2
WHY DRONES ARE
MORE DANGEROUS THAN NUCLEAR
WEAPONS
Weaponized drones are probably the most troublesome weapon added to the arsenal of war making since the atomic bomb, and from the perspective of world order, may turn out to be even more dangerous in its implications. This may seem an odd, alarmist, and inflated statement of concern. After all, the atomic bomb in its initial use showed itself capable of destroying entire cities, threatening the future of civilization, and even apocalyptically menacing the survival of the species. It changed drastically the nature of strategic warfare, and will continue to haunt the human future until the end of time. Yet, despite the irrationality and war mentality that explains the diabolical unwillingness of political leaders to work conscientiously toward the elimination of nuclear weapons, it is a weapon that has not been used in the intervening sixty-nine years since it was first unleashed on the hapless residents of Hiroshima and Nagasaki, and achieving non-use has been a constant legal, moral, and prudential priority of leaders and war planners ever since the first bomb inflicted unspeakable horror and suffering on the ill-fated Japanese who happened to be present on that day in those doomed cities.
The second-order constraints imposed over the intervening decades to avoid nuclear war, or at least to minimize the risk of its occurrence, although far from foolproof, and likely not sustainable over the long term, were at least compatible with a world order system that has evolved to serve the principal shared interests of territorial states.1 Instead of reserving this ultimate weaponry of mass destruction for battlefield advantage and military victory, nuclear weapons have been confined in their roles to deterrence and coercive diplomacy, which although unlawful, morally problematic, and militarily dubious, presupposes that the framework of major international conflict is limited to the belligerent interaction of territorial sovereign states.2
Reinforcing these constraints are the complementary adjustments achieved by way of arms control agreements and nonproliferation. Arms control based on the mutual interests of the principal nuclear weapons states, the United States and Russia, seeks increased stability by restricting the number of nuclear weapons, forgoing destabilizing innovations, and avoiding overly expensive weapons systems that do not confer any major deterrent advantage.3 In contrast to arms control, nonproliferation presupposes and reinforces the vertical dimension of world order, legitimating a dual legal structure superimposed on the juridical and horizontal notion of the equality of states. The nonproliferation regime has allowed a small, slowly expanding group of states to possess and develop nuclear weapons, and even make nuclear threats, while forbidding the remaining 186 or so states from acquiring them, or even acquiring the threshold capacity to produce nuclear weaponry.4 This nonproliferation ethos is further compromised by linkages to geopolitics, giving rise to double standards, selective enforcement, and arbitrary membership procedures, as is evident by the preventive war rationale relied upon in relation to Iraq and now Iran, and the comfort zone of silence accorded to Israel’s known, yet unacknowledged, arsenal of nuclear weapons.
This experience with nuclear weaponry tells several things about international law and world order that establish a helpful background for considering the quite different array of challenges and frightening temptations arising from the rapid evolution of military drones. First of all, the unwillingness and/or inability of dominant governments—the vertical Westphalian states—to eliminate these ultimate weapons of mass destruction and achieve a world without nuclear weapons despite their apocalyptic implications. The requisite political will has never formed, and has over time actually receded.5 There have been many explanations given for this inability to rid humanity of this Achilles’ Heel of world order, ranging from the fear of cheating, the inability to disinvent the technology, the claim of superior security when deterrence is compared to disarmament, a hedge against the emergence of an evil and suicidal enemy, an intoxicating sense of ultimate power, and the prestige that comes with belonging to the most exclusive club joining together dominant sovereign states.6
Secondly, ideas of deterrence and nonproliferation can be reconciled with the virtues and thinking that has dominated the tradition of political realism that remains descriptive of the manner in which governmental elites think and act throughout the history of state-centric world order.7 International law is not effective in regulating the strategic ambitions and behavior of stronger states, but can often be effectively imposed on the rest of states for the sake of geopolitical goals, which include systemic stability. Thirdly, the international law of war has consistently accommodated new weapons and tactics that confer significant military advantages on a sovereign state, being rationalized by invoking ‘security’ and ‘military necessity’ to move aside whatever legal and moral obstacles stand in the way.8 Fourthly, due to the pervasiveness of distrust, security is calibrated to deal with worst case or near worst case scenarios, which is itself a major cause of insecurity. These four sets of generalizations, although lacking nuance and example, provide a background understanding as to why the efforts over the centuries to regulate the recourse to war, weaponry, and the conduct of hostility have had such disappointing results, despite highly persuasive prudential and normative arguments supportive of much stricter limitations on the war system.9
Drones, as new weapons systems responding to contemporary security threats, have a number of features that make them seem particularly difficult to regulate, given the shape of contemporary political conflict. This especially includes the threats posed by non-state actors, development of terrorist tactics that threaten the capability of even the largest states to uphold territorial security, and the inability or unwillingness of many governments to prevent their territory from being used to launch transnational terrorist attacks on even the most powerful country. From the standpoint of a state considering its military alternatives within the present global setting, drones appear particularly attractive, and the incentives for possession, development, and use are far greater than in relation to nuclear weaponry. Drones are relatively inexpensive in their current forms as compared to manned fighter aircraft, they almost totally eliminate any risk of casualties to the attacker, especially in relation to warfare against non-state actors, they have the capacity to strike with precision even the most remote and inaccessible targets, they can target accurately on the basis of reliable information gathered through the use of surveillance drones with remarkable sensing abilities, their use can be politically controlled to ensure restraint and a new version of due process that vets the appropriateness of targets in procedures of assessments carried on behind closed doors, and the casualties inflicted by drones are miniscule as compared to other methods of counterterrorist warfare. In effect, why should not the use of drones by a morally sensitive, prudent, and legitimate leadership of the sort that controls American counter-terrorist policy be endorsed rather than criticized and lamented?11
There are two contradictory narratives, with many variations for each, analyzing the essential normative (law, morality) quality of drone warfare, and its dominant recent role in implementing the tactics of targeted killing of designated persons. On one side of the dialogue are the “children of light,” who claim to be doing their very best to minimize the costs and scale of war while protecting American society against the violence of extremists whose mission is to use violence to kill as many civilians as possible. On the other side are the “children of darkness,” who are portrayed as engaged in criminal behavior of the most reprehensible kind to kill specific individuals, including American citizens, without any pretense of accountability for errors of judgment and excesses of attack. In effect, both narratives present warfare as a discretionary form of serial killing under state auspices, officially sanctioned summary executions without charges or with no explanation or accountability even when the target is an American citizen.12
The comparison of drone use with nuclear weapons is revealing in this setting, as well. There never was an attempt by any Western political leaders to endorse the civilizing role that could be enacted through threats and uses of nuclear weapons, beyond the contention, which can never be demonstrated, that their mere existence had prevented the Cold War from becoming World War III. Such a claim, to be credible at all, rested on the amoral belief that their actual use would be catastrophic for both sides, including the users, while the threat of use was justifiable to discourage risk taking and provocation by an adversary.13 In contrast, with drones, the positive case for legitimating the weaponry is associated exclusively with actual use as compared to the alternatives of conventional war tactics of aerial bombardment or ground attack.
