National Journal writer claims that drone strikes against terrorists are murder, Kenneth Anderson responds -
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The logic of much of the legal opposition to the use of these weapons, beyond the specifics of the legal arguments in specific circumstances, as has been said to me dozens of times by leading lawyers in the human rights community, academics, and activists, is that the more discriminating the weapon and the less it risks American soldiers in its use, the greater the incentive for it to be used, thus raising the threshold of violence. On a couple of occasions, the American military and CIA officers using these weapons have simply been described to me as “cowards” because they hide behind their computer screens and won’t come out to fight, as it were. I’ve responded by noting that the enemy hides behind its women and children, and won’t come out to fight, either. But, very strikingly, the immediate riposte in every conversation of this kind is that the US military has brought this on itself by using weapons that leave the other side with no choice but to use civilian shields.
I admit, all of this reasoning in order to show why coming up with more discriminating weapons that risk American soldiers less, and which puts them under less pressure on account of personal danger to open fire, seems utterly perverse to me. There is also something a little off-putting, to say the least, to have overly clever American law students — in a couple of talks I’ve given on this subject — very far indeed from war or combat, putting on their “rational incentives” thinking caps in order to come up with a view that the optimal structure for welfare maxmizing on the battlefield was for American soldiers to have to expose themselves to fire rather than use drone technology and not put them at risk.
volokh.com
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Wall Street Journal responds -
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The Drone Wars
The Obama Administration has with good reason taken flak for its approach to terrorism since the Christmas Day near-bombing over Detroit. So permit us to laud an antiterror success in the Commander in Chief's first year in office.
Though you won't hear him brag about it, President Obama has embraced and ramped up the use of unmanned aerial vehicles, or drones. As tactic and as a technology, drones are one of the main U.S. advantages that have emerged from this long war. (IEDs are one of the enemy's.) Yet their use isn't without controversy, and it took nerve for the White House to approve some 50 strikes last year, exceeding the total in the last three years of the Bush Administration.
From Pakistan to Yemen, Islamic terrorists now fear the Predator and its cousin, the better-armed Reaper. So do critics on the left in the academy, media and United Nations; they're calling drones an unaccountable tool of "targeted assassination" that inflames anti-American passions and kills civilians. At some point, the President may have to defend the drone campaign on military and legal grounds.
The case is easy. Not even the critics deny its success against terrorists. Able to go where American soldiers can't, the Predator and Reaper have since 9/11 killed more than half of the 20 most wanted al Qaeda suspects, the Uzbek, Yemeni and Pakistani heads of allied groups and hundreds of militants. Most of those hits were in the last four years.
"Very frankly, it's the only game in town in terms of confronting or trying to disrupt the al Qaeda leadership," CIA Director Leon Panetta noted last May. The agency's own troubles with gathering human intelligence were exposed by last week's deadly bombing attack on the CIA station near Khost, Afghanistan.
Critics such as counterinsurgency writers David Kilcullen and Andrew Exum allege that drones have killed hundreds, if not thousands, of civilians. The U.N. Human Rights Council's investigator on extrajudicial executions, Philip Alston, has warned the Administration that the attacks could fall afoul of "international humanitarian law principles."
Civilian casualties are hard to verify, since independent observers often can't access the bombing sites, and estimates vary widely. But Pakistani government as well as independent studies have shown the Taliban claims are wild exaggerations. The civilian toll is relatively low, especially if compared with previous conflicts.
Never before in the history of air warfare have we been able to distinguish as well between combatants and civilians as we can with drones. Even if al Qaeda doesn't issue uniforms, the remote pilots can carefully identify targets, and then use Hellfire missiles that cause far less damage than older bombs or missiles. Smarter weapons like the Predator make for a more moral campaign.
As for Mr. Alston's concerns, the legal case for drones is instructive. President Bush approved their use under his Constitutional authority as Commander in Chief, buttressed by Congress's Authorization for the Use of Military Force against al Qaeda and its affiliates after 9/11. Gerald Ford's executive order that forbids American intelligence from assassinating anyone doesn't apply to enemies in wartime.
International law also allows states to kill their enemies in a conflict, and to operate in "neutral" countries if the hosts allow bombing on their territory. Pakistan and Yemen have both given their permission to the U.S., albeit quietly. Even if they hadn't, the U.S. would be justified in attacking enemy sanctuaries there as a matter of self-defense.
Who gets on the drone approved "kill lists" is decided by a complex interagency process involving the CIA, Pentagon and White House. We hear the U.S. could have taken out the radical cleric Anwar al-Awlaki after his contacts with Fort Hood shooter Major Nidal Hassan came to light in November, missing the chance by not authorizing the strike. Perhaps al-Awlaki's U.S. citizenship gave U.S. officials pause, but after he joined the jihad he became an enemy and his passport irrelevant.
Tellingly, after the attempted bombing over Detroit, the Administration rushed to leak that Yemenis, with unspecified American help, might have killed al-Awlaki in mid-December in a strike on al Qaeda forces. Al-Awlaki, who also was also in contact with the Nigerian bomber on Northwest Flight 253, may have survived.
While this aggressive aerial bombing is commendable against a dangerous enemy, it also reveals the paradox of President Obama's antiterror strategy. On the one hand, he's willing to kill terrorists in the field, but he's unwilling to hold these same terrorists under the rules of war at Guantanamo if we capture them in the field. We can kill them as war fighters, but if they're captured they become common criminals.
Our own view is that either "we are at war," as Mr. Obama said on Thursday, or we're not.
online.wsj.com
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My response -
The idea that we have to put members of our military at direct risk in order for an attack to be "lawful" is perverse and ridiculous. If its reasonable to attack at all (and its definitely reasonable to attack Al Qaeda and the Taliban) than its reasonable to do so with drones, or cruise missiles, or bombers well out of range of their limited AA capability, as long as the particular attack has military utility, and isn't just raining down pointless destruction.
More generally the idea of lawyers analyzing of every step taken or tactic used in a war, "lawfare", is not very practical, and can be a good way to get people killed. |
