Drones, Civil Liberties And The Laws Of Warfare

You know the old saying, When all you have is a civil liberties hammer, everything looks like a civil-liberties-violation nail. C’mon. Who hasn’t said that?

Yeah, well, anyway, that old saw (see what I did there?) apparently applies to the latest Obama Administration Outrage Du Jour: The President’s ordering targeted killings of individuals alleged to be in league with al Qaeda in the Middle East and Central Asia. I’m neither a fan of drone strikes nor targeted killings, but it’s become increasing frustrating to me that the President’s liberal critics can’t seem to identify the real problem with those policies. For example, one of Pres. Obama’s harshest critics, Glenn Greenwald of Salon.com, frequently bemoans “the due-process-free assassination of U.S. citizen Anwar Awlaki,” as if the words “due process” were some magical incantation that cures all political ills.  And, like clockwork, once Mr. Greenwald invokes due process! his acolytes on Twitter repeat that canard ad nauseum till it’s ricocheting around the anti-Obama echo chamber like a cartoon bullet.

But, you see, it’s not really a due process issue at all, even when a U.S. citizen like Anwar Awlaki is involved; nor does the validity of the President’s drone program rise or fall on whether the targeted individuals are entitled to due process. Which is why I was pleased to see this editorial in USA Today by Hina Shamsi, the director of the ACLU’s National Security Project. Ms. Shamsi is harshly critical of the President’s drone attacks – but for the right reasons:

When our nation violates the law in the name of our national security, it gives propaganda tools to our enemies and alienates our allies. That is why the government’s targeted killing program, which has resulted in hundreds of civilian deaths, is both unlawful and dangerous.

To be sure, targeted killing is not always illegal, nor is the use of drones. Under international law and our Constitution, the government can use lethal force when, for example, an individual takes up arms against the United States in an actual war, or against a person who poses an imminent threat to life and no means other than killing will prevent the threat. These are not the rules the government is following.

Ms. Shamsi gets two important points right here. First, she correctly identifies why our unbridled use of drone attacks is a bad policy – because the resulting civilian deaths undoubtedly turn local populations against us and actually encourage the violent extremism we’re trying to fight. Second, and more importantly, Ms. Shamsi correctly identifies the actual legal problem with the targeted killing program: It’s not that targeted killings violate an armed combatant’s due process rights; it’s that the current program is inconsistent with the laws of warfare.

As Ms. Shamsi notes, the United States may well have the right to use drone strikes in certain circumstances: “In,” as she says, “an actual war”; or, where “a person … poses an imminent threat to life and no means other than killing will prevent the threat.” And therein lies the problem: Our drone strikes aren’t limited to those imminent-threat situations; and the so-called “war on terror” doesn’t fit within the legal framework of war itself. Or, to use Ms. Shamsi’s phrase, it’s not, legally speaking, an actual war.

Setting aside whether the war in Afghanistan was legally justified (and I’ve argued before that it was, albeit a terrible policy decision), the “war on terror” as it now exists is a wide-ranging military operation that isn’t confined to an identifiable theater of operations where an identifiable enemy exists. Instead, we’re attempting to fight this war across national borders, going wherever we think the enemy might be; going well beyond Afghanistan and, theoretically, into any country on the planet where people who say they’re affiliated with al Qaeda might be found. There is simply no legal framework for this type of war – and that’s the problem with the way we’re waging it.

If the underlying war itself were legitimate, then the laws of warfare would permit the use of targeted drone strikes to knock out the leadership of the opposing military. After all, a surgical drone strike in those circumstances would be considerably better than, say, another Fallujah. Or another Dresden. And in those circumstances, no one would argue that the enemy’s military leaders were entitled to due process (even if one of those leaders happened to be a U.S. citizen who defected). If you’re fighting a legitimate war, you can kill the enemy’s military leaders, and the more targeted those killings the better.

So the problem isn’t that we’re denying anybody due process; the problem is that we’re engaging in these drone strikes in the context of a war that itself defies the laws of warfare.

But if we all agree that drone strikes are bad, why does it matter whether the President’s critics identify the correct legal reason why they’re bad? Because, as a general principle, accuracy always matters; and because there may be times, as the ACLU’s Hina Shamsi points out, where a president can legitimately order drone strikes instead of charging an enemy combatant with a crime, arresting that person and putting him or her on trial with full due process rights. More to the point, by making a false legal argument – that drone strikes are illegal because they deprive the targets of due process – the President’s critics are encouraging people to reach the opposite, and equally incorrect, conclusion: That if the targets of the strikes aren’t entitled to due process in these circumstances, the drone strikes are, a priori, legal and justifiable.