The children of light version of drone warfare was given canonical status by President Barack Obama’s speech delivered, appropriately enough, at the National Defense University, on May 23, 2013.14 Obama anchored his remarks on the guidance provided to the government over the course of two centuries in which the nature of war has changed dramatically on several occasions but not the constitutional framework within which war is prosecuted. In Obama’s view, the founding principles of the republic enshrined in the Constitution continue to provide authoritative and prudent guidance to political leaders, having “served as our compass through every type of change. . . . From the Civil War to our struggle against fascism, on through the long twilight struggle of the Cold War, battlefields have changed and technology has evolved. But our commitment to constitutional principles has weathered every war, and every war has come to an end.”
Against this background, Obama continues the unfortunate discourse inherited from the Bush presidency, that the 9/11 attacks initiated a war rather than constituted a massive crime. In his words, “This was a different kind of war. No armies came to our shores, and our military was not the principal target. Instead, a group of terrorists came to kill as many civilians as they could.” There is no attempt to confront the question of why this provocation might have better been treated as a crime, which would have worked against launching the disastrous pre-9/11 wars against Afghanistan and Iraq. Instead, Obama offers the bland, and rather disingenuous claim that the challenge was to “align our policies with the rule of law.”
According to Obama, the threat posed by al-Qaeda a decade ago has greatly diminished, although not disappeared, making it “the moment to ask ourselves hard questions—about the nature of today’s threats and how we should meet them.” Of course, it is revealing that the crowning achievement of this type of warfare was not a battlefield victory or territorial occupation, but the execution in 2011 of the iconic al-Qaeda leader, Osama bin Laden, in a non-combat setting that was essentially a hideaway with little operational significance in the broader counterterrorist campaign. Obama expressed this sense of accomplishment in terms of striking names from a kill list: “Today, Osama bin Laden is dead, and so are most of his top lieutenants.” This outcome is not a result, as in past wars, of military encounters, but rather a consequence of targeted killing programs.
It is in this setting that the speech turns to the controversy generated by the reliance on drones, which has increased dramatically since Obama came to the White House. He affirms in vague and abstract language that “the decisions that we are making now will define the type of nation—and world—that we leave to our children. . . . So America is at a crossroads. We must define the nature and scope of this struggle, or else it will define us.” In an effort to refocus the struggle against global terrorism, Obama offers some welcome downsizing language: “. . . we must define our effort not as a boundless ‘global war on terror,’ but rather as a series of persistent, targeted efforts to dismantle the specific networks of violent extremists that threaten America.” Yet there is no explanation offered as to why the struggles for political control in far-flung places such as Yemen, Somalia, Mali, even the Philippines should be considered combat zones from the perspective of American security. Surely, to introduce American military power in what appear to be struggles to control the internal political life of a series of countries does not create grounds in international law for recourse to war.
It is not that Obama is rhetorically insensitive to these concerns,15 but it is his steadfast unwillingness to examine the concrete realities of what is being done in the name of America that makes his rosy picture of drone warfare so disturbing and misleading. Obama asserts that “[a]s 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 US law and international law; about accountability and morality.”16 Yes, these are some of the issues, but the responses given are little better than bland evasions of the legal and moral concerns raised. The basic argument put forward is that drone warfare has been effective and legal. Both contentions are subject to severe doubts that are never addressed in concrete terms that would be appropriate if Obama really meant what he said about confronting hard questions.17
His defense of legality is typical of the overall approach. Congress gave the Executive broad, virtually unrestricted authority to use all necessary force to address the threats unleashed after the 9/11 attacks, thus satisfying domestic constitutional requirements of separation of powers. Internationally, Obama sets forth some arguments about the right of the United States to defend itself before asserting, “So this is a just war—a war waged proportionally, in last resort, and in self-defense.” It was here that he could have raised some skeptical questions about the attacks on the World Trade Center and Pentagon as being regarded as ‘acts of war’ rather than crimes of such severity as to be ‘crimes against humanity.’ There were alternatives to recourse to war accompanied by a claim of self-defense against the transnational terrorist network that al-Qaeda appeared to be that might have been explored, if not adopted, back in 2001. Such a reclassification of the security effort as of 2013 could have re-raised the fundamental question or, more modestly, de-escalated the counterterrorist undertaking from war to a fight against transnational crime.
