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Drone Strikes and Just War

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President Obama’s drones are all over the map—and so is public opinion about U.S. covert operations against transnational terrorists. The recent domestic grumbling over drones is likely to have zero impact on how Congress exercises oversight. But the ferocious international debate now underway may well curtail how the United States chases down its enemies in the future.

Confirmation hearings for John Brennan as the next director of the Central Intelligence Agency had the topic of drones trending on Twitter. In fact, the catty comments from the left and the right have been piling up ever since it became clear that Obama planned to double down rather than back off using the CIA and Special Forces to wage a shadow war.

As a key member of the president’s National Security Council staff, Brennan could be considered the architect of the administration’s counterterrorism strategy. That strategy places a premium on using missile-armed unmanned aerial vehicles to whack the leadership of Al Qaeda and its affiliates pretty much wherever and whenever they can be found.

Obama’s drone wars have spawned some strange bedfellows among the hardcore right and the radical left. When journalist David Frum dared defend drone strikes against enemy combatants who were also U.S. citizens, conservative pundit Michelle Malkin’s Twitchy web site declared:

Once upon a time, David Frum could market himself as a conservative and actually give people reason to believe him. That time is long gone. He’s now a proud member of the Media Lapdog Circus, performing jaw-dropping feats of intellectual contortion in order to justify President Obama’s drone strike policy.

On the flipside of the political plate, The Guardian’s Glenn Greenwald labeled the legal justification for the president’s policies as “chilling,” little more than warmed over “Bush/Cheney theory.” When Glenn and Michelle join forces, the world is truly turned upside down.

In official Washington, the Brennan hearing moved both former administration officials (like Robert Gates) and sitting senators (such as Patrick Leahy) to call for more oversight—including a special court to review the White House targeting choices. But as David Nather rightly pointed out in Politico:

It’s not clear that the revelation marks a new day for drone oversight. In fact, there’s plenty of evidence to suggest that Congress will return to status quo, as the Hill often does after a brief moment of interest in a headline-grabbing national security program like the eavesdropping program under President George W. Bush.

The political squabbling over war-by-joystick, however, is just a side show. For those who really have had it with the president’s drone strikes, the oversight issue is just a stand-in for their bigger complaint: that the rules of war are not adequate to leash the president’s god-like capability to launch thunderbolts from the sky. They want new rules.

But the argument that new technology demands new rules of war is as timeworn as it is unpersuasive. Existing rules of war accommodate new technologies perfectly well. The rules are based on well-established ethical principles known as the Just War Doctrine. The key principle here is proportionality, which simply holds that the amount of force combatants use must be appropriate for the task. Efforts to limit the danger to noncombatants must also be made—it is forbidden, for example, to intentionally target noncombatants. The use of force must be for a military purpose—in other words, not indiscriminate—and the risk of harming innocents cannot be out of proportion to the direct military end that is anticipated. For example, leveling an entire city to take out a sniper would be a gross violation of the proportionality principle. These standards are as applicable for fighting with sticks and stones as they are for battling with Terminators and Transformers.

That said, the rules of war may well turn on Obama—not because the technology has changed but because our ethics are changing. I recently spoke at a conference where an international-law professor suggested that, since the technology is so precise, not only should civilian casualties be prohibited,but perhaps lethal strikes should be used only against combatants who were imminently preparing to apply lethal force themselves. That standard might make sense as a qualification for an “expert” rating in Call of Duty—a video game where you get extra credit for the most headshots—but it makes no sense for the real world. Still, there are serious arguments for new rules based on “new” ethics.

Several factors seem to be working to sift the sands of ethical warfare. One is the rise of empathy in Western culture. Empathy has become a preferred attribute of Western society. The emotion of caring overwhelms the logic of cold, hard facts. Historian Lynn Hunt argues, for example, that contemporary concerns over torture and the universal nature of human rights are modern expressions of an increasingly emphatic culture. We may be entering an age where more and more people will want to judge the use of violence based on feelings rather than reason.

Another challenge to Just War Doctrine is the increasing use of “lawfare” in international politics. This tactic comprises efforts to misuse or reinterpret existing laws to frustrate U.S. policy initiatives. Lawfare works to undermine America’s legitimate efforts to exercise its sovereignty and act in its own interests as it sees fit.

Lawfare is a common modus operandi of professional, international human-rights activists, including certain “special rapporteurs” operating out of the United Nations Human Rights Council in Geneva. Drones have been a particular target for these groups. Indeed, UN special rapporteur Ben Emmerson of the United Kingdom recently announced a new investigation into Washington’s use of drones in various countries. The problem with lawfare is that it blurs the line between the law and political advocacy. What is rational or legitimate becomes less important than what the lawfarer wants. And professional rights activists often want a basis of public decision-making that is far different from the rules of war derived from the Just War tradition.

Well before this long war ends, President Obama may find that weapons that were acceptable at the start of his administration may be deemed unacceptable. In other words, he may find that the ethical foundation of war has shifted under his feet. Moreover, the president may have to ponder if he accelerated that change by pursuing a strategy fixated on playing global whack-a-mole with terrorist leaders. An overreliance on technological “fixes,” after all, always strikes a nerve among people who prize the heart far beyond the head.

-James Jay Carafano is vice president for foreign and defense policy studies at The Heritage Foundation.

First appeared in National Interest.

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