Monday, March 11, 2013

Drones and targeted killings - Part 4

MQ-9 Reaper

A reader, in response to my first three posts on drones and targeted killing (Part 1, 2, and 3), sent this to me:

I don’t disagree with your framework, but it only discusses targeted killing, not “collateral damage.” According to reports, a matrix supposedly exists that allows determination of collateral damage in proportion to the “value” of the target. How can we or any other country justify killing innocent people in order to eliminate a targeted individual?

After I received that comment, U.S. Senator Rand Paul (R, KY) conducted his thirteen-hour filibuster of the Senate's vote to approve President Obama's nomination of John Brennan as Director of the Central Intelligence Agency. This quote captures the essence of Paul's objection:

I will speak until I can no longer speak. I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.

This post addresses both of those issues.

First, a drone strike against anyone on U.S. soil is wrong, unless circumstances dramatically change. Drones, as I have previously noted, employ relatively large warheads that create large explosions and frequently produce much collateral damage. The Philadelphia, PA, police department employed excessive force (bombing a Philadelphia neighborhood) against MOVE activists in 1978, a decision that still haunts that police department and city. Using a drone to kill people as part of a police action would create even larger, more consequential political reverberations. More importantly, from my perspective, police actions that wantonly disregard human life by employing excessive force are immoral.

Furthermore, citizens, as Sen. Paul emphatically recognizes, have rights that a drone attack would preemptively erase. Indeed, the law generally, and rightly, extends constitutionally guaranteed rights to anyone on U.S. soil. The President's responsibility is to enforce and to protect not to abrogate the law and Constitution.

Is an armed rebellion that poses an existential threat to the Union's survival, as did the Civil War, conceivable? Barely, but in such a circumstance use of a drone attack against American citizens in open rebellion might be an appropriate component of quashing the insurrection. However, short of some such scenario, a drone attack against American citizens on U.S. soil is categorically wrong, politically, morally, and legally.

Second, targeted killings frequently entail weighing the death of one person (a justifiable killing under the conditions that I stipulated in my third post) against the deaths of one or more other individuals killed or injured in the attack, as well as any damage to property, international relations, etc. (the collateral damage). No matrix can cover every conceivable contingency.

For example, if the one person, regardless of past actions (the purpose of the attacks is not punishment but defense), has become isolated and ineffectual, then killing that person does not warrant any amount of collateral damage (except to that person's property).

Alternatively, if the person, who has yet to injure anyone, is the critical lynch pin in an attack deemed highly likely to succeed, that is apparently impervious to disruption once the person departs his/her present location, and will probably kill thousands using a nuclear weapon, a targeted killing that creates substantial collateral damage (dozens of casualties, much property damage, etc.) is morally justifiable.

In between those two scenarios are permutations that defy enumeration. Consequently, authority to conduct a targeted killing mission should

·         Not rest exclusively with an individual nor entail applying a simple checklist. Human judgment is essential. And because human judgment is fallible and humans tend to abuse power, the authority to launch a targeted killing mission requires post-attack review. Officials who abuse their authority should face the legal consequences of their malfeasance. Giving an official the power of life and death is one situation in which holding the official fully accountable after the fact is morally essential.

·         Emphasize apprehension instead of killing and employment of minimum required forces to provide further safeguards designed to avoid unnecessary collateral damage.

·         Weigh the full consequences of a decision – costs measured in human, financial, international relations, etc. This will further reduce the likelihood of abuses. Decision makers unlikely to be swayed by accidentally killing a few innocents in order to kill a high value target may consider the consequences for future cooperation, bad publicity, and other similar factors more highly.

·         Value all human lives equally. The lives of potential collateral damage count for as much as potential American casualties in any attack that the target might aid. The proportionality calculation is straightforward but frustratingly complex: how many will die/be injured in an attempted target killing versus how many will die/be injured if the attempted target killing is not made.

·         Remember that most terrorists conduct or organize few attacks and that all terror groups eventually die. Not launching a targeted killing mission will very seldom enable the terrorist, or the terrorist's group, to conduct an attack that would not have happened if the targeted killing had succeeded. Terror groups almost never disappear because of decapitation, i.e., killing the group's leaders. Future opportunities to apprehend or kill the suspect will almost invariably present themselves. In other words, apprehending or killing the suspect is important but not necessarily urgent, which is a distinction frequently lost in the action-oriented cultures of the military and the intelligence community. Calculations of collateral damage should always heavily favor not conducting the attack.

·         Resist the temptation to reduce the go/no-go decision to a matrix. There are too many contingencies and too much judgment involved to give officials an easy way of disclaiming responsibility through reliance on a simplistic chart.

·         Belong to a person, or better yet, small committee who cannot approve adding an individual to the list of those approved for targeted killings. Separating these two key responsibilities provides a check against either party abusing his/her power.

This list of protocols may be incomplete, but it offers a starting point for improving the ethics, legality, and multiple outcomes (human, political, international, financial, etc.) of targeted killing missions.

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