Obama failed to seize such an opportunity. Instead, he presented a deceptively abstract set of responses to the main public criticisms of drone warfare as concept and practice. Obama claims, despite the growing body of evidence to the contrary, that drone use is constrained by “a framework that governs our use of force against terrorists—insisting upon clear guidelines, oversight and accountability that is now codified in Presidential Policy Guidance.”
It followed similar lines to those taken by John Brennan in a talk at the Harvard Law School a year or so earlier. Brennan was then serving as Obama’s chief counterterrorism advisor. He stressed the dedication by the US government to adherence to the rule of law and democratic values that have given American society its distinctive shape: “I’ve developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe.”18 Brennan, while claiming to do all that can be done to protect the American people against these threats from without and within, reassured his law school audience but in a manner that includes “adhering to the rule of law” in all undertakings, with explicit mention of “covert actions.” But what is meant here is clearly not to refrain from uses of force prohibited by international law, but only that the covert undertakings that have become so much a part of Obama’s “war on terror” do not exceed “authorities provided to us by Congress.” In a rather sly sleight of mind, Brennan identifies the rule of law only with domestic legal authority while seeming to rationalize uses of force in various foreign countries. When it comes to the relevance of international law, Brennan relies on self-serving constructions of legal reasonableness to contend that a person can be targeted if viewed as a threat even if far from the so-called hot battlefield, that is, anywhere in the world is potentially part of the legitimate war zone.19 Such a claim is deeply deceptive, as drone use in countries such as Yemen and Somalia are not only far from the hot battlefield; their conflicts are essentially entirely disconnected.
The claim of the Obama presidency is that drones target only those who pose a threat, that great care is taken to avoid collateral civilian damage, and that such a procedure produces fewer casualties and devastation than would result from prior approaches that rely on the cruder technologies of manned aircraft and boots on the ground. Obama addressed the awkward question of whether it is within this mandate to target American citizens who are acting politically while resident in a foreign country. Obama used the case of Anwar al-Aulaqi, the Islamic preacher, to justify the decision to kill him, pointing to his alleged connections with several failed attempted terrorist acts in the United States: “. . . when a US citizen goes abroad to wage war against America . . . citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a SWAT team.”20 Yet such an explanation does not respond to critics as to why prior to the assassination no charges against al-Aulaqi were put before some sort of judicial body, allowing for a court-appointed defense, to ensure that ‘due process’ within the group deciding on targets was not just a rubber stamp for CIA and Pentagon recommendations, and certainly why there cannot be a full post-facto disclosure of evidence and rationale.21
More disturbing, because it suggests bad faith, was Obama’s failure to bring up the much more problematic drone targeting of a group of young people in a different part of Yemen from where the drone stuck Anwar al-Aulaqi. The targeted ground included Aulaqi’s sixteen-year-old son, Abdulrahman al-Aulaqi, a cousin, and five other children while they were preparing an open air barbecue on October 14, 2011, three weeks after the drone killed Abdulrahman’s father. The grandfather of Abdulrahman, an eminent Yemeni who was a former cabinet minister and university president, tells of his frustrating efforts to challenge in American courts the reliance on such hit lists and the absence of accountability even in such extreme cases.22 It is this sort of incident that highlights why the whole claim of effectiveness of drones is under such a dark cloud of incredulity. The younger al-Aulaqi seems to have been the victim of what military jargon calls a ‘signature strike,’ that is, a hit list directed not at designated individuals, but at a group that CIA or Pentagon analysts find sufficiently suspicious to justify their lethal elimination. Notably, Obama never mentioned signature strikes in his talk, much less committed the government to end such targeting. This undermines his whole claim that targeting is responsibly conducted under his personal direction and done in an extremely prudent manner that limited targets to so-called high-value individuals posing direct threats to US security and to arranging any attack so as to eliminate to the extent possible indirect damage to civilians. This whole line of rationalization is deceptive, as drone strikes, by their nature, cause deep fears to the whole community, and thus even if only the single targeted individual is killed or wounded, the impact of the strike is felt much more widely in space and for a long duration.
There are two other matters in the Obama speech that bear mention. His central logic is one of giving priority to protecting the American people against all threats, including the homegrown ones of the sort illustrated by the Fort Hood shooting and Boston Marathon bombings, and yet he affirms that no American president should ever “deploy armed drones over US soil.”23 First of all, what if there is a protection or enforcement imperative? Secondly, there is a seeming approval given, at least tacitly, to unarmed drones, which means surveillance from the air of domestic activities. Also dubious is Obama’s way of acknowledging that American diplomats face security threats that exceed those faced by other countries, explaining that “[t]his is the price of being the world’s most powerful nation, particularly as a war of change washes over the Arab world.” Again the vague abstraction never yields to the concrete: Why are American diplomats singled out? Are there legitimate grievances against the United States, which if removed, would enhance American security even more than by making embassies into fortresses and carrying out drone attacks anywhere on the planet provided only that the president signs off? Are America’s imperial claims relevant? What about the global surveillance program disclosed in the government documents released by Edward Snowden? Again the abstractions are fine, sometimes even clarifying, on their own detached plane of discourse, unless and until compared with the concrete enactments of policies, which are enveloped in darkness, that is, deprived of light. In encouraging tones, after providing a rationale for continuing a wartime approach, Obama does observe at the end of his speech that this war “like all wars, must end. That’s what history advises, that’s what our democracy demands.” He finishes with an obligatory patriotic flourish: “That’s who the American people are—determined, and not to be messed with.” Brennan chose almost identical words in ending his Harvard Law School speech: “As a people, as a nation, we cannot—and must not—succumb to the temptation to set aside our laws and values when we face threats to our security . . . We’re better than that. We’re Americans.”24 The sad point is that the abstractions are decoys. Sadly, precisely what we have done is what Obama and Brennan say we must never do in relation to law and values.
