How Civil Libertarians Should Think About Drone Warfare

by Jonathan Tkachuk

Much has been made regarding the increased use of drones by the U.S. government in its war against Al-Qaeda and other Islamist extremists. This seemingly detached method of warfare has been critiqued on the grounds that it is both ethically indefensible and strategically foolish. While both critiques deserve to be heard and considered, they do not outweigh the cumulative case for drone warfare.

Lt. Col. Pratt, USAF/AP

With respect to ethics, drone warfare represents a new brand of war: one in which hostilities can be initiated by an actor that at the same time bears no risk to the consequences of the initiation. Once a drone is sent to hit a human target, that target can neither respond in kind nor offer an explanation for its innocence. Unlike in ground combat, where ground forces employ tactics to verify both legitimate and illegitimate targets both before and during combat operations, drone warfare possesses limited ability to distinguish between legitimate and illegitimate targets.

With respect to strategic foolishness, the dilemma posed by drone warfare is the nature of its operations. It may come as a surprise to some that not all warfare is about killing one’s enemy. In addition to killing the enemy, ground combat forces also seek to capture the enemy should the enemy surrender willingly. Drone warfare on the other hand is a strictly lethal means of war; no prisoners will ever be taken by a drone attack.

Additional concerns also include the lack of an existing legal framework whereby this type of warfare can be made subject to the rule of law. Rather than providing a legal basis for this type of warfare, Congress has deferred the entire issue to the discretion of the executive branch. The notion that the executive can exercise the power of life and death over individuals, including American citizens, is the present reality. There exists at this time no formal check on the executive branch’s ability to kill any individual on the planet by way of drone warfare.

How then should civil libertarians, or anyone else concerned with the preservation of natural rights in a time of war, view drone warfare?

First, civil libertarians need to embrace the legitimacy of drone warfare. There is nothing inherently immoral about the use of drones in a combat environment. When used correctly, drones have proven to be a highly effective tool in the degradation of Al-Qaeda and other Arabian and South Asian Islamist networks. By “correctly” one simply means that the use of drones must 1) be subject to a pre-existing legal framework and 2) operate in tight coordination with its intelligence services, particularly its human intelligence (HUMINT) operations.

Second, civil libertarians need to understand that drone warfare is inherently less costly in terms of both dollars and lives.

Some might argue that drone warfare is immoral in that it only benefits Americans by literally removing Americans from the risks that exist in a combat environment. There are two reasons to dismiss this charge. First any form of warfare that reduces the risks to one’s own human combat forces is inherently superior, full stop. Second, and contrary to conventional discourse on this matter, drone warfare is inherently less deadly to civilians on every measurable level. It is preferable for any civilian population unfortunate enough to exist in a combat zone to be subject to a drone strike rather than to a ground-based assault by U.S. forces. Drone warfare is far from tidy but then again so is warfare in general. Drones should be judged for what they are; an effective tool our military employs in combat. Those who oppose drone warfare outright should at least be ready to provide a viable alternative.

Third, civil libertarians need to take the recent alarm bells regarding presidential “kill lists” with a degree of caution.

To be sure, the recent marriage between drone warfare and secret kill lists in non-combat zones represents an unprecedented expansion in executive power. At present, the executive branch has usurped the power of judge and jury and has rendered due process of law null and void. In some real sense, the Presidency has become a law unto itself. This is unacceptable for a constitutional republic and, I would argue, a greater threat to American liberty than any threat that may now exist overseas.

All that said, and I do not wish to minimize the threat of an unaccountable executive branch, the current trajectory of our nation’s drone policy is one of regularization and law, not perpetual arbitrary action by the chief executive. A recent Washington Post article, while critical of both drone warfare and the Administration’s policy of targeted killings, revealed a highly sophisticated decision making process that combines multi-agency collaboration both within the executive branch and between the U.S. government and other states. Rather than haphazardly drawing up a list and having the President rubber stamp a “kill order,” the executive branch is relying on an elaborate vetting process by which intelligence targets are not only identified, monitored and analyzed but are also submitted for an operational review. This latter review consists of multiple policy options including “pick ups” by U.S. Intelligence and/or military teams, domestic arrest by the host government or, should the first two options be judged too hazardous and the target deemed too imminent a threat, ordering a drone strike. It should be noted that Pakistan, Yemen and Somalia, countries where drone operations are currently conducted, have all sanctioned the policy (albeit quietly).

Civil libertarians should welcome this on the grounds that the sooner drone warfare is formally regularized within the executive branch, the sooner it will be codified in law. Unlike with the issue of the status of “enemy combatants,” where both the executive and legislative branches dragged their feet before being prompted by the Supreme Court to codify the status into law, the executive branch is taking the initiative to provide the trappings of institutional accountability. To be sure, the constitutionality of these institutional trappings is dubious at best. Civil libertarians of all stripes should demand these issues be legally resolved by Congress. Unfortunately, the political reality is the legislative branch is far less likely to address this issue without some sort of initiative by the other two branches. Current steps taken by the Administration will provide a rubric, as opposed to just vague principles, from which a given Congress can, when it so chooses, address the matter intelligently.

Fourth and lastly, civil libertarians need to keep their critiques of drone warfare from devolving into a rigid binary view. This binary view involves two mutually exclusive camps: those who defend it at all costs on the grounds of utility and those who oppose it outright on the grounds that it necessarily involves an unacceptably high toll on innocent civilians. Neither view is helpful and, more importantly, neither view is accurate. Drone warfare is far from perfect, but it needs to be reformed, not abolished.

Jonathan Tkachuk received his M.A. in Diplomacy-Counterterrorism from Norwich University and his B.A. in Political Science from Rutgers University. An independent professional with foreign policy research experience, Jonathan resides in Northern Virginia.  

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