Reply to Critics: No Easy Answers

by Bradley Jay Strawser

I wish to thank the Dialog Advisory Group and 3 Quarks Daily for hosting this symposium.[1] I also thank the four commenters, John Fabian Witt, Steven Levine, Feisal Naqvi, and Lisa Hajjar. Each essay raises important points which deserve thorough discussion for which I am grateful.

Before I respond, however, I’ll note that in the intervening time since I wrote the opening essay, the now infamous Department of Justice (DOJ) White Paper on drones was released.[2] This was followed shortly thereafter by the Obama administration agreeing to divulge further memos to congress regarding the killing of US citizens overseas via drone.[3] Needless to say, this is a significant development in the broader drone debate, although much of the release itself can be chalked up to Washington political theater.[4] In terms of substance, the White Paper does not provide much new information regarding the administration’s legal and moral reasoning behind US drone operations – they have made similar overtures defending the practice in other venues.[5] The DOJ argument is that lethal drone strikes, to be justified, must meet a three part test which they claim the strikes carried out by the US do meet. First, the individual in question must be reasonably deemed to pose an imminent threat; second, capture must be infeasible; and, third, the killing must be carried out according to standard “law of war principles,” such as proportionality, distinction, and the like.[6]

The pressing moral issue for present drone operations, then, is not the principle of such action, as it is claimed and represented in this White Paper. For, in principle, the killing of a liable person who poses an imminent threat to innocents in order to block his or her threat, when the strictures of necessity and proportionality have been met, is perfectly legitimate. This is simply the traditional claim of justifiable defensive killing. Surprisingly, some of the authors responding to my initial essay in this symposium seem to not understand this point when they claim that all drone strikes fail to give their targets “due process” and are “extra-judicial executions.” This misunderstands the moral reasoning behind the drone strikes – at least so far as it is claimed by the administration. I am not here thereby suggesting that the US drone operations necessarily meet their claimed justification – that’s another matter – but simply that some of the authors for this symposium are not even responding to the justification as it is claimed. Instead they are asserting that US takes itself to have the right to commit “extra-judicial executions,” which is not at all what the US claims for its drone operations. So I must take a moment and review this basic justification for defensive killing.

The first choice for blocking any unjust threat is the least harmful option available (such as capture), but there are times when necessity demands lethal action be taken as the best or only means to thwart the threat. In such cases, the person posing the unjust threat has made herself liable to the defensive harm in question, and her rights are not transgressed. Such killing is thus not violating that person’s due process rights, nor her right to not be harmed unjustly (for she is being harmed justly). In such a scenario, the person’s actions have made her liable to be killed as the only or best means to block her unjust threat.[7] Again, in principle, this kind of moral justification for killing is nothing new. Such a justification is given on a daily basis when law enforcement officers kill a criminal in the act of threating innocents. If the criminal was posing an imminent threat such that he was liable to be harmed to thwart that threat, none of his rights were violated by the cops when they shoot him.

Of course, the very notion that a threat can be justifiably blocked by killing, while sound in principle and sometimes in practice, is ripe for abuse and misuse. So the pressing moral issue for the drone campaign is how the notion of “imminent threat” is being evaluated, measured, and properly understood.

What threshold of imminence legitimately counts for a given threat such that it should result in the person posing that threat becoming liable to lethal harm? That is the difficult moral question, and that is precisely what is so ill-defined by the present administration and by the DOJ White Paper. Are we talking about a kind of imminence like that of a criminal with a gun to the head of a child, or a much fuzzier, looser conception of “imminent threat” like that claimed by the Bush administration in its justification for the war in Iraq?[8]

The point is this: while the boundaries of imminence itself are vague and morally difficult to pin down, most of us agree that an imminent threat can make someone liable to be killed. Take the recent case in the US of Jimmy Lee Dykes.[9] (Dykes captured a young child and held him hostage; eventually the police stormed in and killed Dykes in the process of trying to save the child from the imminent threat posed by Dykes.) You’ll hear no one argue that Dykes’ rights of due process were forgone or that he was the victim of “extra-judicial execution.” Of course not: his threat was clearly imminent, he had made himself liable, and when other means of blocking Dykes’ threat became infeasible, the police reasonably believed killing him was the best or only means to block his threat. In theory, one could make the same kind of moral argument for the drone strikes presently carried out by the US – and that is exactly the argument the DOJ is making in the notorious White Paper.

