Am I Arguing a Strawman about Drones, Civilian Collateral Damage, and Discrimination?

by Kenneth Anderson

In comments to my post below about the strange new respect for drones, Kevin queries whether I’m arguing a strawman.  The “circles” that he and I both move in — academics, NGO activists, and so one — he suggests, have never seriously questioned that drones are more discriminating.

I don’t suppose that this is one of those arguments that goes anywhere, so I don’t have much more to add than this.  Since I first published on this back in 2008, I’ve done upwards of fifty conferences, panel discussions, debates, presentations, etc., in which I was the defender of drones and targeted killing.  I flipped back through the notebooks I use for making notes on my comments at these meetings; the central issue was civilian casualties at nearly every discussion.  I just don’t think it’s accurate to say otherwise.

That’s so even when it was run through as being a violation of law for this or that reason.  One reason I’m so aware of civilian casualties and lack of discrimination as being a big issue is just how little information was available over the last several years, putting me and others defending drones in the uncomfortable position — even today — of asserting greater discrimination with little back it up.  The levels of suspicion about how many people were actually being killed by hellfire missiles — that discussion went on for years.  For a long time, the assertions by local Pakistan press on casualties, despite questions about local Taliban manipulation of figures; likewise figures given by the Pakistani army.  Then the New America Foundation and Long War Journal started attempting to do casualty counts, and there was much discussion about how many people were getting killed on those counts, although each of those sources was properly cautious about the lack of corroboration and independent reporting.

It was a big deal — and much derided — when the CIA decided to start leaking claims from Panetta and others that the civilian casualties from their strikes were down in the “dozens.” I was openly laughed at on at least one occasion for quoting Panetta on lowering civilian casualties (Panetta? Director of the CIA?  On drones being discriminating?  Sparing of risk to US forces, sure, but discriminating?).

Even now, there is very little to go on in order to say what the casualty levels are.  It’s just that there seems to be a general agreement that it is no longer the important discussion.  Starting a year ago, I started arguing that the real issue for drones was not civilian casualties and proportionality, but instead necessity and the determination of targets.  But up until a month ago, the pushback on that was both sharp and relentless — necessity was an issue, but I was merely wishing away the civilian casualties issue, because I had no defensible data, just leaked quotes from self-serving officials.

Moreover, there was “blowback,” blowback was driven by the civilian casualties and how they were seen by broader Muslim publics.  Blowback — resentment among Muslim population against drone technology — started out as a follow-on to civilian casualties from drones.  Now, all of a sudden, to judge by David Ignatius’s latest column, blowback is an independent problem even if civilian casualties are lower.  The weapon might be objectively more discriminating and civilian casualties objectively lower, but still shouldn’t be used.  That is the implication of Ignatius’s latest column, and that is a big shift in the framing of the blowback claim.  Meanwhile, writers relatively new to the discussion, such as Slate’s William Saletan, have trouble even getting their minds around civilian casualties or discrimination as being the leading issue before they joined the debate.

I’ve done somewhere around, what, fifty of these discussions in the last couple of years, and I’ve got a pretty good idea of the arguments I was facing and what general assumptions have driven the debates within the academic, policy, advocacy, and related communities.  Possibly I misunderstood what all those people on the other sides of those debates were saying, and I needn’t have worried so much that, without any official government statements, reports, figures, etc., especially from the CIA, I was merely repeating a leaked statement from Panetta or some unknown DOD person in saying that the civilian casualty counts were not as high as tossed around.

The skepticism about collateral damage in all those public discussions seemeed to be exactly that, however.  For a long time, all that was published on the other side of the NAF study was a comment in NYT, WaPo, and WSJ stories, a brief leaked comment, from a CIA official, saying that the civilian casualties from CIA strikes was in the “dozens” and not hundreds, let alone thousands.  Any idea what it is like sitting on a podium at a large public conference and quoting that as your reason for saying that civilian casualties are not really the big issue and let’s talk about identification of targets?  A handful of people in the last year or so were struck by my focus on target identification and necessity — thought it was right, but also thought that unless I had much better factual sources on casualties, I had no basis for wanting to unilaterally shift away from civilians collateral damage to who was being targeted.

So, whether Libya is the driving force or not, I’m in a pretty good position to say that in a remarkably short time, this “community” seems to be accepting that the technology is discriminating and civilian casualties not the big issue. As someone who has been on that side of the debate for years, it is a remarkable shift, and is not occurring now for any obvious reason such as a change in official public data on civilian casualties in Afghanistan and Pakistan.  There is, however, a sudden shift in where and for what kind of war drones are now being deployed.  That shift in perception has happened faster than nearly any issue like this that I’ve debated publicly.   In mere weeks, and oddly since the beginning of the Libya war — fast enough and far enough so that I have to rewrite some paper sections to take account of the fact that readers of those papers are likely to say that some of these discrimination issues as no longer issues.

http://opiniojuris.org/2011/04/27/am-i-arguing-a-strawman-about-drones-civilian-collateral-damage-and-discrimination/

13 Responses

  1. Ken,

    Thanks for the response — which is more than enough to convince me that, in fact, I’m the one who moves in rarefied circles.  All I can say is that the increasing acceptance of drones’ precision strikes me as a very encouraging development, because it means that we can focus the discussion on what has always struck me as the more important issues: namely, the legal regulation of drones, especially outside of armed conflict, and the role of military force in counterterrorism efforts.  I don’t imagine we would agree on very much with regard to either issue, but I hope agreeing about the precision of drones will at least facilitate having a productive discussion about them.

