Drone Warfare and the Harvard National Security Conference

I’m writing from Cambridge, where I just finished a great short conference on targeted killing and drone warfare put on by the Harvard Law School National Security Law Society and Journal. The  presentations should go up as video one of these days I hope!) and I highly recommend them if you are studying this topic. Particularly for us lawyer types, the presentations by engineering professor Missy Cummings and Kennedy School professor Tad Oelstrom – both former military aviators, among many other things – was highly informative about the real world of UAVs in military use. My thanks to all the students who put the conference together – we had a lovely dinner afterwards, and I enjoyed the conversation with them a great deal. My thanks to the law school as well for funding it – times are tough, even at places like Harvard – and I appreciate the dean and the school’s willingness to continue hosting events that allow for important legal and policy discussions to go forward.  (Delayed a couple of days posting this – travel and then internet problems at home.)

I tried to use my time at the conference to think through some of the questions I’ve been raising both in my first published piece on this subject, Targeted Killing in US Counterinsurgency Strategy and Law, and in the long opinion essay in last week’s Weekly Standard, Predators over Pakistan. I’m going to do a series of posts extending some of those discussions.

Probably the most important conclusion for me from discussions following my Predators over Pakistan essay is that I have not been sufficiently clear, with myself or in writing, that the appeal I am making to self-defense law does not preclude the application of the normal laws of war in those places where there is an armed conflict. Discussion of this topic seems a little bit like the blind men and the elephant – the military people responsible for a counterinsurgency ground war in Afghanistan see Predator strikes in their theatre of conflict, quite rightly, as not a big issue. It is not different, really, from the missile fired by a jet 25 or 30 miles away – it’s just another standoff platform. The legal rules of targeting are no different, and it’s just another standoff firing option.

At the other extreme, however, is the CIA using Predators to attack a targeted designated by the President under procedures outlined in US statutes for covert action by the CIA. Is that different, legally? US forces are in an armed conflict with Al Qaeda, and members of AQ, combatants if we find them in Afghanistan, flee to Somalia – so we chase them down there and fire at them with Predators run by the CIA. Why isn’t that just more of the “armed conflict”?   Same rules apply – geography is not really an issue.

I have argued that geography matters, not for its own sake, but rather more precisely, because in establishing whether you have an armed conflict to which the laws of war apply – displacing other regimes of law – you have to meet a threshold of active, sustained, etc., etc. hostilities and fighting (I’m not looking to be strictly precise here) if, as the US has said, particularly in the SCOTUS analysis, it is a non-international armed conflict with a non-state actor. I don’t think SCOTUS got it right. Moreover, it led to the unintended consequences of result-oriented jurisprudence, the Court seeking to find a basis on which to apply the standards of CA3, and leading the Court to conclude that a provision envisioned entirely (read Pictet) about internal civil war could apply by ignoring the territoriality phrase in CA3 to focus instead solely on the non-state actor part. I think the Court should simply have said that CA3 standards apply as some universal baseline standard irrespective of armed conflict, and it should left aside how it intended to get there, but it didn’t. It was not well-briefed on the issue, and waded into deep waters about the law of armed conflict with implications for many other important parties in the world.

Viz., it appears that territoriality is an issue after all. I don’t think the Bush administration got it right by defining the conflict as the “global” war on terror – it is one matter on which I agree with the critics, whether academics such as Mary Ellen O’Connell or organizations such as the ICRC. Nor can the AQ case be assimilated to WWII and chasing combatants around wherever they go – if you take the treaty language seriously, and the customary law intended by the United States and other states when drafting CA3 to keep the threshold of a non-international armed conflict high, then, yes, it matters legally that WWII was an international armed conflict and the AQ war a non-international one with a non-state actor. It seems anomalous, because despite the non-international language, we are following them around the world, but we have legally decided to focus exclusively on the non-state actor part, in order to apply CA3. If that is the case, then the customary law threshold matters.

But okay, I’m just me, another academic. The takeaway for the administration and its legal teams is something different. This conference shows once again that the US government’s view (that the global nature of the conflict, it can go anywhere and still be called armed conflict with Al Qaeda, is quite unexceptional and what’s the big deal) … is like ships passing in the night with a large and very influential part of the international community. Jonathan Mannes, the ACLU lawyer who drafted the FOIA request which is soon going to ripen into a law suit over the US revealing its legal rationale for targeted killing, laid it out in the FOIA itself and in short form at the conference. He is a very smart young lawyer, and said what I have just said in much more sophisticated language. Jonathan (whom I like very much and I hope will not take this amiss) and I agree on two – and probably only two – legal propositions here: First, the US government needs to step up and state its rationale.  Second, in an armed conflict characterized by the US itself as a CA3 conflict, the location of hostilities at a certain level matters. Maybe there is some international law group somewhere that agrees with the US government that this is simply not an issue – I don’t know who it might be.

The US government may think this legal account of combatancy obvious. If you think the question of the territory of active hostilities is simply irrelevant, then I suppose it is. The sole issue is the people involved – are the combatants in some pre-existing conflict, whom you can chase down wherever they happen to be and with whatever force is, or is not, required. But if you think the place of hostilities and their intensity have some (even perhaps unclear) relevance, then consider the sweep of successive extensions:

• The obvious and acknowledged-on-all-hands armed conflicts in Afghanistan and Iraq;

• border regions of Pakistan into which the armed conflict might be said to have spilled;

• the rest of Pakistan;

• Yemen and Somalia;

• beyond, as circumstances require, to chase down AQ elsewhere.

