The Case for Drones, or, My New Essay in Commentary Magazine

Noticing President Obama’s big speech tomorrow at the National Defense University on US counterterrorism policy, Commentary Magazine has decided to release today my new essay, “The Case for Drones.”  It will appear in the print journal in June, but has been posted with a free, open link on the website now.

A couple of caveats for OJ readers, if you’re inclined to read it (close relatives of mine have declined on grounds they’ve heard me on this too much already).  Commentary is a conservative magazine, and this is an argument for drones written with a particular audience in mind – conservative readers and Republican members of Congress in particular.  It’s an argument about effectiveness and ethics, not law as such; it’s an overtly politically conservative version of the much more centrist, principled, and neutral argument that, for example, Ben Wittes and I sought to make in the Oxford Union debate.  I hope that some folks still might find it useful as a thumbnail sketch in non-technical form of some of the leading arguments, objections, and replies in this debate.

By political here, I mean both conservative, but also strategic – it’s arguing to Congressional Republicans that they ought to be supporting the President in his basic drone policies, if for no other reason than that there might be a Republican president someday, and he or she ought to have the same national security tools available that the current president has.  Though I do agree with Harold Koh, Jeh Johnson, and other Obama former officials that there is room to “discipline” drones – the problem is to discipline their use and processes into something that has a sturdy and permanent legislatively blessed structure on a lot of fronts.  That’s political in the sense that it deliberately seeks to appeal to Republican self-interest as a matter of politics and strategic play.

The less political and strategic, more principled and neutral, version says that the President and Congress ought to be seeking something that Ben Wittes and I call “institutional settlement” – borrowing the term from other fields – in which the center right and center left undertake legislative reforms to process, accountability, oversight, secrecy, and other matters in order to leave the next president with something that is, in an important way, simultaneously less than pure executive discretion, but also more than it.  What’s given up in discretion is given back with the greater legitimacy and stability that comes from a centrist blessing by the Congress.  Ben Wittes and I put this notion of institutional settlement at the center of our new book, Speaking the Law: The Obama Administration’s Addresses on National Security Law.  The book is being brought out serially online and then will be published as a hardback by Hoover Institution Press.  We’ve just released Chapter 2.  (We are somewhat torn, though; our public spirit hopes that some important things will change with the President’s speech, while our narrow self-interest hopes we won’t have to rewrite bunches of things.)

OJ is an international law blog with an international and international law readership.  I realize that for many of you, the idea that any of the stuff in either the Commentary article or the Anderson-Wittes book represents the “center” must seem strange, even perverse.  There are probably few areas in the law where there is such a problem of parties talking past one another, ships passing in the night.  I don’t know that it can be avoided, however; parties begin from very different starting points on many, many different fundamental matters, so different that there’s not really room for argument.

That’s a problem even where everyone admits the differences of starting points and the difficulties of finding points of engagement to debate.  It gets even worse where different positions can start out in the same language – but intend entirely different things by it.  So, for example, if you are the ACLU or a UN Special Rapporteur or someone coming from the position that this is just all substantively bad stuff, you might very well use the language of “reform” the drone program or “discipline” drones or something.  But your understanding of that is going to be very different from, say, the position in Speaking the Law; quite possibly, your understanding of reform functionally might all but eliminate the practice.  Which might perhaps be the right legal or ethical or practical approach – but that same language, as Ben and I use it, or as I rather imagine President Obama’s speech will use it, means instead, cabin it with more process, but fundamentally do so in order to make it permanent, not eliminate it. I don’t know that there’s much way to bridge that kind of fundamental gap between those in the debate.