This full story is found on MWI: The Law of Armed—and Unmanned—Conflict – Modern War Institute:

President Joe Biden’s decision to double down on over-the-horizon capacities like drones to keep the terrorist threat at bay has unleashed a deluge of commentary about everything from the likely outcomes of such an approach, compared to placing boots on the ground, to whether the extant intelligence infrastructure is capable of supporting it. Among the more puzzling entries in this recent flurry of articles is from Jeff Rogg and Christopher Faulkner, two academics who recently published an essay entitled “Ten Years after the al-Awlaki Killing: A Reckoning for the United States’ Drones Wars Awaits.” In truth, the only “reckoning” as far as drones go is for the critics who deny that the age of drone warfare is upon us.

Are Drones Effective?

Rogg and Faulkner make a number of allegations, but let’s start with their questioning of the effectiveness of drones. Few military professionals around the globe share their doubts as investment in military drones is surging worldwide.

Today there are about thirty-five countries operating or developing armed drones, and about one hundred who have integrated drones of some kind into their armed forces. Drones have become an integral part of any competent military, and will only become more indispensable as artificial intelligence capabilities are increasingly integrated into unmanned platforms.

Do they work? Even a cursory scan of the evidence indicates clearly that they do. The devastating use of drones in the recent war between Armenia and Azerbaijan is but the latest example of how they are, as the Washington Post reported last November, the “future of warfare.” The Post pointed out:

Drone strikes—targeting Armenian and Nagorno-Karabakh soldiers and destroying tanks, artillery and air defense systems—provided a huge advantage for Azerbaijan in the 44-day war and offered the clearest evidence yet of how battlefields are being transformed by unmanned attack drones rolling off assembly lines around the world.

How effective are they as a counterterrorism tool? The people with the most information about them overwhelmingly report their usefulness. In his book, The Great War of Our Time: The CIA’s Fight Against Terrorism–From al Qa’ida to ISIS, former acting director of the CIA Michael Morell observed that documents recovered from the raid on Osama bin Laden’s compound show that “Bin Laden considered drone strikes the most effective US weapon against his group.” Describing drone operations as “the single most effective tool in the last five years for protecting the United States from terrorists,” Morell concluded that “there is no doubt in my mind that these strikes have prevented another attack on the scale of 9/11. They have decimated al Qa`ida’s core leadership in South Asia.”

Similarly, former CIA director General Michael Hayden said in a New York Times op-ed:

The program is not perfect. No military program is. But here is the bottom line: It works. I think it fair to say that the targeted killing program has been the most precise and effective application of firepower in the history of armed conflict. It disrupted terrorist plots and reduced the original Qaeda organization along the Afghanistan-Pakistan border to a shell of its former self.

Specifically with respect to a decapitation counterterrorism strategy, does killing a particular leader make a difference? Decide for yourself: Would history have been different if Washington, Lincoln, Grant, Roosevelt, or Eisenhower—let alone Hitler, Stalin, or Mao—had been killed at impactful moments in their lives? I certainly think so. Human experience plainly shows that when an organization loses key people its performance is compromised. As we have seen in business, athletic, and many other settings, leaders really do matter.

More specifically, in a recent issue of Foreign Affairs, Dan Byman explains why drone strikes damage today’s terrorist organizations: “Decapitation strikes create constant churn within organizations, and many terrorist groups do not have a deep bench of would-be leaders, making it difficult for them to replace experienced commanders.”

The Psychological Impact on Terrorist Leadership

Interestingly, beyond eliminating al-Qaeda operatives, the drone program degraded the terrorists’ effectiveness by impacting their psychology. Writing in 2015 Foreign Affairs Jennifer Williams observed:

Because drone strikes have been effective and because the United States targets them carefully, al Qaeda operatives have taken to restricting their own movement, staying inside, and avoiding gathering in large groups—all activities that are fairly integral to running a successful terrorist organization. It’s not easy to train legions of recruits on how to fire RPGs, build bombs, and shoot guns with any accuracy when you have to stay inside the house and can’t have more than five people gathered together at one time.