But, again, one worries (of course) that the threshold of what should count as imminence being employed by the DOJ is stretched beyond any plausibly reasonable standard. In that case, if the targets of drone strikes are not in fact posing an imminent threat (or do not meet the threshold of imminence such that liability should obtain), then their killing would be wrongful – falsely claimed as defensive. So let me make it clear: I share this grave concern. As I said in my opening piece, I imagine that some drone strikes have met the proper threshold (whatever that is) for imminent threat such that the target was properly liable, while for others it would be a stretch, at best, to make such a claim. The trouble is, because of a lack of good data about the operations, we do not have proper warrant to know to what extent this is true.

It is precisely because of such concerns that I strongly endorse what many, including former Secretary of Defense Robert Gates, outgoing Secretary of Defense Leon Panetta, and incoming CIA director John Brennan, have endorsed: an external court that reviews the classified data involved in drone strike decisions and checks whether the target in question meets the thresholds just discussed.[10] Former Congresswoman Jane Harman has led the call for such a process, suggesting that it be built upon the existing framework found in the FISA-courts system.[11] As Harman writes, “FISA-like procedures can help with critical determinations of how imminent a threat is, whether capture is feasible and if potential action is consistent with laws of war, the three criteria laid out in the recently leaked Department of Justice's ‘White Paper’ on drone strikes.”[12]Similar to how we have an external judiciary confirm that there is good reason for the police to search someone’s home – they must obtain a warrant from a judge – so too could an external body serve as a check on the claims of defensive killing by drone.[13] Such a system would safeguard classified information security while at the same time put desperately needed moral checks on drone operations to ensure whether the targets are, in fact, posing an imminent threat and that other means of blocking such threats are infeasible.

* * *

The above discussion engages some of the respondents’ points in this symposium. I will now respond more directly to each author. I apologize in advance that I am only able to give partial responses to each and will by necessity focus attention unequally on some responses over others.

John Fabian Witt’s thoughtful essay was both informative and valuable in encouraging us to reflect upon where this debate sits historically. His distinction between “pre-textual” and “authentic” critics of drones is a helpful framework within which to better understand our present discussion. His lucid and balanced perspective is an example of what the drone debate needs: intelligent dialog moving the conversation forward in constructive ways. Witt is certainly correct that for the non-pacifist authentic critics, my arguments that drones can be used justly in principle do not satisfy in the least. Such arguments, of course, are not intended to satisfy those complaints. Rather, as I attempted to show, there is value in investigating whether new weapons pose special moral problems in principle. Moreover, knowing all too well that only examining drones in theory is unsatisfying to most critics is precisely why I attempted to show how such arguments could (potentially) be applied to present real-world cases, albeit contingent on shaky empirical facts.[14]

I share Witt’s deep worries over the aggregate system-wide effects of allowing this particular weapon to be used. It’s entirely possible they may in fact do more harm than good on the whole. My hesitancy in drawing too quick a conclusion from such concerns is that, again, so much of the matter rests on empirical questions that are presently opaque. And, secondly, there is at present a competing and serious moral harm against which the drones are currently being used to fight against; the moral tension here is powerful and daunting.

* * *

As a fellow philosopher, I appreciated Steven Levine’s careful analysis and method. I find it insightful of Levine to point out how the distinction between intelligence and military action in the US has all but collapsed. I agree with him that this is a serious problem. The CIA should be in the business of intelligence, not direct lethal action.[15] One wonders then, whether drones are merely a symptom of this state of affairs or a partial cause of it?