My view, for what it is worth, is that there are armed conflicts in Afghanistan and Iraq, and parts of Pakistan into which the fighting has spilled. The other situations should be addressed under the law of self-defense. To which we can add two other distinctions which, again, might seem obvious to the USG but do not seem so to the critics:

• Predator-based weapons controlled by the US military in some cases; and

• controlled by the CIA in others.

And, finally, a distinction that also seems not to be discussed much:

• Security situations covered currently, at least as far as the US is concerned, by the existence of armed conflict, on whatever basis determined, under the terms of the AUMF; and

• future security situations to which a US government will conclude it must respond with force against a non-state actor in some foreign territory, but entirely unrelated to AQ, 9-11, or any of our current conditions.

So the first takeaway is that the US government might think the legal situation sufficiently plain that it needs no adumbration. And that there are many critics, not all of whom can be ignored and some of whom are intimately connected to the some of the administration’s collective legal team, that think it equally obvious that the territory matters in some way.

The second takeaway is that the ACLU (and others) is not going to rest with “information.” The ACLU’s FOIA is an exceptionally well-drafted brief both to obtain information as the US legal position and, as much as possible, operational information. Jonathan is an extraordinarily talented young Canadian lawyer with strong knowledge of IHL. It also lays out the foundation of both a legal argument and a campaign for how to undermine the practice. In his presentation yesterday – I would urge government lawyers to watch it (hmm… hope the video goes up! ed.) – he was pretty clear about this, at least in my view. The most important point was not about “information” as such, nor was it even about the “conduct” of hostilities. On the contrary, it was a clear statement that the ACLU had decided to campaign on the issue of jus ad bellum, whether the US should be resorting to force and to what extent. The “incentives” or “disincentives” to use force if your own people are not at risk.

Jonathan said, for example, that one of the issues with Predators was that they removed the “natural barriers” that would otherwise have to be fought through in order to attack alleged terrorists. It made it (too) easy for the US to resort to violence. Well. I’ve heard it a lot, of course – it seems to be the only thing that many journalists learned from Peter Singer’s book, apart from the fact that Predators are (mostly) controlled in Nevada. But it would be hard to come up with a more direct statement that the issue for the ACLU is not the usual (at least surface) concern of human rights groups with jus in bello and the conduct of armed operations, but instead a belief that the US needs to be restrained – through direct and personal exposure to death on the part of its soldiers – in order that it have the proper incentives not to over-resort to the use of force.

What the ACLU (and everyone else who offers this, to my mind, quite stunningly callous argument, at least if you value the lives of American soldiers) seems really to be saying is that “we” – The United States? The ACLU?  Angels looking down from heaven?  “Neutral” referees of war?  Who? – should not make it too easy for the United States to win its wars, if necessary by forcing its troops to fight their way through “natural barriers” and at the appropriate cost in American lives.  Wow.  Heck of a point of view, at least for an ostensibly American organization and its lawyers.  Count me out.

I have difficulty understanding how this is the ACLU’s issue – but then I have great difficulty with its entire current national security frame as being its issue. The fundamental anxiety is that US fighters not sufficiently exposed to personal danger, thus making it too easy for the US to undertake violence. This basic point from Singer’s book has, I think, has been elevated into something much more than it is – more, indeed, than I suspect Singer intended. It is an academic point about incentives in the abstract. Law academics a little too in love with incentives-rationalist arguments love the point.  Why not – essentially, it’s Coase for national security.

But the reality is that there is little reason to think that, however fun to think about as a “necessary” consequence of the incentivizing logic of drones, this single abstract proposition about drones drives decisions to use or not use violence by the United States. Possible. But one had better have some actual data and a really good way of eliminating other explanations or interactions with other explanations. Those writing about it – I include myself – do not even try. But, right or wrong about that, it has turned into a key driver of this issue for groups (e.g., ACLU) that, at least on the surface, are ostensibly about the lawful conduct of war and not about whether the US resorts too often to force.

(I will also add that academics and intellectuals and elite lawyers who like to talk this kind of language of ‘optimally raising the personal risk level for American forces, because Predators and UAVs reduce the US’s disincentives to use violence, so to achieve the efficient level of the resort to force’ … you all have no idea how it sounds to the rest of us Americans – and by that how deeply offensive to the rest of us, who in our naive and no doubt inefficient way think it would be a good idea if the United States killed its enemies in a way that reduced the risks to its forces, and think UAVs are an excellent way of doing so.)

(Try that in front of a Senate hearing, and I bet the result will be that even Senators Leahy, Boxer, and Schumer will vote to condemn you. Being too cool and refined to take sides is not always a sign of moral superiority (as I argue at the end of this article on humanitarian neutrality and its limits, in this European Journal of International Law essay, and in this short review, “What the Swiss Miss.”)  Suggesting, however sophisticated the language, that superior intellects understand that “we” need to have more American GIs killed, or at risked, in order to reach the efficient equilibrium of incentives and disincentives to violence is not a winning argument. I also think, however, that the folks inclined to make this kind of argument cannot restrain themselves from making it, because it lies at the heart of what they truly think, while also confirming both their morally superior position of “neutrality” and their intellectual superiority, too, and all the rest is merely a minor add-on.  If I sound offended by it, I am.)

(Actually, I don’t think it is morally right, either, or all that smart, as an intellectual position.  Reductivism pushed hard winds up being either sublimely elegant or else dumb in tarted up language or else true but trivial.  This one falls into the ‘dumb’ box.  It’s a convenient, too-quick, reductivist application of consequentialist theory, whereas a more subtle, but harder moral view is to understand that … sides matter! The question is how, and that is something that cannot be reduced down to a reflexive consequentialist framework. It is a genuinely deep question in the moral psychology of affect and affection.)