What's Wrong With Drones?

By Mike Dorf

Yesterday's NY Times carried a story on how targeted killings--many but not all accomplished via drone strikes--have become the tactic of choice for the Obama Administration in its fight against terrorism suspects.  In the course of describing the policy, reporter Scott Shane notes that the targeted killing policy is popular with Americans despite the fact that it has been criticized from both the right and the left.  He writes:
Some Republicans in Congress accuse Mr. Obama of adopting a de facto kill preference because he shut down the C.I.A.’s overseas prisons and does not want to send more detainees to Guantánamo Bay, Cuba. Human rights advocates argue that some drone strikes have amounted to extrajudicial killings, the execution without trial of people suspected of being militants whose identities American officials often do not know and who sometimes pose little threat to the United States.
One does indeed hear those critiques, but not only those critiques.  Here I want to say a few words about the foregoing objections and a number of other objections.  I will conclude with the observation that drone strikes are taking on a symbolic value that goes beyond the particulars of the objections.

Let's begin by unpacking the right and left critiques quoted above.  The human rights critique is easy enough to understand.  No doubt some people who believe strongly in human rights are simply pacifists and so would be against any kind of killing policy, but that is not the critique described above.  Instead, the argument is that when fighting non-state actors who do not clearly belong to any organized fighting force, states should use the crime paradigm rather than the war paradigm, to avoid killing people who turn out to be noncombatants.  The Obama Administration itself has accepted this idea, at least presumptively.  Thus, the Times story quotes John Brennan echoing the Administration's white paper in arguing that targeted killings are only attempted when capture is not feasible.  But the human rights community generally thinks that the Administration has too permissive a standard for engaging in targeted killings.

The critique from the right is partly an effort to rehabilitate Bush-era detention policies by arguing that they were more respectful of human rights than the Obama policy, as I discussed in a Verdict column last month. But at its core it rests on a kind of contradiction.  On the one hand, Bush Admin veterans (like John Yoo) and their fellow travelers criticize the Administration for applying a crime rather than a war paradigm.  It's dangerous and unnecessary, they say, to consider due process rights of enemy combatants, because that's a law enforcement approach. And therefore, they say, the Bush-era detention policies should never have been subject to judicial supervision.  Yet if this is the argument, then they should not be criticizing the Obama Administration for killing rather than capturing terrorism suspects, because (as my colleague Jens Ohlin argues), in war there is no general duty to capture.  Therefore, perhaps the best way to understand the critique from the right is not as a coherent program but as an accusation of hypocrisy against those civil libertarians who criticized the Bush policy but don't criticize the Obama policy.  There are some such folks, but in fact many civil libertarians/human rights advocates have been troubled by the Obama policy too, so the hypocrisy charge has a limited target.

So much for the criticisms described in the Times story.  Let's now consider a few more.

The Sci-Fi Worry.  Drones are a new technology that will spread from the U.S. to the fighting forces of other countries and are already spreading to domestic use.  They will also become much smaller.  People understandably worry about bug-sized North Korean drones delivering biological weapons or NSA surveillance drones creating a panopticon of a state.  These are scary prospects.

The Stakes of War Worry.  Some people worry that by creating aysmmetric risks, drones and other military technology that permit warfare to be carried out from a distance reduce the inhibition against killing in two ways: The actual "pilots" operating the drones (from thousands of miles away) don't feel like they're engaged in real battle; and the public is even further disengaged, as they do not feel the costs of war.  Accordingly, in this view, drones and related technology make war safer for heavily armed powers and thus more likely to occur.  (See, for example, P.W. Singer's Wired for War for the full, albeit breezy, argument). 

The Libertarian Critique.  Closely related to the human-rights critique, this view--which was most famously given voice by Sen. Rand Paul during his old-timey filibuster of the Brennan confirmation--focuses especially on U.S. citizens.  To his credit, Sen. Paul did also talk about harm to foreigners, but he got attention because his questions highlighted the fact that the Administration's rationale for drones doesn't necessarily stop at the border, notwithstanding Attorney General Eric Holder's eventual statement that the Administration does not have the authority to engage in targeted killings of Americans on U.S. soil.  Even then, the Holder statement raised its own questions--most clearly this: who counts as an American "not engaged in combat"?  But the fundamental point Sen. Paul was making ties into a penultimate concern I'll identify:

The Global Battlefield.  If Senator Paul's filibuster highlighted the risk that drone warfare could come home, that is because the targets in targeted killings define the battlefield.  The 2001 Authorization for Use of Military Force (AUMF) provided legal authority to attack "nations, organizations, or persons," withouth any geographical limitation.  Legitimate questions have been raised about whether some of the al-Q'aeda-affiliated groups that the government now targets fit within the AUMF, especially as some of these groups are only loosely affiliated.  But let's put those questions aside.  If the goal is to degrade the enemy's force, then it makes sense to attack wherever the enemy is found.  Drone-launched targeted missiles enable the U.S. armed forces (and the CIA) to hit targets even in places that would not be reachable if the U.S. had to land ground forces or needed to rely on general aerial bombardment (which itself raises concerns about proportionality with even more civilian "collateral damage" than we see from targeted killings).

Global battlefields aren't exactly new.  During the Cold War, the U.S. and the Soviet Union engaged throughout the world via proxies.  But that is hardly a reason to repeat the enterprise.  Which brings me to the final worry:

Blowback.  Most contemporary discussions of unintended consequences of U.S. foreign policy tend to begin and end with Afghanistan.  After the Soviet invasion, the U.S. armed the mujaheedin, which (after much blood and treasure) proved effective in driving out the Soviets, but ultimately gave birth to the Taliban and al Q'aeda.  That is indeed a directly relevant, extremely important point of caution.  But we might also look back a decade earlier to the Nixon Administration's fateful decision to attack VC and affiliated North Vietnamese forces in Cambodia, even though the U.S. was not at the time at war with Cambodia. Quite apart from the legal and human rights questions raised by the Nixon/Kissinger policy, there is an issue of blowback.  The bombardment of Cambodia created enormous hostility to the U.S. among the Cambodian population, much in the way that drone bombing in Pakistan and Yemen today creates hostility--even though today's bombs are much more precise.  Obama policy may not match Nixon policy in bringing to power a Pakistani or Yemeni version of the Khmer Rouge, but the blowback concern is substantial.

* * *

I won't attempt to synthesize the foregoing concerns.  Indeed, I doubt that they can be synthesized in a way that adds up to anything coherent.  I will say, however, that there are enough concerns here that it is unsurprising that targeted killings have emerged as a flash point for criticism of military policy, much in the way that Gitmo emerged as a flash point under President Bush.  Closing Gitmo never made sense as a policy goal in itself.  The issue was the wars, the conditions, torture, and lack of access to the judiciary. None of these issues was necessarily connected to the site of the prison (except for access to the judiciary, but even that connection went away with the Supreme Court decisions from 2004-2008).  Nonetheless, President Obama initially sought to close Gitmo because he understood that it had come to represent a certain kind of failure of U.S. policy.  Congress stymied him but because of changes in some tactics, Gitmo has receded as a symbolic issue.  (It remains a practical issue.)

Meanwhile, the concerns discussed above (and possibly others) have meant that drones are becoming Obama's Gitmo.  Targeted killings may remain a popular policy for now, but then Bush won re-election in 2004 by running on his war record.