Turning to the counter-narrative in which the reality of drone warfare is presented in an entirely different mode does not necessarily imply a total repudiation of drone warfare, but it does insist that such tactics and their current implementation are not fairly or honestly reported, and as such, cannot be readily reconciled with constitutional or international law or with prevailing moral standards. The critics of the mainstream Washington discourse can be faulted for tending to presume that there is no way to scale back reliance on drones in a manner that is sensitive to the limitations of law and morality rather than to dwell only on the abusive and dangerously dysfunctional ways in which drones have been and are being used by the US government. In other words, if the basic fallacy of the pro-drone children of light discourse is to keep the focus on an abstract level that ignores the existential challenges by the actual and potential patterns of use, the complementary fallacy of the children of darkness scenario is to limit this commentary to the concrete level that neglects the legitimate security pressures that motivate reliance on drones and their counterparts in the domain of ‘special operations’ with a lineage that can be traced back to World War II, if not earlier. An appropriate discourse on drones would involve a synthesis that combined an assessment of their utility as weapons given the sorts of conflicts that are present in today’s world and adherence to principles of law and morality that are supposed to set limits on how force is used for the sake of national and international security. As always in such an inquiry, security justifications and normative principles of law and morality should seek some sort of dynamic balance that takes account of the complexities involved. It would have been helpful if Obama had rejected the hypothesis of how to conduct a borderless war and instead defined the threat posed by political extremism as one of borderless crime. He also should have worried more about the implications of this American decision to validate its reliance on robotic approaches to conflict, especially as a precedent for others to follow.
This is undoubtedly what Dick Cheney meant when he said that for the United States to be effective in a post-9/11 world it would have to act on “the dark side.” The initial disseminators of the children of darkness discourse were actually unabashed in their embrace of this imagery and accompanying policies. Indeed, it was Cheney himself who articulated the positive rationale in a September 16, 2001, interview on Meet the Press: “We also have to work, though, sort of the dark side, if you will. We’ve got to spend time in the shadows of the intelligence world . . . That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.”25 What this meant in real time was reliance on torture and kill lists, and either the sidelining of legal constraints or warping them out of shape to validate policies.26 It meant reliance on “black sites” in a series of countries that would allow the CIA to operate their own secret interrogation centers, and would not raise questions. It led to ‘extraordinary rendition,’ transferring suspects to governments that would engage in torture beyond what was evidently acceptable under direct American auspices. Donald Rumsfeld’s motivations in a vast expansion of the Pentagon Special Access Program for Joint Special Operations Command (JSOC) was partly to avoid further dependence on the CIA because dark side initiatives were, in his words, being “lawyered to death.”27 When the PBS TV documentary series Frontline presented its depiction of the “war on terror” associated with the neoconservative presidency of George W. Bush in 2008, it chose the title “The Dark Side,” as did Jane Mayer in her searing critique of the tactics employed by the Cheney/Rumsfeld designers of the governmental response to 9/11.28 It is not surprising that Cheney even seemed comfortable with being cast as the personification of evil in the popular culture by way of the Star Wars character Darth Vader.29
As is well known by now, 9/11 facilitated a prior resolve by Cheney and Rumsfeld to concentrate war powers in the presidency and to project American power globally on the basis of post-Cold War strategic opportunity and priorities, without regard for limitations of sovereignty or the restraints of international law. Their goal was to preside over a revolution in military affairs that would bring warfare into the 21st century, which meant minimizing conventional weapons and tactics, which produced casualties and domestic political resistance to an aggressive foreign policy and meant relying on technological and tactical innovations that would have surgically precise capacities to defeat any enemy anywhere on the planet. September 11th was at first a puzzle as the neocon grand strategy was devised to achieve quick and cheap victories against hostile foreign governments on the model of the Gulf War in 1991, but with an increased willingness to be politically ambitious in imposing the kind of political outcomes that would enhance US global dominance. What had not been anticipated, however, and struck fear in many hearts, was that the main hostile political actors would turn out to be non-state actors whose forces were dispersed in many places. Adapting to that kind of security threat is what brought the dark side tactics front and center; as human intelligence was indispensable, the main perpetrators could hide anywhere, including within the United States. Because their presence was often intermingled with the civilian population, there would either have to be indiscriminate violence or precision attained through targeted killing. It was here that special operations, such as the killing of Osama bin Laden, and drone warfare became the tactics and means of choice. And it is here that the counter-terrorist, despite being shrouded in a cloak of darkness, becomes a deadly species of terrorist. The political extremist who blows up public buildings is not essentially different from the governmental operative who launches a drone or goes on a kill mission, although the extremist makes no claim of targeting precision and appears to accept no responsibility for indiscriminate killing.
In reaction to the degree of continuity exhibited by the Obama presidency, despite its reliance on the children of light discourse, liberal critics have tended to focus on the behavior of the state as characterized by its reliance on dark side tactics. Authors such as Jeremy Scahill and Mark Mazetti discuss the degree to which the essential features of the Cheney/Rumsfeld worldview have been sustained, even extended, during the Obama presidency: a war in the shadows; a global battlefield; surveillance of suspects who are defined to include anyone, everywhere; conception of imminent threat as potentially anyone (including American citizens) within or without the country; accelerated reliance on drone strikes as authorized by the president; and targeted killing as “the battlefield” acknowledged by Obama pointing to the execution of Osama bin Laden as the high point of his success in the war against al-Qaeda and its affiliates. There are some refinements in the conduct of the war on terror: The emphasis is placed on non-state adversaries, and the regime-changing warfare against state actors is terminated; torture as a tactic is pushed deeper into the darkness, meaning it is repudiated but not eliminated (e.g., force-feeding controversy at Guantánamo). In other words, the children of darkness still control “the real” conflict, dramatically confirmed by the treatment of such whistleblowers as Bradley (Chelsea) Manning and Edward Snowden. The liberal discourse of the children of light calms American society but evades the fundamental challenges being directed at international law and world order by the ongoing tactics of the Obama approach to a continuing war in response to 9/11 (that is, to date, implicitly sharing the Cheney view that it would be a gross mistake to treat “terrorism” as a crime rather than as “war”).