Among other good points he raises, Levine asks us to reconsider the already perennial concern (in this young debate) that drones, by being too easy to use, dangerously lower the bar against going to war. (This is sometimes referred to as the “threshold problem.”) Levine helpfully broadens the conundrum here beyond simply a question about war. He does so by asking how drones may make not only war too tempting, but how they can also make assassinations and wrongful intelligence operations too tempting – things for which drones are particularly well suited, and thereby particularly tempting.

In this, I think Levine is absolutely correct. Indeed, one could call Levine’s version of the threshold problem – one focused on lowering the bar for specific kinds of actions which drones are particularly capable at carrying out – a strengthened threshold problem for this specific technology. I share his concerns over the misuse of drones along precisely these lines. So let me respond to Levine’s concern by again suggesting that, in my view, the best hope to block (or mitigate) the threshold problem would be through the FISA-type courts and other means of over-sight discussed above.

Levine claims that I make the mistake of “assum[ing] the goodwill of those who are using drones.” I do not mean to make such an assumption, but I can understand how my moral reasoning about drone use in principle could be taken to do so.[16] So let me affirm with him that we cannot be too quick to assume the goodwill of those using drones (or of those using any weapon, for that matter). At the same time, however, we should also not be too hasty in assuming the ill-will and mal-intent of those who use drones – a charge which I think sticks against many drone critics, including some of the authors in this symposium.

Levine (as well as some of the others), chide me for being too US focused and, Levine claims, not even abstract enough. That is, he argues, I must consider China or Russia or other such states using drones. Two points here are relevant. First, whether it’s China, Russia, the US, or any actor – my primary moral concern is whether the killing itself is justified and that, therein, whatever means most likely to do the least amount of unintended harm be employed. So when people ask me if I’d like it if Chinese drones were firing missiles upon my house (a question I hear surprisingly more often than one might expect), the answer is, of course, no. But that’s because I’d like no one firing anything upon my house, and (so far as I’m aware) I have done nothing to make myself liable to be killed. But, second, if China were at war with my country, and the choices were whether I would rather China use drones or some alternative, less accurate method of waging war – such as the inaccurate and (truly) indiscriminate aerial bombardments of earlier eras – then, yes, perhaps surprising as it may sound, I would prefer China use drones. Again: in all such cases of killing, the moral aim is to limit the harm as much as possible against innocent people caught in the crossfire.[17]

* * *

The opening lines of Feisal Naqvi’s essay make it clear that a charitable engagement of my views is not his intended aim. Rather, his response continues in that vein of overconfident, one-sided rhetoric against which I made a plea for those of us in this conversation to move away from. In my view, Naqvi over-values the evidence which supports his view and disregards or ignores the evidence which is contrary to it.[18] Worse, throughout his piece Naqvi attacks not my actual views, but those of a strawman caricature.[19] I will attempt to be more charitable to Naqvi in my response, but I must rebuke at least some of the ways he has wrongly portrayed my views and, more importantly, gets key aspects of this debate wrong.[20]

To begin, Naqvi repeats a commonly heard objection in this debate, which is that the US is violating the sovereignty of the states in which drone operations are being conducted. This myth needs to be debunked. The US is working with those states where drones are being deployed to fight common enemies with the consent of the given states; they are not thereby violating their partner state’s sovereignty. If the governments of Pakistan or Yemen, for example, officially demanded that the US stop drone operations within their borders, then, yes, the US would be in violation if they continued carrying out such operations. Indeed, such action could even rightly be considered an act of aggression and casus belli. But, of course, that is not occurring; rather, just the opposite. The official governments of these states are each working with the US to fight those targeted by drones. In many of these states, it is popular for leaders to complain about US drone operations for domestic political reasons. But these governments’official diplomatic position with the US is still one of co-operation against a common adversary.[21]

