February 12, 2013

By David Perry

Professor of Applied Ethics and Director of the Vann Center for Ethics

Lethal strikes by unmanned U.S. aircraft (drones) against terrorist suspects in Pakistan, Yemen etc. have provoked vigorous debate over the past several years. But the controversy came to a head this week in connection with Senate confirmation hearings for John Brennan as CIA Director, and the leak of a Justice Department white paper on the legality of targeting American citizens who ally with Al Qaeda.

Has the Obama administration upheld the law in carrying out those strikes? In some respects, yes, but not sufficiently.

On the one hand, I'm persuaded that the ethical principles affirmed in the just-war tradition and the laws of armed conflict, including the Geneva Conventions (which as ratified treaties have the same status constitutionally as other federal laws), do not prohibit us from using drone strikes against terrorist organizations in other countries, even if we're not at war with those countries.

In the cases of Pakistan and Yemen, we apparently have their governments' permission as well, so we're not violating their sovereignty. And even if we did not have their permission, if they were unable or unwilling to arrest terrorists on their territory who pose a threat to us, we'd still have a strong case to use lethal force (with drones if necessary) to protect ourselves, either in terms of our right of national self-defense in the UN Charter, or as pre-emptive strikes permitted under customary international law.

On the other hand, some results of our drone strikes suggest inadequate efforts to determine that the people we're targeting are actually terrorists-a requirement in the ethics and laws of war known as discrimination or noncombatant immunity, the obligation never to directly and intentionally target noncombatants. For example, the practice of "signature" targeting, aiming at groups of "military-age men" carrying guns without obtaining positive identification of any of them as being actual terrorists, is especially troubling in that regard.

Other drone strikes (perhaps most of them) may have targeted the right people (illegal combatants), but resulted in a disproportionate and unnecessary loss of civilian lives as well. We can and should do better to avoid killing innocent people.

In addition, the Obama administration's procedures for placing American citizens on the "kill list," even if employed very rarely (as in the case of Anwar al-Awlaki), show insufficient respect for their presumptive right to due process of law. It violates our reverence for constitutional checks and balances for the President to have no judicial oversight of his decisions to execute Americans without trial.

As several U.S. senators have argued, the executive branch ought at least to be required to seek authorization from a judge, or a special court like the Foreign Intelligence Surveillance Court, before depriving U.S. citizens of their most basic constitutional right to life, even citizens who've chosen to betray their country and join a terrorist organization. That would not plausibly represent an unconstitutional limit on the President's authority as Commander in Chief.

But drone aircraft can be (and often are) used to target terrorists in ways that uphold ethical and legal principles in war much better than earlier technologies allowed. The ability of an unmanned aircraft with powerful cameras and other sensors to hover over a potential target for several hours allows its operator to be much more discriminating than artillery teams used to be in lobbing projectiles at great distances or pilots dropping "dumb" bombs.

The only way to be more discriminating than a drone strike is to insert troops on the ground to capture or kill at close range. Sometimes that's the best option, as in the raid on Bin Laden's house. But if we can effectively and ethically target terrorists without risking the lives of our troops, so much the better.

David L. Perry is Professor of Applied Ethics and Director of the Vann Center for Ethics at Davidson College in North Carolina. He's the author of "Partly Cloudy: Ethics in War, Espionage, Covert Action, and Interrogation" and was previously Professor of Ethics at the U.S. Army War College in Carlisle, Penn.