The central debate about drone warfare focuses on issues of style and secrecy, and downplays matters of substance. Both children of light (representing the Obama presidency and liberal supporters) and children of darkness (the Cheney/Rumsfeld cabal) are unapologetic advocates of the military use of drones, ignoring the problems of such weaponry and tactics from the perspectives of international law and world order. To underscore this contention, the introductory references to nuclear weapons are relevant. For drones, the idea of first-order constraints of drones based on unconditional prohibition and disarmament to ensure non-possession seems outside the scope of debate. Given the rise of non-state political actors with transnational agendas, the military utility of drones is so great that any project seeking their prohibition would be implausible.
The same situation pertains to second-order constraints associated with controls on their dissemination comparable to the nonproliferation approach. Already drones are too widely possessed, the technology too familiar, and the practical uses for a range of states too great to suppose that any significant sovereign state would forgo the advantages associated with the possession of drones, although the deployment of attack drones may lag for a period of time depending on the perception of security threats by various governments. Therefore, the best that can be hoped for at this time are certain agreed-upon guidelines relating to use, what might be called third-order constraints similar to the way in which the law of war has affected the conduct of hostilities in a manner that gives way to the perceived requirements of ‘military necessity.’
The world order issues have also been evaded in the unfolding debate on the use of drones, never being mentioned in the Obama speech of May 23 and only acknowledged indirectly in the Cheney/Rumsfeld view of the post-9/11 terrain of warfare. In short, the treatment of the 9/11 attacks as “acts of war” rather than “crimes” has more enduring significance than the attacks themselves. It leads almost thoughtlessly to viewing the world as a global battlefield, and to a war that has no true end point, as has been the case in past wars. In effect, it submits to the logic of perpetual war, and the related acceptance of the idea that everyone, including citizens and residents, are potential enemies. Since the suspicion is fueled by intelligence gathering, which is done secretly, the primacy given to protecting the nation and its population gives to political leaders and unaccountable bureaucracies a license to kill, to impose extrajudicial capital punishment without the intervening due process steps of indictment, prosecution, and trial. As time passes, this authoritarian nexus of governmental power as it becomes normalized undermines both the possibility of “peace” and “democracy,” and necessarily institutionalizes “the deep state” as standard operating procedure for contemporary governance. If linked to the consolidation of capital and finance in plutocratic patterns of influence, the advent of new variants of fascism becomes almost inevitable, whatever the shape of the global security system.30 In other words, drones reinforce other trends in world order that are destructive of human rights, global justice, and the protection of human interests of global scope. These trends include large investments in secret global surveillance systems that scrutinize the private lives of citizens at home, a wide range of persons abroad, and even the diplomatic maneuverings of foreign governments on a basis more extensive and intrusive than traditional espionage.
There are certain specific effects of drone warfare that exert a strain on the efforts of international law to constrain uses of force and regulate the conduct of war. Some children of light critics of the official policies have raised questions as to the scope of permissible use of drones, not challenging drones, per se, but their mode of authorization and the rules of engagement pertaining to their use.
A prime effort of modern international law has been to discourage recourse to war to resolve international conflicts that emerge between sovereign states. In many respects, that undertaking has been successful in the relations among major states with respect to international wars as distinct from internal wars. The destructiveness of war, the diminishing importance of territorial expansion, and the rise of a globalized economy have made this idea of war as a last resort an important achievement of the latest phase of state-centric world order. Such an achievement is now at risk due to the rise of non-state transnational violence and the response by way of drones and special forces that operate without regard to borders. What this means is that international warfare becomes more and more dysfunctional, and the war mentality is shifted to the new wars waged by a global state against non-state political actors. And these wars, which are largely conducted behind a thick veil of secrecy, and with low risks of casualties on the side relying on drone attacks, make recourse to war much less problematic: the public does not have to be convinced, congressional approval can be achieved in secret sessions, and there are no likely US military casualties or vast diversions of resources. Such wars become cheap and easy.
There had always been some tendency for the tactics of warfare to involve explicit reliance on state terror, that is, military force directed at the civilian population. The indiscriminate bombing of German and Japanese cities during the last stages of World War II was one of the most extreme instances, but the German blockades of Soviet cities, rockets fired at English cities, and the rise of submarine warfare against ships carrying food and humanitarian supplies to civilian populations were other prominent examples. Yet the type of “dirty wars” undertaken after 9/11 embraced state terror as the essence of the dark side conduct of the effort to destroy the al-Qaeda network, and indeed undertake the destruction of so-called terror networks of global reach. As American operations in Yemen and Somalia suggest, the notion of “global reach” has been replaced by armed movements or groups with an Islamic identity even if the scope of their ambitions is confined to national borders, posing no threat, imminent or otherwise, to American national security. This tension, between treating anti-state “terrorism” as the worst form of criminality—one that suspends legal protections to those accused—while claiming to engage in comparable forms of violence, serves to deprive international law of its normative authority, which is based on some degree of ethical parity with respect to behavioral standards. Until the Cheney/Rumsfeld embrace of secret war by assassination, the United States did not follow Israel’s adoption of terror to fight terror, which had evolved from the shadows of Israeli policy to an outright avowal of legality in 2000 (after years of disavowal). In addition to the tactical adoption of a terrorist approach to weakening the enemy, there is the terrorizing of the society as a whole that results from experiencing repeated drone attacks. That is, it is not only the targeted individual or group, but the experience of having such drone strikes that creates acute anxiety and severe disruption within the communities that have been attacked.31
Both the international human rights law and the international law of war prohibit extrajudicial executions. There is insistence that such targeting is legal if the threat is perceived as substantial and imminent, as determined by secret procedures, not subject to post-facto procedures of investigation and potential accountability. The reliance on such a process for the legalization of practices associated with drone warfare and special operations does two types of damage to international law: (1) it situates targeted killing beyond the reach of law, and is dependent on the non-reviewable discretion of government officials, including the subjective appreciation of threats (such a rationale is basically one of “trust us”); and (2) it substantially erodes the prohibition on targeting civilians not engaged in combat operations, and at the same time eliminates the due process arguments that those charged with crimes are entitled to a presumption of innocence and right of defense. As a result, both the customary international law distinctions between military and non-military targets is weakened and the human rights effort to protect civilian innocence is completely disregarded. Also, the underlying contention that extra-judicial targeted killing is done sparingly and in the face of imminent threat as underpinning the claim of “reasonableness” is unreviewable because of the secrecy surrounding these uses of drones, and the critical independent assessments of actual patterns of use do not support government claims of responsible behavior. That is, even if the argument is accepted that the law of war and human rights law must bend in relation to imminent security threats, there is no indication that such constraints have been or will be observed in practice. The criterion of imminence, even if interpreted in good faith, is notoriously subjective.
