How Drones Redefine “Justice:” The Hidden War on Terror Kelsey Shea Government, Society & Culture It is in this context [of remote, decentralized war] that the United States has taken lethal, targeted action against al Qaeda and its associated forces, including with remotely piloted aircraft commonly referred to as drones. As was true in previous armed conflicts, this new technology raises profound questions—about who is targeted, and why; about civilian casualties, and the risk of creating new enemies; about the legality of such strikes under U.S. and international law; about accountability and morality. —President Obama, in a 2013 speech at the National Defense Academy In the days following September 11, 2001, Congress passed an Authorization of the Use of Military Force (AUMF) giving the President broad powers in fighting those involved in planning and executing the events of 9/11. A mainstay of the ensuing “war on terror” has been the use of unmanned, remotely piloted drones for intelligence and targeting purposes. The use of drones has allowed the United States to wage a covert war, one transcending traditional battlefields and undertaken mostly in secret. The covert nature of America’s drone war has drawn global attention, with human rights groups and national security task forces alike calling for greater transparency and accountability in the program. Most opposition voices understand that drone technology itself is here to stay: it is the moral and legal basis for certain applications of the technology that has been called into question. From Birth of the Drone to Just War Theory Drone technology has been used for a range of military and intelligence purposes, including reconnaissance, humanitarian aid and emergency response, and transportation. Although the use of drones for intelligence-gathering purposes—especially within the United States—is controversial, the following analysis focuses on targeted killings via drone strikes for counterterrorism purposes. Proponents of the drone program argue that strikes are legally and morally defensible. In the 2013 speech quoted above, President Obama asserted that not only have drone strikes been effective in killing terrorist targets, but that “this is a just war—a war waged proportionally, in last resort, and in self-defense.” But what exactly does waging a just war in the 21st century involve? As defined by the United Nations, targeted killing involves the use of lethal force by states against specific individuals outside their custody. Since 2001, the United States has used targeted killings through drone strikes against terrorist operatives in Afghanistan, Pakistan, Somalia, and Yemen. These strikes are often carried out not by the United States military, but by the Central Intelligence Agency. From a legal perspective, the United States is at war with al Qaeda and its associates. This allows the U.S. to target al Qaeda operatives under the law of armed conflict. To complicate the situation, al Qaeda is a non-state network of actors that extends beyond national boundaries. Against such an enemy, the lines demarcating the traditional battlefield disappear. In “Presidential War Powers in a Never-Ending ‘War’” (in the ILSA Journal of International & Comparative Law), Seth Weinburger addresses the bases of these complications, asking (and answering): “Is the AUMF passed by Congress in the wake of the September 11th attacks tantamount to a declaration of war?” Weinburger, an associate professor of politics and government at University of Puget Sound, goes on to analyze a number of key constitutional judgements on congressional appropriations power, further noting that “Almost all uses of U.S. military force meet the criteria of imperfect, rather than perfect, wars.” In regards to the specific use of drones in such “imperfect wars,” the question then becomes, “Where and when can the U.S. target enemy combatants in the war on terror?” For political commentator Charles Krauthammer writing in the Washington Post, the answer is clear: drone strikes are justifiable as self-defense against an imminent threat and as strikes on an enemy force with which the U.S. is at war. All members of al Qaeda are legitimate targets. Obama’s current position, then, is no different from President Johnson choosing bombing targets in Vietnam: the president has the ultimate authority, with “no judicial review, no outside legislative committee.” However, from the standpoint of the law of armed conflict, it is difficult to argue that all members of al Qaeda pose an imminent threat to the U.S. In 2013 the Obama administration adopted a more stringent policy of targeting, with strikes being considered only against targets who present a “continuing, imminent threat to Americans.” This conception of a fair target coincides with the just war precept of self-defense: the U.S. may only target those operatives with direct involvement in past attacks (retaliation) or with probable involvement in imminent future attacks (preemption). Of the three just war criteria President Obama mentioned, the most difficult to assess in the context of targeted drone strikes is proportionality, or how much force is morally appropriate within war. In America’s drone war, it is the target areas that experience the fallout from drone strikes: the drone operator undertakes his mission in perfect