On Adopting a Posture of Moral Neutrality

by John Fabian Witt

For at least a millennium, human beings in the western tradition have been objecting on moral grounds to new technologies of warfare. Pope Innocent II condemned the crossbow and the longbow alike in the Second Lateran Council of 1139. Centuries later, some objected that rifled weapons – which were vastly more accurate over far longer distances than their smoothbore predecessors – should be prohibited lest warfare become more like assassination from afar than like chivalrous combat. So-called “dum-dum” bullets – projectiles designed to explode on impact — drew the criticism of humanitarians in the middle of the nineteenth century. By World War I, attention had turned to chemical weapons. In the wake of the Second World War, nuclear weapons and biological warfare were added to the list of hotly controversial new technologies of combat. Closer to our own time, we see protests against anti-personnel landmines, munitions with undetectable fragments, incendiaries, and blinding laser weapons.

Even to set forth the list is to see the pattern: relatively few protests against weapons as such are successful. And when such objections do come to fruition, either in the formulation of legal prohibitions or diminished usage or both, it is almost always for weapons whose strategic usefulness to powerful states is quite low. The ban on chemical weapons after World War I, for example, came only after it became clear that the winds could blow both ways — and only after it was readily apparent that armies equipped with gas masks could withstand chemical attacks no matter how the wind blew. By contrast, objections to strategic game-changers such as the crossbow or rifled muskets have been fleeting and powerless in the sweep of history.

If further evidence of the uphill battle faced by critics of powerful new weapons is needed, the International Court of Justice provided it fifteen years ago when it took up the question of whether nuclear weapons were permissible. Faced with powerful pressure from the strongest states of the world, the ICJ found that it could not condemn nuclear weapons. For under some conditions – where, for example, small states aimed to defend their very existence against powerful enemies – the ICJ could not say that resort to nuclear weapons would never be lawful.

* * *

The newest entrant into this time-honored (if morally dubious) tradition is the unmanned armed aerial vehicle: the drone. I find much to sympathize with in Bradley Jay Strawser’s energetic and analytically lucid essay. Strawser argues that properly understood, the drone is a technology that may, under the right circumstances, be used. It follows, he says, that all evaluations of the drone as a weapon must be situation specific. We need to know how it is being used and to what end. In principle, I agree. But I suspect that this argument will persuade relatively few who are inclined to disagree with him, and it is worth making sense of why exactly it is that this is so.

The objection to the drone as such is part of a long tradition of protests against means and methods in warfare that seek to separate the core of their objection from the particular wars in which those weapons systems are being deployed. Indeed, since at least the eighteenth century, this is the principle strategy of those who would regulate and constrain warfare. The dream is to create a regulatory regime that abstracts away from the underlying conflicts and their causes. Modern humanitarian law, for example, refuses to label any one of the parties to an armed conflict as justified or unjustified. It asks only whether the means the parties have adopted are permissible or not.

The reason for this stance of moral symmetry as between the parties is not that we cannot actually discern which side fights on the side of the angels and which side does not. Of course, it can sometimes be difficult, but humanitarian law’s absolute symmetry cannot be explained by those difficulties. The moral strategy of humanitarian law is instead to adopt a posture of moral neutrality out of a sense that for the law to get any traction at all in an armed conflict it has to be evenhanded as between the parties, even if we have intuitions about who is in the right.

We see much the same posture in the critics of the drone. Their claim is to reason about the morality of the drone without reference to the underlying causes of the armed conflict in question. Sometimes, to be sure, this claim to neutrality has been pretextual, just as the posture of moral neutrality has sometimes been pretextual in the history of humanitarian law. Properly understood, this kind of pretextual objection is really an objection to the particular kinds of conflicts the United States is fighting in places like Afghanistan, Pakistan, and Yemen. For such critics, the drone is a useful lightning rod in the more general effort to mobilize public opinion in the United States and abroad against the current U.S. campaigns.

But not all critics of drones are motivated by opposition to the underlying uses of armed force. Some critics of drones – call them the authentic critics as opposed to the pretextual critics — are genuinely opposed to the use of drones as such, by all sides, regardless of the cause to which they are attached at any given moment. And for these critics, the question one wants to ask is: how can any moral evaluation of an instance of the use of armed force purport to set aside the underlying conflict and the causes for which the parties use force in the first place? What kind of a moral position is this?