The most fundamental argument with respect to drone warfare is that given the nature of the threats posed by political extremists pursuing transnational agendas and situated anywhere and everywhere, preemptive tactics must be authorized as components of the inherent right of self-defense. Reactive tactics based on retaliation in the event that deterrence fails are not effective, and since the destructive capabilities of non-state actors pose credible major threats to peace and security of even the strongest of states, preemptive strikes are necessary and reasonable. Such subjectivity surrounding threat perception, as applied in relation to drone warfare, undermines the entire effort to limit international uses of force to objectively determined defensive claims that can be reviewed as to reasonableness. This was the central claim of the United Nations Charter, and its abandonment represents a return to an essentially discretionary approach to uses of force and recourse to war.
An essential feature of the law of war is the idea of precedent and the acceptance of the reciprocity principle that what is claimed as legal by a dominant state cannot be denied to a weaker state for clear exposition of the logic of reciprocity.32 The United States established such a precedent by recourse to atmospheric testing of nuclear weapons, and was not able to complain when other countries, including France, Soviet Union, and China, later tested their own weapons, although by that time the United States was limiting its own testing to underground sites with less damaging environmental effects. With patterns of drone use, however, the world would be chaotic if what the United States is claiming is lawful for its undertakings with drones is undertaken by other states. It is only an imperial relation of the United States regarding uses of force that can be projected into the future as a sustainable basis of world order, and as such, it implies a repudiation of Westphalian notions of the juridical equality of states. The drone debate has been embedded in a legal culture that takes American exceptionalism for granted.
In significant respects, the Cold War converted the world into a global battlefield, with the CIA managing covert operations in foreign countries as part of the struggle against the spread of Communist influence (“warriors without borders”). After 9/11, this globalization of conflict was renewed in a more explicit form, and directed particularly at the security threats posed by the al-Qaeda network that was declared to exist in as many as sixty countries. As the threats emanated from non-territorial bases of operations, secret intelligence, sophisticated surveillance, and identification of dangerous individuals living as civilians amid civilian society became the prime focus of interest. Foreign governments, most notably Pakistan and Yemen, were induced to give their confidential consent for drone strikes within their own territory, which were the subject of explicit rebuke and protest. Such patterns of “consent” eroded the autonomy of many sovereign states, and generated intense distrust in the relations between the state and the people. It also raises questions about whether this muffled form of consent provides adequate justification for such erosions of the political independence of sovereign states.
The American claim has been that it has the legal option to use drones against targets that pose a threat if the foreign government is unwilling or unable to take action on its own to remove the threat, with the underlying legal presupposition being that a government has an obligation not to allow its territory to be used as a launching pad for transnational violence. What becomes clear, however, is that both the globalizing of conflict, and of threats and responses, are incompatible with a state-centric structure of law. If a legal order is to persist under these conditions, it must be globalized, as well, but there is an insufficient political will to establish and empower global procedures and institutions with such effective authority. As a result, the only alternatives seem to be an inchoate imperial regime of the sort that presently prevails, or an explicit global imperial regime that repudiates in explicit form the logic of reciprocity. This has not yet happened.
Drone warfare carries forward various tactics of warfare that are virtually without human risk for the more technologically powerful and sophisticated side in an armed conflict, and has assumed recent prominence due to the tactics and weaponry employed by Israel and the United States. A pattern of one-sided warfare has resulted that shifts the burdens of warfare to the adversary to the extent possible. To a degree, such a shift reflects the nature of warfare that seeks to protect one’s own side to the extent possible from death and destruction, while inflicting maximum damage on the other side. What is distinctive in the recent instances of military intervention and counterterrorism, the two main theaters of combat, is the one-sidedness of the casualty figures. A series of military operations is illustrative of this pattern: Gulf War(1991); NATO Kosovo War(1999); Iraq Invasion (2003); NATO Libya War (2011); and Israeli military operations against Lebanon and Gaza (2006; 2008–09; 2012; 2014). The increasing use of attack drones in Afghanistan is a culminating example of one-sided warfare, removing the drone operational crew from the battlefield altogether, and executing strikes by commands issued from remote operational headquarters (e.g., in Nevada). The repudiation of torture as an acceptable tactic of war or law enforcement partly reflects the one-sidedness of the relationship between the torturer and the victim as morally and legally objectionable, aside from liberal arguments contending that torture is ineffective.33 An analogous set of reactions to drone warfare exists, including the liberal contention that the rage and resentment of a population subject to drone attack encourages the very kind of political extremism that drones are deployed against, as well as alienating foreign governments.
