat of an attack is not right about to happen, but is justified simply because terrorists are terrorists, and pose a threat by their very existence. Brennan captures the muddiness of this idea in his recent speech: "We conduct targeted strikes because they are necessary to mitigate an actual ongoing threat, to stop plots, prevent future attacks, and to save American lives." The notion of imminence is diluted in the all-encompassing aura of threat, to the extent that one could strike terrorists, or suspected terrorists, anytime and anywhere. Signature strikes, as well as reports that the administration has been widening the target list to include low-level members of Al-Qaeda, are poignant examples.
All this suggests that when it comes to fighting Al-Qaeda and other like-minded organizations, the threshold of last resort has long ago been crossed, and that some application of force is seen as necessary to quell the threat. But what does necessity mean in relation to a drone strike? What constitutes an imminent threat? Are all active terrorists, assuming we can correctly identify them, a sufficient threat legitimizing lethal drone strikes? Could other non-lethal tactics, such as arresting terrorists, freezing assets, and working with foreign partners to isolate and diminish their influence, be employed instead?
The Impossibility of Peace through Drone Warfare
Before I answer these questions, which I will try to do in guise of a conclusion, let me delineate the risks of eliding the notion of last resort and allowing drone strikes to be the default tactic. First, while the use of drones enhances the U.S. capacity to act on the just cause of fighting Al Qaeda more proportionately and discriminately, bypassing the criterion of last resort may lead to the propensity to do the opposite. The ramification is a greater chance of collateral damage. No matter how good drone strikes are at limiting civilian deaths, inevitably some civilians will die. While all life is sacred, it takes only one civilian death to fuel negative perceptions of the U.S. in some parts of the world and all but guarantee a steady flow of terrorist recruits. Minimizing the chances of such a scenario unfolding is why the notion of last resort is so important when contemplating drone strikes.
Second, the current drone strategy does not provide a clear picture of the post-war-against-Al-Qaeda era, described in the 2010 National Security Strategy as a "just and sustainable international order." Drones, which were the worst kept secret at the time, are not even mentioned. And Brennan's speech does little to clarify the ultimate goal, except to imply that drones are part of the process to help end the war against Al-Qaeda as quickly as possible. With drones as the default tactic, Obama may succeed at eliminating experienced terrorist leaders and keeping other members on the run, but it seems unlikely that this will eradicate Al-Qaeda altogether or marginalize the influence of their ideology. Is it enough to keep them on the run? What happens if Pakistan or Yemen were to take a more forceful, or even military, stance against U.S. drones? What will happen when the U.S. pulls out of Afghanistan, where bases used to launch drones into Pakistan are located?
In short, there is no clear end game of the drone campaign against Al-Qaeda, but rather, an endless cycle of perceived threat, drone strikes, inevitable collateral damage, and mutual animosity. The successes lauded by Brennan in his speech may be but a Pyrrhic victory. By their very nature, drones remove the human element because they are operated from far away and all but eliminate any positive contact with local populations. This may greatly diminish the risk to U.S. personnel, but it also makes making peace almost impossible. If drones are to be effective, they need to be part of a clearly defined strategy where non-lethal measures are the priority, and drone strikes are a last resort. Just because they are easy to use and very effective at killing does not mean they should be used in lieu of other options.
If these are the risks, what can be done instead? The 2011 National Strategy for Counter-Terrorism, in which drones, not surprisingly, do not feature, points to several options: stepping up intelligence gathering activities, freezing terrorists assets, creating strategic partnerships with the governments of other countries, pursuing terrorists with local authorities to arrest them and gain valuable intelligence, isolating terrorists to remote areas where their movements can be more easily tracked, and marginalizing Al Qaeda's ideology to the point of irrelevance. The document also states that the U.S. "must pursue the ultimate defeat of al-Qa'ida and its affiliates without acting in a way that undermines our ability to discredit its ideology." Unfortunately, the current drone-first strategy does not accomplish this goal.
But what if these strategies were privileged, and did not succeed? When is the threshold of last resort crossed, making a drone strike legitimate? To answer this question, one has to come to a clear notion of what last resort means for drone strikes. It is not enough to say, as Brennan says, that targets must have "definite military value," which is too vague to be meaningful. Nor is it adequate to retort, as Brennan does, that kinetic strikes are used only when capture is not feasible or when other options put U.S. lives in danger. Framing it this way makes other options, de facto, seem unreasonable, leaving drones the only option left on the table, except in very exceptional cases, such as the Bin Laden operation. Brennan admits as much when saying that that capture is exceedingly rare because terrorists have become so isolated that capture missions are too risky. Yet, one should not paint a picture of the war against Al-Qaeda as based on a capture/kill dichotomy. This is a short-term vision that ignores the long-term costs when drones inevitably kill civilians, downplaying the potential efficacy on the non-violent methods described above.
The threshold of last resort is crossed when a threat is imminent, and other mechanisms have failed to prevent it from being actualized. What does imminent mean? This is a tough question in an age of WMDs and terrorist attacks. It is a judgment call. But there needs to be credible evidence that something bad that will kill a lot of innocent people is really about to happen, not just a hunch or a suspicion. Determining imminence requires getting better intelligence, which, somewhat paradoxically for those who think drones remove all risk to U.S. personnel, will put some people at great risk. This may not be the easy way, but it is the just way that reflects our values as Americans.
Limiting drone strikes to instances of imminent threat will lessen their frequency, giving time for alternative mechanism to work. The alternative is that each unnecessary drone strike will potentially undermine the effectiveness of non-violent mechanisms. Of course, it is easy for me to be critical in the ivory tower of academia, insofar as I do not have to make the tough decisions statesmen defending our national security make on a daily basis. But it is also too easy for these very statesmen to hide behind the fog of ambiguity that shrouds the current use of drones. Brennan's speech is a step in the right direction, but more precision is needed. Obama referenced the just war tradition as his moral compass at the dawn of his presidency, but he seems to have lost his way. I suggest he return to the core principles he cited in is Nobel Prize Speech. This would lead him to think seriously about how the notion of last resort applies to drone strikes. To this end, a new National Security Strategy that openly and justly takes into account drones - the dilemmas they pose, the goals they seek to obtain, the positive and negative consequences of their use, and how they are integrated with other non-violent methods - needs to be drafted. This, at least, would give substance, for better or worse, to Brennan's concluding remarks that "in the conduct of war, America must be the standard bearer."