Right now, the United States and the larger
international community is caught in a difficult debate over the use of drones
against enemy combatants. Domestically, there is an odd confluence of views.
The Obama administration’s policy on drones has been congenial to the
conservatives, who oppose him on domestic issues; but his liberal allies, like
the American Civil Liberties Union, are dismayed by what they perceive as his
administration’s overuse of drones in Pakistan from 2004 to 2012. Has the
United States pushed its drone attacks too far or not far enough? Have too many
potential targets escaped attack because of an undue fear of excessive
“incidental” or collateral damage to the lives and property of innocent
non-combatants?
In this debate, the place to start is with libertarian
thought, because it puts the use of force front and center. The root premise of
libertarian theory is that no individual is allowed to use force or fraud,
alone or in combination, to advance his personal interests over those of
others—except in self-defense. The same basic rule is also a bedrock principle
of international law. That one indispensable but pesky exception of
self-defense complicates both domestic and international affairs. The domestic
issues are hard; the international ones, almost impossible.
Self-Defense
and Just War Theory
The
jurist Hugo
Grotius, in his 1625 masterpiece De iure belli ac pacis (On the law of
war and peace), sought to apply a natural law approach to the
problem of just war. Key to his inquiry is the need to reconcile the personal
imperative of self-preservation with the due recognition of the like rights of
other individuals, without which human society cannot survive.
Among
individuals, everyone accepts that a person can use force against actual force.
Yet, it is frequently unclear just how much force is needed to subdue a given
attack. Even in self-defense settings, the law has to worry about excessive and
disproportionate uses of force. No one should stand down against a threat of
death or serious bodily harm. But if the only way to avoid a pinprick is to
kill an adversary, the innocent victim has to forgo self-help to resist attack;
he must rely solely on an uneasy combination of private damage claims and
criminal sanctions to protect his interests. This imperfect legal regime lets
at least some lucky wrongdoers profit from their own wrongs.
The
requirement of imminent harm introduces still other complications. No one
should have to wait for the blow to land to respond to force, for by then it
may be too late. Conversely, moving too quickly may let people inflict harm
against persons who had no intention to carry out an attack. In general, the
law gives an uncertain advantage to the person who is under an apparent
assault. But it is all too easy for these rules to go astray in the confusion
that surrounds particular encounters. Just which party, in a heated dispute,
first moved from words to actions?
The
imminence requirement can also impose undue limits on the right of
self-defense. Many attacks are organized in advance of the actual blow. Even if
the potential victims are not in civil society, they are allowed to neutralize
their enemies before they attack. The state, when acting on their behalf, is
surely allowed to do so as well. Under the criminal law, the state can punish
not only attempts, but also conspiracies to commit violence, long before any
attack is mounted. In addition, the state can maintain all sorts of extensive
surveillance to spot and stop criminal actions before they can occur.
Just
War Theory Among Nations
Translating
these spongy principles of self-defense from private altercations to
large-scale disputes between states is difficult. The most obvious difference
between the two situations is that there is no unified supranational agency in
international affairs—the United Nations included—to mediate or control
disputes among sovereign nations. To be sure, nations can act alone to maintain
surveillance and initiate the use of force in self-help against their rivals.
But bad nations have the same options, so that these steps, standing alone, do
not offer an effective solution to a nation that must remain in a state of
constant military and intelligence readiness against foreign enemies, which
include both nations and rogue individuals who can strike at any time.
This
brings us back to the drones. These devices can both spy and strike against
enemies that are beyond the territorial reach of the United States or any other
threatened nation. Drones can be deployed long before any enemies are in a
position to strike against the United States or any of its allied nations. Yet
any preemptive attack could be imprecise and strike innocent individuals as
well as enemy combatants. In the international setting, the stakes are always
higher, the intermediate options are fewer, and the error rates in both
directions are always greater than in simpler domestic situations.
Miscalculations
are likely to draw in third nations, at which point the use of force may easily
spin out of control unless cooler heads prevail. To be uncomfortable with the
rules governing the use of force in domestic disputes is to suffer from
wholesale anxiety when facing the international landscape.
The
“Rule of Reason” on Self-Defense
So
what should be done? The first critical step is to rule out any categorical
position that allows or forbids drone attacks on a wholesale basis. The odds of
success, the value of the target, and the expected risk of collateral damage
vary too much from case to case to permit any uniform rule. My NYU colleagues,
law professors Samuel Issacharoff and Richard Pildes, hit the right tone in
their 2012 article “Targeted Warfare”: “It might well be that the uses
of lethal force, in the form of targeted killings of specific individuals
through measure like drone attacks, are more appropriate and justified against
high-level commanders than low-level foot soldiers.”