While the politicians are preoccupied with responding to immediate threats, the arms makers and Pentagon advance planners are exploring the technological frontiers of drone warfare. These frontiers are synonymous with science fiction accounts of robotic warfare with ultra-sophisticated weaponry and massive killing machines. There are possibilities of drone fleets that can conduct belligerent operations with minimal human agency, communicating with one another to coordinate lethal strikes on an enemy, which may also be armed with defensive drones. The reliance on drones in current patterns of warfare has the inevitable effect of devoting attention to what can be done to improve performance and to develop new military missions. Whether the technological momentum that has been released can be controlled or confined seems doubtful, and again the comparison with nuclear military technology is instructive. Yet it is important to keep in mind that drones are considered usable weapons, including for legal and moral reasons, while so far nuclear weapons are treated as non-usable except conceivably in ultimate survival situations.
Four lines of conclusion emerge from this overall assessment of the impact of drone warfare, as practiced by the United States, on international law and world order. First, it is not plausible to eliminate drones from the warfare so long as the security of states is based on a military self-help system. As a weapons system, given the current threats posed by non-state actors and the memories of 9/11, drones are too effective. In any event, the technological momentum and commercial incentives are too great to halt.34 As a result, such first-order international law constraints, as an unconditional prohibition as adopted in relation to biological and chemical weapons, and proposed in relation to nuclear weapons, is not plausible.
Secondly, the debate on the legality of drone warfare has been carried on within an American context in which the risks of setting precedents and the dangers of future technological developments is accorded minimal attention. This debate has been further trivialized by being conducted mainly between those who would cast aside international law and those who stretch it to serve changing national security priorities of American foreign policy.
Thirdly, the debate on drones seems oblivious to the world order dimensions of creating a global battlefield and coercing the consent of foreign governments.
Fourthly, the embrace of state terror to fight against non-state actors makes war into a species of terror and tends toward making limits on force seem arbitrary, if not absurd.
It is against this background that the counter-intuitive argument is put forward seriously to the effect that drone warfare is, and is likely to become, more destructive of international law and world order than is nuclear warfare. Such a contention is not meant to suggest that reliance on nuclear weapons would somehow be better for the human future than the acceptance of the logic of drone use. It is only to say that so far, at any rate, international law and world order have been able to figure out some regimes of constraint for nuclear weapons that have kept the peace, but have not been able to do so for drones, and will be unlikely to do so as long as the logic of dirty wars is allowed to control the shaping of national security policy in the United States.
1 On the workings of the state-centric world order, see Hedley Bull, The Anarchical Society: A study of order in world politics (Columbia Univ. Press, 2d ed., 1995); Robert O. Keohane, After Hegemony: Cooperation and discord in the world political economy (Princeton Univ. Press, 1984); the vertical axis of world order reflects the inequality of states, and the special role played by dominant states; the horizontal axis embodies the juridical logic of equality among states that is the foundation of the international rule of law. First-order constraints would entail the prohibition of nuclear weaponry and a phased and verified disarmament process that eliminated nuclear weapons. For critiques of the failures of diplomacy to achieve first-order constraints, see Richard Falk & David Krieger, The Path to Zero: dialogues on nuclear dangers (Paradigm, 2012); Richard Falk & Robert Jay Lifton, Indefensible Weapons: The psychological and political case against nuclearism (Basic Books, 1982); Jonathan Schell, The Fate of the Earth (Knopf, 1982); E.P. Thompson, Beyond the Cold War: A new arms race and nuclear annihilation (Pantheon,1982).
2 The standard rationale of the deterrence doctrine credits it with maintaining stability during the Cold War, and John Mearsheimer even credits deterrence with preventing World War III. For the worldview that endorses such extreme political realism, see Mearsheimer, The Tragedy of Great Power Politics (Norton, 2001); see also Mearsheimer, Back to the Future, International Security 15 (No. 1):5–56 (1990). It is true that for certain isolated smaller and medium-size states, nuclear weapons can operate as an equalizer and offset the vertical dimension of world order. There is also a role played by nuclear weapons in threat diplomacy that has been explored by many authors. See Alexander George & William Simons, eds., Limits of Coercive Diplomacy, (Westview Press, 2nd ed., 1994). Other authors pushed rationality to frightening extremes so as to find ways to take practical advantage of American superiority in nuclear weaponry. See Henry Kissinger, Nuclear Weapons and Foreign Policy (Doubleday, 1958); Herman Kahn, On Thermonuclear War (Princeton Univ. Press, 1960).
3 The arms control regime, despite its managerial rationale, has always rejected any prohibition on first-strike options, and thus casts doubt on the morality and practical contributions of such second-order constraints.
4 The nonproliferation regime, embodied in the Nuclear Nonproliferation Treaty (NPT) (729 U.N.T.S. 10485), is a prime instance of a vertical arrangement, allowing only the dominant states to retain nuclear weapons, and is the main form that second-order constraints have taken. It is relevant to note that the International Court of Justice, in its important Advisory Opinion of 1996, offered the view in its majority opinion that a use of nuclear weapons might be lawful, but only if the survival of the state was credibly at stake. In what seems a futile gesture, the judges were united in their belief that the nuclear weapons states had a clear legal obligation in Article VI of the NPT to engage in good-faith disarmament negotiations, suggesting a legalistic horizontal element that is likely to have no behavioral impacts. The nuclear weapons states, above all the United States, have treated this authoritative statement of the bearing of international law as essentially irrelevant to their attitude toward the role of nuclear weapons in national security policy.
