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Our Drone Program is Legal and Moral

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  • David French
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    David French, a Harvard educated attorney, is Senior Counsel at the American Center of Law and Justice. He lives in Middle Tennessee with his wife, best-selling author Nancy French and their children and pets.
By David French, CP Guest Contributor
February 7, 2013|12:37 pm

In the aftermath of NBC News's release of a leaked memo outlining the legality of strikes against high-level members of al Qaeda who are also American citizens, fresh attention has been focused on the American drone program – and not just on its use against Americans. In the Christian community, I've been frankly surprised at the extent of the opposition to drone strikes. If we are at war (and we are), why can we not use our most precise weapons to defeat our enemy? Would we rather terrorists have safe havens?

I've found that opposition to drone strikes is often based on a misunderstanding of our conflict against al Qaeda and our allies. We are at war, not in the midst of a law enforcement action, and the rules for war are dramatically different than the rules applicable to police forces. For example, one could never use an F-16 to strike down a drug dealer without a trial, but air strikes are a routine and accepted means of warfare. To take another example, a police officer is generally prohibited from shooting a fleeing subject, but a soldier in war can and often should shoot a fleeing enemy. In war, we attack enemy forces, regardless of their citizenship. (For example, in World War II, we attacked uniformed German soldiers even if some may have also been American citizens).

Legally, the United States of America, by Act of Congress, is engaged in a military conflict – a war – against al Qaeda. Immediately after 9/11, Congress overwhelmingly passed a broad Authorization for Use of Military Force, which states:

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

While there are some who believe that the declaration was unwise and that law enforcement measures would be more appropriate in response to 9/11, opinions as to the wisdom of the authorization are irrelevant to its legality. We are in a state of war, and thus the law of war applies to our actions.

Yet being lawfully at war is not the same thing as conducting war lawfully. A legally binding process commits us to war, but laws also govern our conduct in war.

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Following the unprecedented carnage of World War II, the international community endeavored to place effective limits on armed conflict. Through a variety of treaties and domestic laws and policies, the United States has agreed to many of these limits and strives to apply those limits to its military operations today. These laws of war are encompassed by three broad principles: Necessity, distinction, and proportionality.

"Necessity" or "military necessity" simply means that armed forces should limit their attacks to accomplish legitimate military objectives. The central idea of "distinction" is to attack only military targets. Finally, "proportionality" prohibits the use of force greater than required to achieve a military objective. It does not mean fighting with equivalent weapons (you can bring a bomb to a gunfight - and I'd in fact encourage that).

Military forces are also required to aid compliance with these principles by - among other things - avoiding using civilian facilities, and wearing distinctive uniforms. If an armed force tries to blend in with the civilian population and uses protected sites (such as churches, mosques, hospitals, etc.) for military purposes, then it is violating the laws of war.

In such circumstances, the requirement - in particular - of "distinction" is not unilateral and absolute. In other words, the enemy's failure to use uniforms and its persistent use of civilian buildings gives us greater latitude in the use of force, not lesser. To be sure, we should do what we can to make sure that we're engaging militants and not civilians, but the moral and legal responsibility for civilian deaths (assuming we are not grossly negligent or reckless) falls on the disguised terrorists, not on the uniformed Americans.

What does this have to do with drones? Well, since we are in a state of armed conflict, and the drones are used as weapons in that conflict, the question is whether they satisfy the requirements of necessity, distinction, and proportionality against the backdrop of the terrorists' own war crimes. Simply put, if drones don't satisfy those criteria, none of our weapons (aside from snipers) do. Drones can linger over targets longer than most fixed-wing aircraft, their sensors allow for target identification and evaluation at a level unprecedented in the history of war, they carry precision weapons - not "dumb" bombs - that almost always hit within mere meters of their aim point, and their limited payloads mean they don't even have the capacity for the kind of mass destruction an artillery battery or B-52 can inflict.

And if you think it would be more precise and less destructive to put "boots on the ground," you're generally deluding yourself. Firefights can spiral out of control very quickly, and providing proper support to troops fighting for their lives often results in massive devastation.

There is much hand-wringing over terms like "kill list" and characterizations of drone strikes as "war by joystick." But aren't target lists a natural part of warfare? And believe me, a soldier under fire appreciates a drone strike, air strike, or artillery fire mission regardless of the danger to the drone operator, pilot, or artillerymen. Whether you use a joystick or trigger, the result is the same.

To be clear, I do think it's interesting and worthwhile to debate and study the effectiveness of drone strikes. Do they materially impair enemy capabilities? Are they more effective than other forms of attacks? A smart military is always evaluating and re-evaluating its tactics. But at the end of the day, my question to those who decry drone strike is simple: If the military can't use its most precise weapons to attack the enemy, which weapons can it use?

David French is Senior Counsel and Director of Digital Advocacy at the American Center for Law and Justice.
 

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