safety, as illuminated in this Utah Law Review article by Frédéric Mégret on “The Humanitarian Problem with Drones.” In this case it’s unclear how or by whom proportionality should be determined. The side with the upper hand may not be capable of judging the proportionality of the pain and hardship they deliver to their foe. To illustrate this point, recall then-Secretary of State Madeleine Albright’s proportionality calculations with regard to the devastating sanctions placed on Saddam Hussein’s Iraq in the 1990s. Her response when asked whether the death of half a million children under the sanctions program was a price worth paying to weaken the Iraqi government? It was a hard choice, she replied, but “we think the price is worth it.” The idea that the sanctioning government was “willing” to pay a price shouldered entirely by the target population perfectly illustrates the difficulty of judging proportionality without assuming proportional risks. It can be become seductively easy to engage in conflict if it is low-risk for oneself. But what are the risks for those on the other side of the war on terror? The issue of civilian casualties in the drone war is one fraught with misunderstandings and hampered by a lack of transparency from program operators. Casualty reports from drone strikes vary widely, making collateral death estimates impossible to estimate. Still, even the highest estimates involve fewer civilians killed than in other forms of warfare. Drone strikes are highly precise, and seem to actually do better at avoiding collateral damage than other military options. However, collateral damage encompasses more than just civilian deaths. In a Rolling Stone report on the human effects of the drone campaign in Yemen, Vivian Salama writes that “symptoms of post-traumatic stress disorder, trauma and anxiety are becoming rampant in the different corners of the country where drones are active.” The constant presence of drones leads to paranoia and a belief that anyone may be targeted. Drone strikes—seemingly random, sudden, and inescapable—leave little room for cultural gestures, such as giving travelers a lift or friendliness towards strangers. This perception has profound mental health effects: writing in The Lancet, Dr. Rajaie Batniji describes the desperate search for dignity and normalcy that accompanies life under occupation and covert attacks. For those living in constant fear, trauma and violence become tragically normalized. Addressing Terrorism’s Root Causes It is not clear the US is successfully addressing the root causes of terrorism, rather than simply eliminating terrorist threats via direct killings. In his book Kill or Capture: The War on Terror and the Soul of the Obama Presidency reporter Daniel Klaidman suggests that the drone program does nothing to assuage the “tide of hopelessness” that drives radicalism. This raises questions regarding the just war principle of right intention: the aim of America’s drone program seems not to be “to create a better, more just and more lasting subsequent peace” but rather to eliminate threats to its own security, which is undoubtedly a just cause for war but may not be a just outcome of it. Furthermore, it has been suggested (for example, in this American Security Project paper) that America’s drone program has become a terrorist anti-America propaganda tool, convincing would-be radicals that the U.S. does not value civilian lives in the target state. Research on this claim is mixed: analyst Christopher Swift in Foreign Affairs argues that poverty and lack of options breeds terrorism rather than American drone strikes. Whether or not the effect of the drone program in the Middle East is neutral or negative, covert elimination of high-level terrorist targets does not alleviate hopelessness nor does it provide resources in impoverished areas, and thus does not counteract significant drivers of terrorism. Thus in order to preserve right intention according to just war principles, does the United States incur certain moral obligations to the civilian populations in countries where it targets terrorist activities? In Dissent Magazine in 2009, political theorist Michael Walzer wrote that “what we owe the Afghan people eight years after we invaded their country” is to foster civil society and work on NGO projects focused on education and public health. To extrapolate Walzer’s argument, the general drone war effort might be better served were it to come in conjunction with a humanitarian mission—not in the interest of moral redemption but rather of overall effectiveness. A joint humanitarian effort would comprise a necessary element of the war on terror by working towards a more peaceful and stable post-conflict world rather than simply focusing on eliminating the next major threat from the top-down via targeted killings. Further Reading: For more on just war theory, read this overview in the Internet Encyclopedia of Philosophy. For further background on targeted killings, read this from the Council on Foreign Relations. For more on the mental health effects of drone strikes, Rolling Stone’s Vivian Salama weighs in. Chapter 3 of this report on “Living Under Drones” in Pakistan offers insights from civilians and mental health professionals on the impact of drone warfare on their own communities. Featured image courtesy of Wikimedia Commons.