Byman reinforces the psychological impact in his Foreign Affairs article:

The constant fear of drone strikes and raids also undermines terrorist groups’ effectiveness—perhaps more than the death of individual leaders. Members cannot gather in significant numbers for fear of detection, making it hard to sustain large training camps. If groups communicate, they risk being tracked. Isolated and dispersed, terrorist groups then risk splintering into disparate cells that are difficult to coordinate.

In short, the mere existence of a drone program inflicts what Clausewitz might call “friction” that hinders terrorists’ ability to conduct malevolent operations.

Risk to Civilians, in Context

What about the risk to civilians? This seems among the most influential concerns undergirding Rogg and Faulkner’s piece. And rightfully so—the law has much to say about civilian casualties. But Rogg and Faulkner seem to miss important details. The legal aspects of the issue of drones are discussed in more detail below, but with respect to civilian casualties specifically, although often not well understood, the law in fact permits drone strikes even when it is certain that civilians would be killed or injured. The real issue, the International Committee of the Red Cross tells us, is whether or not the “incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof . . . would be excessive in relation to the concrete and direct military advantage anticipated.”

Have the civilian casualties been “excessive”? Even if you accept the casualty figures the Bureau of Investigative Journalism (BIJ) assembled for Pakistan, Somalia, and Yemen up to 2020 (when BIJ discontinued the program)—among the highest of various organizations’ datasets—that certainly does not appear to be the case. All civilian deaths are regrettable, but the BIJ numbers show a drone program that is astonishingly discriminate, especially in recent years.

Collectively, the BIJ figures (using the “maximum” total number killed and the “maximum” number of civilians who died) show that in the last ten years only 10.65 percent of the casualties have been civilians. In the last five years, that percentage has fallen to an amazing 5.17 percent. Given that the United States is battling an adversary who rarely wears a distinctive uniform, burrows into civilian communities, and employs human shields, that is an amazing record in the annals of warfare.

Remarkably, even Yale law professor Sam Moyn, certainly no fan of drones, nevertheless concedes in his stridently antiwar new book, Humane: How the United States Abandoned Peace and Reinvented War, that “for all their faults, it is also true that drones are increasingly the cleanest mode of war ever conceived. They hover nearby and, when the attack, do so with painstaking real-time targeting in the name of precision and thus civilian care.”

Support of the American People

Rogg and Faulkner write that “the United States must reconsider the precedents and prospects of its drone wars,” but in this assertion they will struggle to find support on either side of the political aisle, or among the American people. Administrations of both parties have used drones extensively, and they enjoy significant, bipartisan support.

For example, last September the Eurasia Group Foundation poll found that almost 70 percent of Americans believe drones are “less costly than sending US troops into combat” or that they are “an effective tool in depriving terrorists of safe havens in remote parts of the world.”

Earlier this month, the Chicago Council released its annual survey of foreign policy issues. It shows that just 31 percent of Americans thought “military tools such as drone strikes and military interventions” were used “too much.” Furthermore, a mere 39 percent believed “drone strikes against suspected terrorists in other countries . . . count as acts of war.”

Drones and the Law

Although they are not lawyers, Rogg and Faulkner raise legal issues about drone strikes. However, they stumble badly when they try to suggest that somehow Anwar al-Awlaki, the US citizen cum al-Qaeda operative who was killed by a drone strike in Yemen in 2011, was unlawfully attacked. Various lawsuits have sought to challenge the legality of that action, but none have succeeded. Rogg and Faulkner seem to want to second-guess the courts, but are hobbled by an evident misappreciation of the law and its application to drones.

Let’s review the basics. In terms of international law, the case for the targetability of al-Awlaki under the law of war as a member of al-Qaeda is rather clear. The Department of Defense Law of War Manual explains in chapter five that in an armed conflict, “belonging to an armed group makes a person liable to being made the object of attack regardless of whether he or she is taking a direct part in hostilities.” Furthermore, such “combatants may be made the object of attack at all times, regardless of the activities in which they are engaged at the time of attack.”