Naqvi admits that it’s possible to take Pakistan as consenting to US drone operations, but he then claims they would still be illegal because “the state of Pakistan does not have the legal right to execute random people without due process.”[22] I’m genuinely baffled by this and other such assertions Naqvi makes as they relate to drones. Does Naqvi genuinely believe that the current drone strikes intentionally target literally random people? Again, as discussed above, the drones are claimed to be used against liable people, who pose an imminent threat. Despite Naqvi’s claims, I am certain that the state of Pakistan’s authorities have that legal right to protect their citizens, by lethal force if necessary. If Naqvi believes that the drone strikes are cases where things like the proper threshold of imminent threat have not been met, then so be it – that is a perfectly fair critique to make. But that is a far cry from the notion that the US is simply flying around “executing” random people with no rhyme or reason. This is the kind of rhetoric which destroys helpful dialog on this difficult topic. The real irony here for Naqvi’s claim, is that the people who do intentionally execute random innocent people are the al-Qaeda allied Taliban militants against whom the American and Pakistani forces are fighting in the FATA.

He makes similarly outlandish claims when he states that, “The only difference between what the US is doing and what the world has condemned for centuries is that the killing of people (both suspects and people admittedly innocent of any crime) is now happening via remote control.” But this is false. The world has not condemned the killing of liable people who pose an imminent threat to others for centuries. Just the opposite is true, as I made clear at the beginning of this essay. The question, in this case, is whether the drone operations constitute legitimate defensive killing against imminent threats. The confusion and fundamental disagreement here between Naqvi and myself is two-fold. First, Naqvi takes the US to be committing “extra-judicial execution” and that it takes itself to be within its rights to do that. I showed above, and the White Paper shows clearly, that is not the moral justification claimed. Second, Naqvi assumes that the drone strikes are “randomly” committing “indiscriminate murder” of nonliable people.

Contrary to Naqvi’s assumptions, I am unsure (as I stressed) to what extent the drone strikes live up to their claimed moral justification, whether the targets really are imminent threats, and so forth. This makes for a rather massive difference in our views of the matter. I find that the evidence we have available provides Naqvi nowhere near the warrant to make the strong claims he does, such as equivocating the drone strikes against (putatively) liable targets to Genghis Khan “piling up skulls” of innocents. Again, such a polemic is unhelpful, inflammatory, and wildly inaccurate; it moves us no closer to an informed, nuanced debate. In light of such rhetoric, I am often reminded that simply being offended does not make one right. Mr. Naqvi might similarly be reminded that loud proclamations of moral outrage are no substitute for an argument.

Naqvi again confuses my argument when he writes,

Mr. Strawser contends that drones are moral because they are not indiscriminate like nuclear weapons. This is a misleading argument. The world rejects torture even in wartime not because it is indiscriminate and not because it is ineffective. Instead, all civilized nations reject torture because it denies the fundamental dignity of humankind. Similarly, extrajudicial killings have been consistently rejected…

Naqvi misunderstands my argument. I was not raising the example of nuclear weapons to argue that drones are not intrinsically bad simply because they are capable of being discriminate. I was using the example to show that some weapons are wrong in principle to use, by their very nature. I similarly agree that torture is wrong in principle to use, and precisely because it “denies the fundamental dignity of humankind.” I raised those examples to help make the distinction that drones are not fundamentally immoral to use in their nature, in my view, as are nuclear weapons and torture. Naqvi apparently believes drones are intrinsically wrong to use in equivalent ways as torture and nukes by pointing to drones present contingent use. But, of course, this misses the entire point and distinction of something being intrinsically wrong to use as opposed to contingently wrong to use.

His mistake here, once again, rests on his unwarranted assertion and assumption that all drone killings are merely “extrajudicial executions,” rather than even considering the possibility that some of them may be morally justifiable killings against imminent threats. Again: perhaps they are not that and the present drone campaign is abusing the notion of imminence and the killings are therefore unjust. This conclusion would be wholly reasonable for one to reach and I’m quite tempted by it myself. But that conclusion is miles away from jumping to his claims that they are “random,” “indiscriminate” “extra-judicial executions” of innocents and that the technology itself is thereby intrinsically evil, like torture.