5 Early in his presidency President Obama gave hope to those who had long sought the elimination of nuclear weapons when he spoke in favor of a world without nuclear weapons, but hedged his visionary statement with subtle qualifications that made it unlikely to proceed very far. See President Barack Obama, Remarks by President Barack Obama in Prague (April 5, 2009); the liberal-realist view insists that nuclear disarmament is a desirable goal, but must not occur in the face of unresolved international conflicts. It is never made clear when the time will be right, which has the quality of a utopian precondition that precludes the morally, legally, and politically compelling arguments for nuclear disarmament. For a typical statement of such a mainstream liberal outlook, see Michael O’Hanlon, Skeptic’s Case for Nuclear Disarmament (Brookings, 2010).
6 Among others, see Robert Jay Lifton, Superpower Syndrome: America’s apocalyptic confrontation with the world (Nation Books, 2002); for a reluctant endorsement of the nuclear weapons status quo, see Joseph Nye, Nuclear Ethics (Free Press, 1986).
7 There are two extreme orientations toward normativity in world politics—the Kantian tradition of skepticism about international law, but affirmation of international morality, versus the Machiavellian tradition of calculative and self-interested behavior that rejects moral as well as legal authority in the conduct of state politics. A contemporary master of the Machiavellian approach was Henry Kissinger, an approach he proudly acknowledged in Kissinger, Diplomacy (Simon & Schuster, 1994).
8 Despite their increased participation in all aspects of international life, non-state actors remain on the outside of the circle of Westphalian political actors, who limit membership in the United Nations and most international institutions to sovereign states.
9 For views that international humanitarian law and the law of war generally are dubious contributions to human well-being, as they tend to make war an acceptable social institution, see Richard Wasserstrom, ed., War and Morality (Wadsworth, 1970); see also Raymond Aron, Peace and War: A theory of international relations (Weidenfeld & Nicolson, 1966); Richard Falk, Legal Order in a Violent World (Princeton Univ. Press, 1968).
10 Chiaroscuro is usually defined as the treatment of light and darkness in painting; in the sense used here, it refers to the contrasts of light and dark in the perceptions of the American global role.
11 The political leadership of states is legitimized by free elections, law and order, development as measured by growth rates, and executive political skills, including communication with the public, and only secondarily by fidelity to law and morality. Such an observation is even more accurate when applied to foreign policy, and more so yet if a state of war prevails.
12 For classic exposition, see Reinhold Niebuhr, Children of Light and Children of Darkness (Scribners, 1960).
13 See Kissinger & Kahn, supra Note 2, who, among others, contended in Cold War contexts that nuclear weapons were needed to offset the alleged conventional superiority of the Soviet Union in the defense of Europe, and that the human and physical costs of a regional nuclear war were an acceptable price to pay. This illustrates the extremes to which realist thinkers have been prepared to go on behalf of strategic goals.
14 President Barack Obama, Remarks by the President at the National Defense University (May 23, 2013) (transcript available at www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-university).
15 Lisa Hajjar, Anatomy of the US Targeted Killing Policy, MER 264 (2012).
16 Obama, supra note 14.
17 For instance, there is no consideration of the disruption of tribal society, as in Pakistan, through the use of drones or the “blowback” in countries such as Pakistan from what appear to the public to be flagrant violations of national sovereignty. For important depiction of impact of drone warfare on tribal societies, see Akbar Ahmed, The Thistle and the Drone: How America’s war on terror became a global war on tribal Islam (Brookings Inst. Press, 2013); for general assessment of blowback costs of relying on drones, see Jeremy Scahill, Dirty Wars: The world as a battlefield (Nation Books, 2013); along similar lines, see Mark Mazzetti, The Way of the Knife: The CIA, a secret army, and a war at the ends of the earth (Penguin, 2013).
18 Before Brennan, it was Harold Koh, Legal Advisor to the Secretary of State, who set forth a legal rationale for reliance on drones in an address given at the American Society of International Law, March 25, 2010.
19 John Brennan, Assistant to the President, Homeland Security, Strengthening Our Security by Adhering to Our Values and Laws (Sept. 16, 2011), www.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-an.
20 Obama, supra note 14.
21 See Jeremy Scahill, supra note 17 (discussing the non-indictment of al-Aulaqi.)
22 See Kebriaei chapter 10.
23 Obama, supra note 14.
24 Brennan, supra note 19.
25 Meet the Press: Dick Cheney (NBC television broadcast Sept. 16, 2001), www.fromthewilderness.com/timeline/2001/meetthepress091601.html.
26 For texts and commentary on torture during the Bush presidency, see David Cole, ed., The Torture Memos: Rationalizing the Unthinkable (New Press, 2009).
27 See Scahill, supra note 17, at 1551.
28 Jane Mayer, The Dark Side (Doubleday, 2008); see also Laleh Khalili, Time in the Shadows: Confinement in counterinsurgencies (Stanford Univ. Press, 2013).
29 In this connection, it is worth noting that Richard Perle, the intellectual standout in the Lilliputian world of neocons, was dubbed “the prince of darkness,” which was treated in the media as part comedy, part opprobrium, and part honorific in view of his influence.
30 For an analysis along these lines, see Sheldon Wolin, Democracy Incorporated: Managed Democracy and the Specter of Totalitarianism (Princeton Univ. Press, 2008).
31 For detailed documentation, see Ahmed, supra note 17.
32 See David Cole, A Secret License to Kill, NYR Blog (Sept 19, 2011, 5:30 PM), www.nybooks.com/blogs/nyrblog/2011/sep/19/secret-license-kill/.
33 For elaboration, see Richard Falk, Torture, War, and the Limits of Liberal Legality, in The United States and Torture: Interrogation, Incarceration, and Abuse 119 (Marjorie Cohn ed., NYU Press, 2011).
34 For useful discussion and documentation, see Medea Benjamin, Drone Warfare: Killing by remote control (Verso, rev. ed., 2013).