As the Supreme Court concluded, the United States is in an armed conflict with al-Qaeda, and Congress’s 2001 Authorization for the Use of Military Force—along with the president’s commander-in-chief authority under Article II of the Constitution—provides ample domestic legal authority to conduct military operations against al-Qaeda.

In fact, as scholars have pointed out, “Al Qaeda declared war against the United States and attacked U.S. military and diplomatic facilities numerous times prior to September 11.”

Thus, al-Awlaki was subject to attack based on his “status”; that is, his membership in al-Qaeda, an armed group engaged in conflict with the United States, was enough to lawfully target him, just as it would be for a soldier in an enemy army. It was not necessary to try to capture him, or to charge or convict him of a crime.

There was also a separate basis for striking al-Awlaki, and that was under international humanitarian law (which is, essentially, criminal law). This permits the use of force to disrupt an imminent threat. Curiously, Rogg and Faulkner did not cite Attorney General Eric Holder’s unclassified letter to Congress that outlined specifics as to how “it was al-Aulaqi’s actions—and, in particular, his direct personal involvement in the continued planning and execution of terrorist attacks against the U.S. homeland—that made him a lawful target and led the United States to take action.”

Understanding Policy Restrictions—Beyond What the Law Requires

The United States has established policies restricting drone strikes beyond what the law might require. The Obama administration recorded them in a public document, its “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations.” The Trump administration kept key aspects largely in place, and though the Biden administration put it some new limits, it has not yet announced any further changes.

The key here is that these additional restrictions are policies, not matters dictated by law. Policy restrictions have not been without criticism. In a 2016 article reviewing movie about drone strikes, Eye in the Sky, retired Lieutenant General Dave Deptula noted:

Of course, the military must minimize civilian casualties whenever possible, consistent with the requirements of military necessity. Yet current policies guiding the war on terror unreasonably restrict the use of airpower. Such policies limit civilian casualties that may result from attacking the terrorists, but allow the certainty of civilians being slaughtered at the hands of those same terrorists if they are not eliminated. That is self-defeating at best, and counterproductive at worst. To be sure, it is immoral.

Is US Citizenship a Bar to Being Targeted as Other Terrorists Are?

Nevertheless, Rogg and Faulkner authors evidently think that the law provides some sort of bar to targeting enemies who are US citizens. Actually, in the 1942 case of Ex parte Quirin the Supreme Court addressed the situation where two of eight German saboteurs caught in the United States were American citizens. The two argued that, as citizens, they were “entitled to be tried in the civil courts with the safeguards” guaranteed by the Fifth and Sixth Amendments. In finding it lawful to try them by military commission, the Supreme Court said that “citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency.”

Few would debate the proposition that one of those consequences of being an enemy belligerent is, as the DoD Law of War Manual notes, being subject to lawful targeting on the same basis as any other belligerent.

Inexplicably, Rogg and Faulkner did not address the preeminent constitutional law text on the targeting of Americans and, specifically, the al-Awlaki case: H. Jefferson Powell’s Targeting Americans: The Constitutionality of the U.S. Drone War. Citing a raft of legal and factual precedents, Powell makes it clear that despite US citizenship, an enemy belligerent like al-Awlaki is not entitled to the due protections that Rogg and Faulkner seem to think prior to being otherwise lawfully targeted.

Al-Awlaki had the opportunity to avail himself of a panoply of constitutional rights but chose not to do so. Judge Bates pointed out in his opinion dismissing a suit by al-Awlaki’s father prior to the drone strike:

While Anwar Al-Aulaqi may have chosen to “hide” from U.S. law enforcement authorities, there is nothing preventing him from peacefully presenting himself at the U.S. Embassy in Yemen and expressing a desire to vindicate his constitutional rights in U.S. courts. Defendants have made clear—and indeed, both international and domestic law would require—that if Anwar Al-Aulaqi were to present himself in that manner, the United States would be “prohibit[ed] [from] using lethal force or other violence against him in such circumstances.”

Rogg and Faulkner seemed puzzled as to why US courts are not involved in targeting decisions. In the 2010 case of El-Shifa Pharmaceutical Industries Co. v. United States, the US Court of Appeals for the DC Circuit explained: “In military matters in particular, the courts lack the competence to assess the strategic decision to deploy force or to create standards to determine whether the use of force was justified or well-founded.” Put simply, courts know they are not organized, trained, or equipped to apply their judgment as to who should or should not be targeted on the battlefield.

