'Lawful but Awful'

The Moral Perils of Drone Warfare

This past summer the Stimson Center, a nonpartisan think tank devoted to global security, issued the report of its task force on U.S. drone policy. It makes for depressing reading. Among other things, the report concludes that although the American use of drones for targeted killing may be legal, the pervasive use of drones threatens the rule of law. “While the legal norms governing armed conflicts and the use of force look clear on paper,” the task force concluded, “the changing nature of modern conflicts and security threats has rendered them almost incoherent in practice. Basic categories such as ‘battlefield,’ ‘combatant,’ and ‘hostilities’ no longer have a clear or stable meaning. And when this happens, the rule of law is threatened.”

No one familiar with the history of just-war tradition or international law will be surprised to hear that the changing nature of conflict necessitates a reevaluation of the moral frameworks used for assessing the use of force. For evidence that such a reevaluation is taking place, we can turn to President Barack Obama’s address at the National Defense University (NDU) in May 2013. Responding to calls for his administration to justify its policy of targeted killing using drones, Obama explained that his administration was committed to a multi-pronged approach to counterterrorism, one that utilizes both a law-enforcement and a military model. The president said that his preference was to capture, interrogate, and prosecute suspected terrorists—but that when this was not an option, he would not hesitate to use deadly force. As commander-in-chief, he insisted, he had the authority to do so.

In defending the executive authority to initiate drone strikes, the president notably differentiated between the moral commitment to wise statecraft and the legal right of self-defense. “This new technology,” he observed, “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 United States and international law; about accountability and morality.” Addressing these questions, the president noted first that America’s actions are legal. Yet, he continued, “America’s legitimate claim of self-defense cannot be the end of the discussion. To say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance. For the same human progress that gives us the technology to strike half a world away also demands the discipline to constrain that power—or risk abusing it.” In developing guidelines to guard against such an abuse, international law must be adhered to, the president asserted, but there are other standards as well. America, he insisted, would act only “against terrorists who pose a continuing and imminent threat to the American people, and only when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near certainty that no civilians will be killed or injured.”

The distinction Obama draws between wise decisions and legal ones nicely illustrates the contrast scholars have drawn between classical and modern conceptions of the just-war tradition. That there is a moral component to the exercise of political power, which extends beyond the responsibility to protect the state from attack—that some actions are “lawful but awful”—is an idea embedded in classical notions of just war, but frequently missing in contemporary ones. Modern conceptions of the just-war tradition typically assess the use of force to protect innocents within the context of one state defending its citizens against unjust aggression by another state. By contrast, classical just-war tradition understood that the sovereign had the responsibility to seek peace and justice, period. One commitment set out in contemporary Catholic teaching on just war strongly echoes this classical tradition—namely, the emphasis on a “universal common good.” The U.S. Conference of Catholic Bishops’ 1993 statement The Harvest of Justice Is Sown in Peace advocates

a global order oriented to the full development of all peoples, with governments committed to the rights of citizens, and a framework of authority which enables the world community to address fundamental problems that individual governments fail to resolve. In this framework, sovereignty is in the service of people. All political authority has as its end the promotion of the common good, particularly the defense of human rights. When a government clearly fails in this task or itself becomes a central impediment to the realization of those rights, the world community has a right and a duty to act where the lives and the fundamental rights of large numbers of people are at serious risk.

It is worth noting that the Obama administration has articulated something very much like this position in defending its use of drones for targeted killing. As the president explained in his NDU address, where foreign governments cannot or will not effectively stop terrorists from planning and launching attacks against innocent civilians, the United States will consider the use of drones and targeted killing legitimate. In this, the president has classical just-war tradition on his side.

In recent decades, however, just-war tradition has come to be read in a new and legalistic way. Instead of couching the tradition in terms of wise statecraft and the promotion of peace and order, just-war practitioners came to view violence itself—rather than the absence of order—as the greatest threat to human flourishing. As a consequence, the use of force could rarely be justified, and typically only in the pursuit of self-defense, a position that is a hallmark of international law.

Yet there is good reason not to fold just-war tradition into international law. To illuminate this point, let’s examine the analysis of Laurie Blank, a scholar of international law, on the just-war category of proportionality as it applies to Israeli action in Gaza. Writing at the Hill, a Washington political blog, Blank notes a tendency among those assessing conflicts like Gaza to count up the civilian casualties on both sides and to declare significant asymmetries as evidence of war crimes—which some have accused Israel of committing. Yet Blank insists that “widely different numbers of civilian casualties between two sides in a conflict says nothing about the proportionality of particular attacks on specific targets.” Proportionality is rather about deciding whether civilian casualties will be excessive in relation to the anticipated military advantage gained. “Conflating asymmetry and proportionality is both inaccurate and harmful to the law of war’s core purposes,” Blank writes. “They are simply wholly different concepts: one a factual game of numbers and one a comprehensive legal analysis.”

