Legality Is Not Morality
The most common reaction to my post on Newtown and the drone program has been to point out that there is a difference between killing in peacetime and killing during war — that we are both legally and morally more willing to accept the loss of innocent life in the latter, even if the loss in both can be considered intentional. Peter Stockburger and Ian Henderson offered versions of that point in the comments to my post, and the point also featured prominently an eloquent post that Ben Wittes wrote in response. Here are Ben’s key paragraphs:
I mean merely to highlight here how one’s views of this subject will inflect one’s views of the moral dimensions of the accidental killing of children. If, like me, one is inclined to see drone strikes as an instrument of legitimate warfare—warfare authorized domestically by Congress and lawful under international law—one will tend to see the deaths of children they sometimes cause as accidental deaths in the course of legal and appropriate military action. Such deaths are tragic always. But we have centuries of moral vocabulary for such things. War is a terrible business, and one of the reasons for that it is that civilians who have done nothing wrong get killed; indeed, warfare by its nature turns what would otherwise be murder into a legal and protected act. And while the modern laws of war do require all sorts of efforts to protect civilians from harm, they also accept that these efforts will not always succeed. That rather moots all of Kevin’s fine-grained gradations of intentionality. The relevant question becomes whether one took adequate steps to distinguish civilians and to minimize civilian casualties–not ultimately whether those steps worked.
By contrast, if—with Greenwald and, in a more complicated way, Kevin—one is inclined to reject the legal paradigm of warfare for some or all overseas counterterrorism operations, the entire moral (and legal) calculus shifts dramatically. Then the deaths of children in drone strikes become the collateral consequences of illegal and immoral acts that are themselves extrajudicial killings. In such a framework, the underlying act, a strike on a presumably-terrorist target, is no longer exempt from the normal legal or moral strictures against killing; it is a murder of its own. And it’s hardly a defense (legally or morally) to the accusation of killing a child that his death was an accident in the course of murdering the adult next door.
There is much that I agree with in these paragraphs. I certainly agree with the idea that we cannot simply compare killing in war and killing during peace. I also obviously invited Ben’s focus on the legality of collateral killing during war by relying on criminal law to make the point that many national criminal-justice systems would consider the death of innocents in drone strikes to be intentional. Finally, Ben is absolutely correct to point out that how one views such collateral deaths is necessarily affected by one’s assessment of the legality of the drone program.
All that acknowledged, I still want to resist an idea that seems to underly all of the responses to my post: namely, that we cannot (or at least should not) consider collateral deaths caused by drone strikes to be immoral as long as those strikes were legal. I strongly disagree with that idea; I think it is possible — indeed important — to insist that the drone program is profoundly immoral even if no individual drone strike ever violates the laws of war. There is a vast philosophic literature on the difference between legality and morality, which I do not have time to discuss here. (Where is Patrick O’Donnell, aka The Man Who Has Read and Understood Everything, when you need him?) Suffice it to say that very few people are such thoroughgoing positivists that they believe legality and morality are coterminous, even if they disagree dramatically with each other concerning the particulars of the difference. Two obvious examples: “pro-lifers” don’t consider abortion to be moral even though it is legal, while the pro-euthanasia crowd doesn’t consider assisted suicide to be immoral simply because it is almost always illegal. Both groups simply reject the morality of the laws in question.
In one sense, that is my perspective on the collateral deaths caused by drone strikes. Although I do not believe that all drone strikes comply with the laws of war, for the reasons I discuss in my forthcoming article, I am certainly more legally sympathetic to the drone program than most of my fellow lefties/progressives. In particular, I am extremely skeptical of the oft-heard claim that drone strikes violate IHL’s principle of proportionality. As I have explained elsewhere, the principle of proportionality — to say nothing of the war crime that is based on it — is so amorphous and commander-friendly that it is essentially useless. Yet I still think that many, if not most, of the legally-proportionate collateral deaths caused by drone strikes are profoundly immoral.
My position would not change, though, even if I was more comfortable with the legal definition of proportionality. Accepting the morality of a particular law does not commit one to accepting the morality of any and all actions that comply with that law. Someone who is pro-choice can still morally condemn the wealthy family who uses abortion as a form of birth control. Similarly, someone who supports euthanasia can still morally condemn a person who talks an ill elderly relative into it because he wants his inheritance sooner rather than later.
That, essentially, is how I feel about drone strikes. I do think that the principle of proportionality is too accepting of military force. But my basic objection to the collateral deaths caused by drone strikes is that those deaths are nearly always unnecessary, because the drone program itself lacks any persuasive strategic justification. In my view, the military benefits of drone strikes pale in comparison to their long-term costs — ranging from radicalizing the affected populations to encouraging the US to rely on military force instead of other methods for dealing with terrorism. I thus believe that the drone program should be dramatically narrowed, if not eliminated completely. As a result, I think it is nearly always morally indefensible for the US to continue to use drone strikes even though it knows that it is virtually certain innocent men, women, and children will die as a result.
It is in that spirit that I offered my previous post. Collateral deaths in drone strikes are not accidents, even if they are not specifically desired. They are simply accepted as the necessary if regrettable cost of fighting the war on terror. That is intentional action as many countries understand the concept of intent. And it is immoral action in my view, regardless of the legality of strikes under the laws of war, because the drone program itself is immoral.