Furthermore, the courts have long deferred to the elected branches of government in matters of armed conflict—an issue of justiciability called the “political question” doctrine. In Gilligan v. Morgan the Supreme Court elaborated:

It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches, directly responsible—as the Judicial Branch is not—to the electoral process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.

The Question of Transparency

The involvement of the legislative and executive branches is important. In their essay, Rogg and Faulkner complain about a supposed lack of public transparency, but the reality is that there is transparency (as the Holder letter illustrates) in a classified setting not just within the executive branch, but also for members of Congress and, often, their staffs.

Still, while there was remarkable public transparency in the al-Awlaki case, military professionals know that cannot always be the case. Intelligence sources and methods have to be protected; the fact is that terrorists and other enemies can glean insights from public disclosures that will allow them to elude accountability. A democracy must take some risks, but care must be taken to ensure the ability to strike dangerous enemies.

Let’s also not forget that in Haig v. Agee, the Supreme Court observed that “it is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” It then cited with approval Snepp v. United States, in which the Court held:

The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.

In other word, secrecy is not some nefarious governmental design of recent origins (the Founders keenly understood the need for secrecy) but rather a practical, real-world necessity as the success of drone strikes depend upon a variety of sensitive intelligence sources and methods.

Capture or Kill?

On the topic of transparency, Rogg and Faulkner’s speculation takes the form of a very serious charge: “The Obama administration likely killed al-Awlaki because it was just plain easier at the time rather than trying to charge him with a crime, capture him, and expose secret intelligence in a US court.”

This illustrates a deep misapprehension of counterterrorism operations. Anyone familiar with such matters knows there is strong preference for capturing a terrorist as they can be a source of vital human intelligence. These operations can also produce a trove of documentary and electronic sources of intelligence. We should also not forget the risk a capture operation poses not just to US troops, but also to civilians where the capturing forces have to fight their way into hostile territory and exfiltrate out of it.

Moreover, the US Justice Department has no reluctance to try complex terrorism cases, and has done so with great success. On a practical level, I never heard—ever—anyone wanting to a conduct a lethal operation out of concern that lawyers might have a hard time dealing with a captive. Let me put it this way: those directing these kinds of operations are profoundly uninterested in the fact that lawyers may have a lot of work to do.

Concluding Thoughts

As I’ve written elsewhere, drone operations can be difficult and costly, and tragedies will occur—as happened in Afghanistan during the withdrawal. Yet to the extent that a reckoning is in fact needed, it is one that should inform the American people of what has become clear to the national security enterprise in recent years: we live in the age of drone warfare. Virtually all experts agree that drones will be intrinsic to warfare for the foreseeable future and that they will continue to proliferate.

In the counterterrorism setting, we might agree with Colin Clarke’s piece in War on the Rocks in which he contends that killing terrorists should be only one of many tactics employed as part of a wider strategy. Yet forgoing drone strikes would also be a serious mistake.

Of course, any use of force deserves to have scrutiny, and drone strikes are no different. But the scrutiny needs to be informed and take into account warfighting verities. One of those is the truth that refraining from military action—a drone strike or other use of force—does not necessarily save the lives of the innocent; indeed, it may place them in greater danger. As British philosopher John Stuart Mill observed in his 1859 essay, “On Liberty,” a “person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury.”

Charles Dunlap is executive director of the Center on Law, Ethics, and National Security and professor of the practice of law at Duke University School of Law. He retired from the Air Force in 2010 as a major general, and over his thirty-four-year career he served as a military judge, prosecutor, and defense counsel, as well as the chief of the Military Justice Division at the Air Force Judge Advocate General School.

The views expressed are those of the author and do not reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.

Image credit: Senior Airman Haley Stevens, US Air Force

,The Law of Armed—and Unmanned—Conflict - Modern War Institute,https://mwi.usma.edu/the-law-of-armed-and-unmanned-conflict/

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