Drones: law, tragedy, and their future in war and counterterrorism

In the aftermath of the terrible consequences of the errant drone strike in Afghanistan, a number of writers have questioned the future of drone warfare.  I am not among them as I believe the future is drone warfare or–at least–drones will be an indispensable element of tomorrow’s conflicts.  Over on West Point’s Modern War Institute website I have a new essay, The Law of Armed—and Unmanned—Conflict, where I counter some of the arguments being made against drones. 

The essay addresses some of the legal questions associated with using drones, including the legality of employing them against threats posed by U.S. citizens who have become enemy belligerents in an armed conflict.  Such strikes are very rare, but the one against Anwar Al-Awlaki still draws some critics.  As I explain in the essay, the targeting U.S. citizens who join enemy armed groups like al-Qaeda must comply with international law.

In terms of domestic law, I agree with my colleague Jeff Powell (whose book, Targeting Americans: The Constitutionality of the U.S. Drone Wars, is the premier text on this topic) that U.S. citizens who joins al-Qaeda are not entitled to due process under the Constitution, especially where the action against them is backed (as it was in al-Awalki’s case) by Congress in its 2001 Authorization for the Use of Military Force.

With a Predator drone, Middle East, 2004

I also argue that from a military perspective, drones are effective, and they are among the most discriminate means of apply force in the world today.  Drones may not be a panacea, but they ought to be a tool that supports an overall counterterrorism or warfighting strategy.

Anyway, take a look here.

The Kabul drone strike investigation report

While we are on the subject of drones, the Department of Defense independent investigation of drone strike that tragically killed ten Afghan civilian in August has been completed.  The report itself is classified, but a news conference was held in which Lt. Gen. Sami D. Said, the Air Force Inspector General.

Much of the press coverage focused on his conclusion that although errors occurred, there was no misconduct warranting criminal charges.  It sounds to me that his conclusion was the correct one, as the legal standard involve is whether or not those involved acted reasonably and in good faith based on what they knew prior to the strike.

Lt. Gen. Said’s findings include something that was not well-reported, that is, the circumstances of the strike was unusual, and not the normal way drone strikes are typically conducted.  Here’s what he says:

The other thing I want to say up front is this strike was unique. So as I’m talking you through it, if you try to equate it or correlate it to strikes you’re familiar with — classic, over the horizon CT [counter-terrorism] strikes — you would be comparing apples to oranges. So please don’t do that.

It was unique in the sense that it was a self defense strike, executed in self defense, unlike what you’re accustomed to, which is by far the norm, where you have a long time to do things like pattern of life. You have days to assess the intelligence and determine how you’re going to execute the strike. It’s a very different construct and very different execution. So I wouldn’t conclude anything from this particular strike, which was very unique, to the norm that is exercised with over the horizon CT strikes.

In a previous post, I tried to explain that over-the-horizon (OTH) strikes are challenging, but I do agree with Lt Gen Sami that a self-defense strike like this one was conducted under very difficult circumstances.  He pointed out:

We are one day from the exfil, so the ability for defense had declined. We’re concentrated in one location, with a lot of threat streams indicating imminent attacks that looked similar to the attack that happened three days prior. So you can imagine the stress on the force is high and the risk to force is high, and not appreciating what I’m about to say through that lens I think would be inappropriate.

He did cite “confirmation bias” as a problem the investigation discovered, and also recommended that there be better information sharing outside of the strike cell.  He specially called for “red-teaming, if you will.”  He explained it to be “somebody pushing back to break the confirmation bias in a red-team function, if you well, a dedicated threat team function, going hey, it could be this, but it could also be that, why do we think it’s this?”

General Said also explained that “You have to realize that strike cell was dealing with multiple stretch streams tracking multiple vehicles at any given time, right, this is not the only thing they are tracking.”

Mistakes will happen

General Said added this truism to his explanation of the incidents: “mistakes do happen in military operations.”  Even with all of our technology, things will inevitable go terribly awry from time to time,

I would add that mistakes are especially prone to occur in circumstances where enemy combatants don’t attempt to distinguish themselves, and the burrow into urban environments.  Sadly, I doubt we’ve seen the last such incident as the U.S. battles terrorists around the globe.

It seems that some reporters and pundits – operating, of course, with the benefit of hindsight – cannot fathom how this tragedy could occur.  My own view is that we see in this incident an accumulation incidents to form a lethal form of what the great theoretician and soldier Clausewitz calls ‘friction’ in war.  Perhaps these quotes from him might provide some insight:

“Everything in war is very simple, but the simplest thing is difficult.  The difficulties accumulate and end by producing a kind of friction. . . .  This tremendous friction . . . is everywhere in contact with chance, and brings about effects that cannot be measured, just because they are largely due to chance. . . .  Moreover, every war is rich in unique episodes.”

I cannot imagine the horror and tremendous sadness those in the strike cell must have felt when they learned of the misidentification of the target.  Personally, I can understand, for example, how one might not expect that a civilian would be running a water distribution program out of the trunk of car, but that apparently that was what was actually happening.

We must learn all the lessons possible, do the best we can to limit the times that the ‘friction’ of war pays such a horrible call, and pray for all those who have suffered.  What we must not do is to let this tragedy inappropriately diminish the use of this weapon in fighting the perpetrators of terrorism wherever we find them.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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