Jonathan Manes, the ACLU lawyer whose work and presentations I have cited a couple of times in posts here at Volokh, and someone for whom, despite some fundamental agreements, I have great respect and like very much, has responded with the following letter. He has given me permission to post it here. The most important issue is the question of whether I have correctly represented his or the ACLU’s position on the question whether a problem with drones is that they make resort to force by the US too easy.
I don’t believe that it’s proper for me to editorialize on my views here, when the post is really to allow a “letter to the editor,” so I will simply post the letter below; I’m also not opening it to comments. I encourage you to read the FOIA request that Jonathan drafted on behalf of the ACLU (as well as review, if you are very ambitious, the panel discussion at Harvard – although I agree entirely (as I remarked with a similarly impromptu discussion by Harold Koh) that one should not hold people to the strict words of an impromptu panel discussion, and if Jonathan feels that I’ve played “gotcha” unfairly, then my apologies). (I am stealing time in a meeting – one of the deans will shortly glare at me, with good reason – and I will have to provide a couple of background links later, including a couple in Jonathan’s letter that I can’t reproduce at this moment.)
One thing I should add, though, is that whatever Jonathan and I do disagree about, we agree altogether on the need of the US government to offer a legal rationale for the practice. As I said in my last post, CIA director Panetta’s assertion that the program is legal does not tell us enough to form a view.
Okay, with that, my thanks to Jonathan for taking the time to respond in so thoughtful a fashion and so advance this discussion. (Dated March 22, 2010.)
I very much enjoyed meeting you and speaking with you at the conference last week. In case you hadn’t seen it, I thought I’d pass along this recent news item, which quotes Harold Koh saying he has conducted a legal review of the drone program and that the administration is likely to disclose its legal rationale. In light of our conversation, I think we’ll both agree that this is a very positive development!
Also, this past weekend I came across the item you posted on Volokh debriefing the HLS conference. I also saw the recent posting about your upcoming Subcommittee testimony. Both of these postings were engaging, as usual. But in both cases you unfortunately misinterpret part of my HLS presentation and the ACLU’s position, prompting this reply, which you should feel free to post on Volokh or elsewhere.
You’re right that at the conference I made the point that drones and other remote-controlled technologies make it easier to project force anywhere in the world. As a factual matter, this seems clearly to be true. As was discussed at the conference, drones are cheap to produce, easy to use (requiring only a few months of training), and less costly to deploy than ordinary weapons systems. But the point of highlighting that fact was emphatically not to suggest that keeping troops out of harm’s way is a bad thing, or that troops should be put in danger in order to “restrain” the U.S. I didn’t make that point, and you’re incorrect to attribute it to me or to the ACLU.
So, why mention the fact that drones are easier to deploy than other weapons? The point of my presentation was transparency, and I was making the case for why basic information about the drone program should be disclosed. Remote-controlled technologies allow the U.S. to wage war without putting troops in harm’s way. Keeping troops safe is clearly a good thing. But when force is deployed primarily by remote-control, people might be less motivated, by their affinity and concern for soldiers at risk, to scrutinize what the government is doing. As such, when it comes to drone warfare, it is especially crucial to be vigilant in demanding transparency, so that the public knows what the government is doing in its name abroad.
The ACLU, the organization that I work for and represent as a lawyer, has filed a FOIA request and lawsuit in order to serve this democratic function. The ACLU is trying to facilitate the kind of public debate and discussion that is necessary and appropriate in a democracy when it comes to using lethal military force abroad. Targeting and killing specific people who are off the battlefield also raises significant civil liberties concerns – especially when the targets can include U.S. citizens, as the government has acknowledged. The public therefore has a right to the kind of basic information we’re seeking in this FOIA: the legal rationale and limits on the program, the internal oversight that ensures these methods are not abused, and the results of the program, in terms of civilian and non-civilians killed. Disclosure of this kind of information is important to satisfy the public that its government is conducting the drone campaign in a manner that is consistent with U.S. law, values, and interests. (It is also not the kind of information that should jeopardize national security if released – if it does, the government will surely withhold the documents and let us know why they can’t be released.)
That, in short, is the rationale for the ACLU’s efforts on the drone issue. As such, it is simply not the case that “the ACLU has decided to campaign on the issue of jus ad bellum, whether the US should be resorting to force and to what extent.” And let me be clear: the ACLU does not believe – nor did I express – the view 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.” Perhaps other groups make this argument. But not the ACLU.
I appreciate that in discussing complicated matters like these, it is easy to be misunderstood or to misread a person’s meaning. But because you came away with the wrong impression from my talk, and because in your recent post you again misattributed this argument to me and the ACLU, it’s important that the record be corrected.
Having said all that, I concur with you that we agree on at least two things — i.e., the need for the administration to disclose the legal rationale for the drone program, and that there are geographical limits on the IHL justification for using drone strikes. But in light of what I’ve said above, it should be clear that we agree on more than just the two points you mentioned. Like you, I deplore the loss of soldiers’ lives in combat. I have immense respect for those who choose to serve in the armed forces. Some of the sharpest and most honorable people I have met are current or former servicemembers, including among them Tad Oelstrom and Missy Cummings, our fellow presenters at the HLS conference. As such, the suggestion that I think that U.S. lives should be put at risk unnecessarily – in order to create “the proper incentives not to over-resort to the use of force” or otherwise – is repugnant. Likewise, I imagine that we share a strong concern that the people on the receiving end of U.S. weapons not be civilians, and that the military do everything it can to minimize the loss of innocent life.
In any case, I, too, thought that the conference was extremely interesting and useful. The combination of speakers and topics was very good. I am grateful to the Harvard National Security Journal for putting it on and inviting me to attend. I also enjoyed meeting and chatting with you. And I am hopeful that the next time we meet, we’ll find at least a few more things to agree on!
Legal Fellow | National Security Project
American Civil Liberties Union Foundation