Their
position is exemplary for its equivocation—note the “might be,” the “more
appropriate and justified,” and the huge unexplored range of intermediate cases
between “high-level commanders” and “low-level foot soldiers.” Their
formulation thus raises as many questions as it appears to answer. But
that is exactly the right approach to take in this instance, for there is no
sensible way to reject their conclusion, which is broadly consistent with
President Obama’s current stance on drone use.
The
only workable legal regime for using drones rests on a porous “rule of reason”
that tries to make determinations—sometimes with ample deliberation and other
times on the fly—about whether a drone attack should be taken, in what form,
and at what time. The correct approach tries to set up a system of internal
reviews and safeguards in the executive branch to limit the risk of abuse.
Multiple moving parts make it virtually impossible to subject individual
decisions to either judicial or legislative oversight. Both are too slow to be
of any consequence and both get legislators and judges unhappily involved in
foreign affairs in individual cases. So the decision lies in the hands of the
executive parties that have to live with the political consequences of
disastrous outcomes, including denunciations from members of Congress delighted
not to be on the front lines.
There
are of course “easy” cases. No one did, or could, dispute Obama’s gutsy call to
take out Osama bin Laden, even though it involved a violation of Pakistani
airspace and carried the high risk of a very bad set of outcomes. By the same
token, the Israelis are right to insist that they can use aggressive means to
respond to the Hamas attacks, while constantly asking themselves whether or not
they made some serious mistakes along the way.
Drones
& Constitutional Complications
The
sobering conclusion of this analysis is that drone use will always lie on the
borderline of the rule of law. It is therefore highly improbable that anyone
could devise a workable system of constitutional rights to protect persons
against unlawful drone attacks by the U.S. or other sovereign nations. The ACLU
tends to attach more weight than most to due process and individual privacy. In
its Congressional testimony, it has taken the position that
some use of drones in international affairs is unconstitutional, especially
those targeted against United States citizens.
It
is likely that the ACLU’s position will gain traction before the courts of law
and the courts of public opinion. On the former, it is worth stressing
repeatedly that our major constitutional safeguards for individual rights
extend to all natural persons, whether citizens or aliens. The writ of habeas
corpus, for instance, is available to aliens as well as citizens. The Fifth
Amendment states that “no person shall be deprived of life, liberty or
property, without due process of law.”
In
ordinary criminal procedures, the foreigner cannot be convicted by a
preponderance of evidence standard when due process requires the government to
prove the key elements of the offense beyond a reasonable doubt. By the same
token, the word “due” has a self-conscious lack of precision, precisely
because, from the earliest times, it has been well understood that the same
level of process is not due in all types of cases. Thus it has been uniformly
held that in tax cases, for example, the government can take the money first
and only thereafter give the individual the right to dispute the tax. The
balance of convenience is such that the government need not run the risk of
taxpayers absconding with revenues so long as it is ready to make refunds in
the event that the taxpayer sues it to recover the money paid.
It
is even more evident that any process that is due on the battlefield in wartime
is far less demanding than that which is required in a civilian trial. When
potential criminals are arrested, a standard military procedure under the
Uniform Code of Military Justice requires all of the safeguards of a civilian
trial, even for cases tried outside the theater of war. Thus far, drone attacks
have only been ordered against individuals who refuse to submit to the
jurisdiction of the United States, and who are located outside of its
territory. Clearly, the United States should, and would, afford a trial to any
citizen that is prepared to surrender himself into the custody of the United
States. That same privilege should be afforded to any alien who is suspected of
having committed various crimes against the United States and its citizens
overseas.
The
potential targets of drone attacks have no intention of subjecting themselves
to the authority of the United States, so the only option left is to pursue
them in territories where the United States exerts no effective control. In
these settings, the futility of trial forces the government to take the
controversial military option.
In
dealing with that calculus, the United States could take citizenship into
account in making its decision. But which way should that cut? Does a citizen
deserve extra rights against the government that he has betrayed? Or should he
be subject to additional sanctions? There is no clear answer, which is why U.S.
policy on drone use for targeted attacks will remain an open wound in the body
politic. It is both frightening and necessary to have to place such extensive
trust in our public officials. But, when it comes to matters of national
security, there is no other choice.
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