  2. Kevin – agreed, these are the issues.  I’d add to that the need for the CIA to release something that explains how it sees its (different) activities as being legal in this area.  I have never understood why it’s a good idea for the CIA never to defend its legal and policy views in public – but instead leaking bits and pieces to the papers.

  3. These piece produces a couple of judgment errors and I shall name only two:
    (1)    It violates the most fundamental rule of law, that nobody should be judge of her own conflicts. In this case the U.S. demands for itself this role. As a country with the highest concentration of lawyers on capita, you prove that you are not able to solve your conflicts without judges. So, if Americans sue each other a lot, and if the U.S. is the country with one of the greatest concentration of incarcerated person, this proves that the Americans are not always right. Therefore how can you claim that when it comes to your relation with the killed Pakistani’s there are no courts and judges necessary? How can you be the sole arbiter of your own conflicts? How can you decide yourself the you are right and the others are wrong? After all the others might doubt that there is such a thing as a war on terror, or that the war on terror makes it legal to blow up wedding parties in Pakistan.
    (2)    Begging the question. This is related to point one. You just beg the question that you are right. Since there is no court where one can challenge your argument and since you impose your arguments by drone on others, you are just begging the question.   

    If you want to prove your arguments, just give the others the chance to fight them in court.

  4. Ken

    im gald to see ths development. i do hope that leaving the civilian casualties issue, will give you more time to focus on other aspects of targeted killing.

    since there was no video of the conference, i would love to here your comments to the articles presented in “using targeted killing to fight the war on terror”. especially in response to ohlin and martin and waldron.

  5. Response…
    When my article was published ( http://ssrn.com/abstract=1520717 )
    there were those who argued that civilian casualties were disproportionate re: use in Pakistan.  We should also recall that drones are merely a “platform.”  It depends on what you put on them as weapons systems and, then, how they are used in particular contexts and with respect to legal principles of reasonable necessity, proportionality, and so forth.

  6. Mihai,
    You are free to argue against Ken as Kevin does but your comments regarding the United States as having the most criminals in jail and as being the most litigious and therefore “this proves they are not always right” borders on the frivolous.
    BTW please identify the nation that does not accidentally blow up civilians during war.  You cannot ban war – sometimes its imposed (ie self-defense) sometimes its just justified.  (Sadly, sometimes its wrong and fought for glory and monetary gain.)  The US does a very good job overall avoiding civilian casualties compared to other nations. Historically and recently, nations have purposely targeted civilians.  That is different than collateral damage.  If drones contribute to that noble goal of minimizing civilian injury than drones are good.


  7. @JohnnieWalkerBlue
    What if I was a Pakistani and I didn’t believe there is a war? From my point of view the whole war on terror is just an invention. What if I believe the drone that blew up my wedding party was just a plain case of murder? And even if I believe there is a war, I might disagree that it is a legal war. Or I might disagree that one specific act of war was legal.
    The point is that in U.S. when Johny bombs Pete’s wedding party one does not allow Johny to decided himself that he had a good excuse to do it. So why would I allow the U.S., if I were a Pakistani, to have the last word about the legality of this action that killed my relatives?
     

  8. Mihai I hear you – its all relative some folks may claim the US is murdering, some may claim the US is “liberating” others will claim other things.  But I hope you agree that at a minimum, the US does not purposely target civilians which is something other nations (as well as terrorist or liberation) organizations regularly do.  There is a difference.
    Here we are on a dark plain where Left is Right and Right is Left. And we can say that about so many events in the world.  Peace to you.

  9. @JohnnieWalkerBlue

    When you strongly believe that you have evidence that John Doe raped and killed your four year old daughter, you will never give JD the last word. All that you want is to be able to drag him before a court of law. Why should this be different when U.S. kills other people?

  10. It is striking that Kevin claims to be encouraged by the accuracy of drone strikes when his comment to my post less than 5 days ago specifically criticized a strike for being indescriminate.  Perhaps he believes that drones are more accurate but still illegal in most cases.

  11. Mihai, my point is that the thug who rapes/kills is doing so purposely – there is criminal intent.  The US forces are not instructed to intentionally harm non combatants.
    Yes, it can and does happen unfortunately.  It happens when rogue US military personnel refuse to obey orders not to harm civilians.  These military personnel are violating policy – so you cannot objectively criticize the US govt.
    It can also happen when enemy combatants play hide and seek in civilian areas or fire upon US military targets/personnel from civilian areas thus drawing retaliatory fire.  In that case, it is the enemy combatants who are purposely drawing civilians into harm’s way.

  12. Michael,

    My comments are perfectly consistent.  I believe drones are more accurate than regular bombing, yet I also believe — as I pointed out in the comments to your post — that the better error rate of drones does not prevent their use from being counterproductive from a “hearts and minds” standpoint.  I also do not think that the use of drones in Afghanistan or Pakistan — unlike in Yemen — is illegal.  I’m simply against the wars.

  13. Response… ” never to defend its legal and policy views in public”  … that might lead others to think they always had an obligation to do that and each time their reasoning would be put to the test and then it would have to be put to the test in some impartial arena and then well, why worry about that? 

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.