Of course, some authentic critics of the drone are people who are opposed to any uses of force. They are pacifists. But let’s set them aside for the moment, for they are not interested in the drone as such, since they would object just as much to the armed conflict that employed the rifle, the musket, or the crossbow. The view of most authentic critics of the drone is one that adopts an absolute position on drones not because they actually think that all uses of drones must necessarily be immoral or illegal. Their objection, properly understood, is instead that in the long run, the systematic effects of using drones are likely to be for the bad. The costs of using drones (broadly construed) are likely to be higher than the benefits of using drones. And so, they adopt a position of absolute condemnation.

Now there are lots of things one might say about this position. It rests on contestable empirical judgments, of course. And it tacitly makes all sorts of decisions about how to balance grave moral considerations.

But for this group of critics – and I suspect it is the largest share of the sophisticated opponents of drone warfare – the argument that drones are sometimes permissible as a moral matter does not even get the conversation started. The relevant questions are quite different. The authentic critic wants to know what drones are likely to do to the regimes of international humanitarian law and to the democratic protections against executive overreaching that are built into domestic constitutions. For these are the authentic critic’s real concerns, and such a critic seeks to bar the use of drones because of a judgment about the aggregate system-wide effects of allowing their use, not because they are morally impermissible as an abstract matter in all settings.

* * *

Whether the critics are right or not, it strikes me as virtually inconceivable that they will win the day. Drones are not going anywhere. And so what we need are legal and constitutional institutions that can manage the risks that the drone brings in its wake.

The politics of drones are such that no president of the United States will for the foreseeable future forswear their use. (62% of Americans approve their use.) And it is similarly unlikely that the heads of state of other democratically accountable states will be willing to foreswear the drone technology in situations in which their national security is at risk. And so what we need is a set of mechanisms designed to minimize the threats the drone poses to our current regime of international law and to the values embedded in our existing domestic constitutionalisms.

On the international law front, the problem with the drone is that it evades the mechanism that humanitarian law has developed in the past four decades to constrain the use of force by combatants armed with powerful weapons: the proportionality rule that evaluates a course of military conduct by balancing the advancement of legitimate war aims against the injuries to noncombatants. American critics have recently issued reports condemning the use of drones on the grounds that the collateral damage the drones cause is immoral and possibly illegal as well. But the difficulty with this view is that the drone is one of the most accurate weapons that modern warfare has devised. It discriminates with unprecedented capacity between its targets and others in the vicinity. And it is armed with weapons that limit damage in ways that powerful militaries could only dream of twenty years ago. Moreover, we should expect the drone to become more accurate with each passing year. The time is not far off when extremely precise dragonfly-sized drones can virtually land on their target before detonating. To the extent that this avoids collateral damage, that is all to the good. But the avoidance of collateral damage is just one of the many ways in which drones make warfare inexpensive for powerful states, and one of the salient features of humanitarian law for the past half century has been to use the specter of collateral damage as a way of making such powerful states think twice before resorting to the use of armed force.

On the domestic constitutionalism front, the U.S. experience shows that the drone allows executive branches to use force in extraordinary ways that would once have required more democratic ratification. Consider the United States’ controversial extension of drone tactics outside of Afghanistan and outside even of the tribal areas of Pakistan, to places more remote from the Congress’s 2001 Authorization of the Use of Armed Force. Consider also the Obama administration’s position on the meaning of the 1973 War Powers Act, which the State Department concluded did not prevent the use of force so long as American soldiers were not actually at risk in the operations. Recent proposals of people like Senator Diane Feinstein of California for some kind of a court that could quickly and confidentially review executive branch targeting determinations, at least when such review is feasible, are welcome suggestions for checking the risks of executive branch overreaching without unduly hampering states from taking steps to protect themselves against imminent risks.

But get used to that faint and unnerving buzzing sound from the sky — and to the legal and moral fallout it has already begun to produce. Like the crossbow or the rifle, the drone is a technology that will be with us for a long, long time.

John Fabian Witt is a professor of law at Yale Law School and the author of Lincoln’s Code: The Laws of War in American History (Free Press / Simon & Schuster, 2012).

To leave a comment, please see the introduction to the DAG-3QD Peace and Justice Symposia, of which this essay is a part, here.