Now consider the analysis of Frances Kamm, professor of philosophy and public policy at Harvard’s Kennedy School of Government. Proportionality, Kamm correctly notes, is “about whether the harm that will be caused by military action is proportionate to the goal of the war or an individual military action.” Like Blank, Kamm insists that simply comparing numbers of dead and wounded is not sufficient to determine proportionality. Yet she notes that the proportionality standard does not itself tell us what is proportionate or disproportionate; making that judgment takes us beyond a strictly legal framework. And the fact that a military action is proportionate, she reminds us, does not make it morally permissible or wise.

As Michael Walzer has written, “proportionality is a dangerous idea.” It is a dangerous idea because an action can be lawful—that is, proportionate, discriminate, and necessary—and still be morally awful. This is why just-war theory as classically conceived is important. It does not provide an algorithm for right action, but rather guidance for leaders concerned about the wisdom of using force both generally and in concrete circumstances. It is significant that in defending his policies on counterterrorism, Obama has sought to revise important categories of international law like “sovereignty” and “imminence” by appeal to traditions of moral thought more akin to Aquinas than to the UN Charter.

 

WHAT WOULD BE THE implications of basing contemporary discussions of the ethics of warfare on Aquinas’s insistence that the justification for using force is not rooted in the right of self-defense, but rather in the sovereign’s responsibility to secure both peace and order? Would the discussion of Israeli action in Gaza be different, for example, if we asked not whether it is legal, but whether it is wise? And what about our country’s use of drone strikes? Under international law, the use of force across territorial boundaries is acceptable under any of three conditions: the recipient state consents to it; the UN has authorized it; or the state using it is defending itself against armed attack or an imminent threat. Although the Obama administration’s full legal justification for its use of targeted killing has not been made public, officials have provided enough detail about the policy to suggest that they have attempted to meet these conditions.

Even if targeted killing using unmanned drones is consistent with international law, we still must assess the practice morally. In terms of jus in bello considerations, the administration says it is committed to meeting the requirements of necessity, discrimination, and proportionality, and that drone strikes are the most discriminate and proportionate weapons available. Yet there remain reasons for concern. The problem is that drone warfare, at least as the United States has deployed it, threatens to erode rather than support order and stability. Yes, drones strikes can be much more precise than other weapons and can therefore reduce the destruction caused by military engagement. Yet they effectively expand the fight in time and space, and they enforce a surveillance regime that is indiscriminate and terrifying to an entire population. Focusing on the numbers killed and injured by a missile strike can incline us to overlook the suffering of those living under constant surveillance and threat.

Given that U.S. drone strikes have been shrouded in secrecy and conducted in regions of the world minimally accessible to journalists and human-rights workers, we lack a full understanding of their effects. But the few studies that include firsthand accounts suggest that drone warfare does not simply threaten terrorist networks, but profoundly disrupts the lives of noncombatants. “Living Under Drones,” a joint publication of the International Human Rights and Conflict Resolution Clinic at Stanford Law School and the Global Justice Clinic at NYU School of Law, cites former New York Times journalist David Rohde’s account of his time as a prisoner of the Taliban. “The drones were terrifying,” Rohde wrote. “From the ground, it is impossible to determine who or what they are tracking as they circle overhead. The buzz of a distant propeller is a constant reminder of imminent death.” Rohde called the experience of living under drones “hell on earth.” Both “Living Under Drones” and “The Civilian Impact of Drones,” a report jointly produced by the Human Rights Clinic at Columbia Law School and the Center for Civilians in Conflict, suggest that we should be more attentive to the cultural, economic, and psychological harm that may befall civilians even when the danger of physical harm is minimized.

If just-war tradition is to help us think morally about the use of force in our current situation, we may need to take a lesson from Aquinas. To be sure, Aquinas set out conditions under which war is justified; indeed, the three conditions he lists—legitimate authority, just cause, and right intention—are still part of virtually every account of just-war theory. But Aquinas is clear that above and beyond these conditions, the sovereign has a responsibility to seek peace and order—and thus, even given just cause and right intention, if using force will increase instability and chaos, prudence dictates against it. In such a circumstance, warfare is morally unwise.

We have only just begun a debate about unmanned drones and targeted killing. If just-war tradition is to be useful in this debate, we will need to remember with Aquinas that morality, law, and wisdom do not always align.

Published in the January 23, 2015 issue: 

Paul Lauritzen is Professor of Religious Ethics at John Carroll University. His most recent book is 'The Ethics of Interrogation.'

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