Naqvi engages in various other fallacies when he tries to compare US drone operations against militants in FATA (whom Naqvi agrees should be fought against) to terrorist organizations using airborne weapons against innocent civilians. He writes,

Suppose if Al Qaeda was to attack innocent Americans using airborne weapons. Would Mr. Strawser then talk about issues of proportionality or would he say that such killings are inherently unacceptable? … I have little doubt that Mr. Strawser’s tune would change considerably if he and his fellow citizens were also under the threat of indiscriminate airborne attack.[23]

First, I’ll remind Naqvi that al Qaeda did attack innocent Americans using airborne weapons – it occurred on September 11, 2001. But, second, this is a red herring from our present debate. My “tune” is that any killing – be it carried out by drone or some other weapon – is only morally justified against a liable person under the constraints of proportionality and necessity. If a terrorist organization were intentionally attacking nonliable people with such weapons, then, of course, it would be morally wrong. But notice Naqvi’s assumption and equivocation that US drone operations are “also” mere “indiscriminate airborne attacks.” Whatever present US drone operations are, justified or unjustified, they are not morally equivalent with a terrorist organization intentionally targeting innocent civilians. Does Naqvi sincerely believe that the US is intentionally targeting innocent civilians?

Perhaps most frustrating, Naqvi also makes the insinuation that I value American lives over the lives of other human beings. This is false. I believe that all human beings are of equal worth, have legitimate moral claims upon one another, including (of course) the right to not be harmed unjustly. It is an equal moral tragedy when the blood of an innocent American is spilt as it is when the blood of an innocent Pakistani is spilt. My moral reasoning on this matter gives no weight or partiality to any flag or national origin.[24] Again: Naqvi appears to be fighting a strawman, not my actual position.[25]

It is critical to note that Naqvi agrees with me “that Al Qaeda and their supporters in the Taliban need to be fought.” But, despite this, he offers no alternative as a better means to fight these adversaries. Note well: Naqvi never answered my direct question that I put to drone critics in my opening essay. That is, he agrees that “there is a war that needs to be fought against people who seek to kill in the name of their religion,” but he never suggests how we can more justly carry out such a war. Instead, he decries the evils of drones and says that by fighting with them we do so “at the expense of our souls.” I agree that we should not lose our souls in fighting against this shared enemy, but he has not shown how using drones are intrinsically wrong such that we do so by employing them.[26]

It’s very easy for one to agree that we must fight, yet sit back and complain about the means of fighting without offering any plausible alternative. Naqvi complains against lesser-evil type choices and reasoning. It is important to remember that lesser-evil type decisions are forced upon us by the intentional evil actions of those he agrees we must fight. It is not as if we want to have to engage in such decisions. This means, by agreeing that we must fight the militants, Naqvi himself is trapped in a lesser-evil dilemma, for there is no “clean” means of waging war; in all methods of war some innocents are sure to be harmed. Yet he takes the easy out of simply not offering an answer as to which path should be chosen; content instead to vociferously condemn the drone approach.[27]

* * *

In her essay, Lisa Hajjar is correct to point to the concept of imminence as the lynchpin issue for whether any killings by drones can be considered justified. I wholeheartedly agree, as discussed above, and share her concern over “imminent threat” being stretched beyond any plausible interpretation. But her suggestion that such killing is, in principle, therefore some kind of “total war” misses the mark. She’s right to fear protracted never-ending wars. I too worry how such a quagmire could ever end. But such a thing is not “total war,” at least not in any sense that phrase has been traditionally understood. Rather, by being constrained and limited, it’s the opposite of total war. I wonder too if she has similar fears of law enforcement fighting “never-ending” wars against liable criminals. Presumably she does not.

