24 May Two Problems with the “Near Certainty” Standard
A couple of people have suggested to me that I should be celebrating Obama’s adoption of the “near certainty” standard, because it is more protective of civilians than the principle of proportionality. I will not celebrate the standard, for two very simple reasons. First, I don’t believe for a moment that Obama will actually enforce it, no matter how pure his intentions. If you disagree, consider the following hypothetical (and obviously counterfactual) scenario:
The CIA learns through drone surveillance and a human informant that Osama bin Laden is having dinner with one of his wives inside his Abbottabad compound. It asks Obama to authorize a drone strike on bin Laden. Obama declines, because there is not “near-certainty that no civilian will be killed or injured in the attack.” On the contrary, there is absolute certainty that a civilian will be killed.
If you believe that Obama would decline to act in this hypothetical situation, I have a lovely bridge to sell you. But that is precisely what the “near certainty” standard would require.
Second, and perhaps more importantly, Obama should not enforce the standard, because it is fundamentally inconsistent with his obligation — with any President’s obligation — to protect the US. However skeptical of American power we may be, we have to acknowledge that there are, in fact, times when it is important for a President to use lethal force even though he or she knows innocent civilians will die in the process. The bin Laden hypothetical is one example; another is a situation in which a suicide bomber uses a small child as a human shield while approaching his target. Would we really want a President to refuse to kill the suicide bomber because he or she knows with absolute certainty that the child will die in the attack? The principle of proportionality, for all its subjectivity, exists for a reason: because no matter how attractive objective standards like “near certainty” may seem, anticipated civilian damage does, in fact, have to be balanced against the military advantage of an attack. The loss of innocent civilian life, though regrettable, is not always unjustified.
Note: I have restructured the post for clarity.