That is one of the often ignored complexities of
the drone warfare issue. Another is the
“collateral damage” issue; from the burning of Washington by the British in the
1812 War to Sherman’s burning of Atlanta to the U.S. firebombing of Dresden to Hiroshima,
death and injury to civilians has been a part of warfare. The assumption has been that close
association with the enemy brings you into the same crosshairs with him,
whether you deserve it or not. In that
regard, targeted drone strikes are actually a more precise way of limiting “collateral
damage” than has been available in the past.
And the argument that use of a new weapon like drones could be copied by
some future adversary has never dissuaded us in the past: witness the
Monitor/Merrimac battle, jet planes or Hiroshima. The
oddity of a new weapon does not mean its future misuse by the American
government against the American people; jet planes are not a weapon of any U.S.
police force. So, does there remain a line that should not
be crossed, and if so, where is it?
A clear line would be to avoid attacking U.S.
citizens not part of an invading army on U.S. soil. But that is already illegal, and, by the way,
has been since 1812. Even in the Civil
War, solitary confederates off the battlefield were arrested, not shot on sight. That is because adversaries on American soil
fall under our police powers, and our whole justice system, including rights to
trial and due process are based on the exercise of those powers. Even on American soil, military justice
requires a different system, with its own rules of procedure and
penalties. A clear difference is that
police powers are exercised after commission of a crime, and not based only on
intent, and that is not a limitation under military powers. Under military law
a soldier can be punished for inaction, not the case in civilian law. Such
differences are what declarations of martial law, rarely done and never
lightly, are all about.
The absence then of police jurisdiction in an area
of violent conflict is an indicator of the availability of drones. The more complex issue is that of “targeted”
drone strikes, i.e. strikes aimed at specific people, who may or may not be
American citizens. An obscure provision
of the Constitution prohibits “bills of attainder”, warrants to arrest a person
based only on his perceived bad character; that is the source of the prohibition
under police powers against arresting someone before actual commission of a
crime. Again, that applies to those
under our police jurisdiction. Putting
it all together then, the use of targeted drone strikes in parts of the world
where we are engaged in armed military conflict is morally ugly, but legally
acceptable.
The real question then is whether we morally can
accept targeted drone strikes as ugly but necessary. Here we can fall back only
on the old moral test regarding the lesser of evils: is it the minimal bad thing we can do to
avoid greater evils? As I’ve noted, it
involves actually more limited collateral damage than techniques used in the
past; it does not require unusable advance planning in immediate action
situations, and currently is suitable only for use in sparsely populated
hostile terrain. Its use is against those
who have committed or clearly intend to commit great harm against the U.S.,
involving the loss of many lives. So
long as it involves the highly limited use made of it so far, then drone warfare
appears to meet the “least of evils” test.
The real test will come when it becomes cheaper and still more tightly
targetable. War itself is the villain
here. It should be noted, by the way,
that I am no lawyer, so my analysis involves only my version of common sense
and cannot be blamed on any law school.
Then again, sometimes common sense applies even to the law.
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