Hajjar then tries to connect the present drone campaign and it’s justification to the previous vile machinations of the US torture program. But this is a mistake for the two are acutely distinct. As Jane Meyer recently argued, those who try to draw a line between the Obama drone justifications and the Bush torture justifications “miss an important distinction.” [28] One (killing a liable person posing an imminent threat) is at least possibly morally justified and legal, while the other (torture) is not ever possibly legal and is an act for which, in my view, there is an absolute moral prohibition against.[29]

Hajjar claims that the use of drones, simply in virtue of being unmanned, are perfidious acts of war. She writes,

If drones offer a clear advantage to their operators, it is an advantage that compares to the combatant who perfidiously disguises himself to approach and kill his target unawares or the sniper who kills from a distance. Perfidy in the context of war is a war crime because the advantage the combatant gains from disguised sneak attack is illegal.

This attempted argument against drones is wrong on many fronts. First, Hajjar is confused as to the legal status under international law of surprise attacks, which are legal and not considered perfidy. This confusion likely arises from her deeper confusion over what perfidy actually is. Perfidy is defined specifically under Article 37 of the 1977 Additional Protocol I to the Geneva Conventions as follows: “Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.” The Additional Protocol then spells out specific examples of what should be considered perfidious attacks, such as faking surrender by raising a white flag, and then continuing to fight, or feigning special protected noncombatant status such as pretending to be, say, a Red-Cross or Red-Crescent worker in order to peacefully approach an enemy and then open fire.[30]

So Hajjar is right, of course, when she claims that “perfidy in the context of war is a war crime,” but she is mistaken on what perfidy actually is. Using drones or any remote technology is not considered perfidious under any reading of the international laws of armed conflict. A combatant trying to better protect themselves – be it by disguise, camouflage, or by placing greater distance between themselves and their adversaries – has long been an accepted, perfectly legal act in warfare.

Relatedly, Hajjar also is mistaken when she contends that one side in war is wrong if they do not expose themselves to some level of risk. She writes, “But it is not abstractly moral, even in the narrow instrumental/technological way, because riskless targeted killing negates an entire side of the ‘balance’ that factors into what war is.” I’m not sure what this “balance” Hajjar speaks of is. Traditional just war theory certainly does not demand it. Indeed, a given side in war is perfectly within their rights to try to shield their combatants from harm to whatever extent they are able, unless such force protection inhibits their ability to behave justly in combat. Perhaps Hajjar is trying to argue that the lack of risk for UAV pilots somehow results in less discriminate or proportionate killing compared to riskier means of war, but the empirical evidence we have for that is exactly the opposite.

In discussing the mistaken notion that a just force is required to take on risk, Hajjar also argues that I conflate jus ad bellum and jus in bello. But this is false. I claim that if a given conflict is just, then using drones to prosecute that war could be just. But I am not, and never have, claimed the inverse – that drones’ potential moral advantages somehow give moral credence to unjust causes. If a cause is wrong, then it is wrong to pursue that cause with any means – if it is wrong to fight militants in the FATA, then it is wrong to fight them with drones. Hajjar also believes that I’m arguing that if a conflict is just, then drones used therein are automatically made just. But I have not suggested this either. Drones, in order to be used justly in an otherwise just war, must be discriminate and proportionate, just like any other weapon.

* * *

I’ll end by once again calling for more respect for the difficult moral realities on both sides of this debate that remain in agonizing tension. Polemical over-confidence on either side fails to give the legitimate moral concerns pressing on both sides their due. Despite Naqvi’s and other critics’ protests, this is not a Gordian knot that can be easily cut by sharp moral condemnation. This is true for drone critics as well as for drone advocates. To the frustration of us all and the dismay of those suffering under its realities, once the moral complexities of the present drone war are taken seriously, and the moral pitfalls arresting both sides are fully appreciated, we find here no easy answers.