New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

Drone Wars: The Transformation of Armed Conflict and the Promise of Law, Peter Bergen and Daniel Rothenberg, eds., Cambridge University Press, 2013

Abstract

This essay argues that four commonly repeated concerns surrounding the use of drones to target identifiable individuals for lethal force rest on various legal and historical misconceptions and misunderstandings. These concerns are that: (1) that targeting specific individuals for death is a modern innovation in military practice; (2) that greater modern technological capacity to project force from a distance itself raises entirely new legal issues; (3) that drones and targeted killing pose a major threat to the humanitarian purposes and aims of the laws of war; and (4) that drone warfare is likely to make the use of force “too easy.” After addressing these issues, the essay turns to what is instead most distinctive about drone strikes from a legal, moral, and policy perspective. The issues that are truly critical revolve around an emerging transformation of the nature and norms of modern warfare; these issues reflect the more profound fact that we are moving toward a world that requires the individuation of personal responsibility of specific “enemy” persons before the use of military force is considered justified, at least as a moral and political matter.

This transformation is pervasive, with sweeping ramifications. Even as the U.S. government asserts that it is at war, it is not mechanically applying the traditional law of war principle that lethal force can be directed against any member of the enemy armed forces. Instead, the government is individuating the responsibility of specific enemies and targeting only those engaged in specific acts or employed in specific roles. The government is making what has all the appearance (and reality) of adjudicative-like judgments based on highly specific facts about the alleged actions of particular individuals. The key legal, moral, and policy questions then become how an appropriate framework for making such individualized decisions should be structured. From an ex ante perspective, what kinds of processes should be considered adequate to make these judgments? Which institutions should play what roles in such individuated judgments about the identity of “the enemy?” From an ex post perspective, what kind of review and accountability ought to be required of these decisions? After clearing the ground of the more common misperceptions about the use of drones, the essay begins to develop a general framework for designing processes and institutions that offer appropriate answers to these essential questions.

Date of Authorship for this Version

6-2013

Keywords

national security, terrorism, drones, use of force, presidential power

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