Two Problems with the “Near Certainty” Standard

by Kevin Jon Heller

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.

http://opiniojuris.org/2013/05/24/a-thought-experiment-concerning-the-near-certainty-standard/

7 Responses

  1. …Assuming they don’t change the status of spouse to combatant.
    Did she happen to be using a steak knife during dinner?

  2. Kevin: absolutely correct on this one!  Imagine the new “terrorist” manual:  be sure to have a civilian who is not a DPH or DPAA with you at all times [assuming that the “terrorist” knows what a DPH or DPAA is]

  3. p.s.  the manual alse reads:  make sure that everyone knows that you are a “civilian,” because the U.S. will apparenly no longer target a “civilian” who is a DPH in a theater of war or a DPAA in self-defense.

  4. Jordan,

    Exactly. As I tweeted, the US better hope AQ doesn’t read Obama’s speech. If they do, they’ll know that they can protect themselves from drone strikes by never going anywhere without small children around.

  5. All of this demonstrates as well that whoever wrote this speech had no input from specialists on the law of self-defense and/or the laws of war from the State Department or the Department of Defense.  Who is advising the President on drone targeting?

  6. The use of the “near certainty” standard:
    Thank you for your clarity. It is clear that in the context of the use of Drones, President Obama is attempting to handcuff America’s use of Military force, to the 4th Amendment, the fundamental cornerstone of american “criminal” law enforcement. PResident Obama’s goal is to change the way our forces engage threats to our nation. The Near Certainty standard as mentioned in Justice Scalia’s Delivery of the Majority opinion in Scott v. Harris, 550 US 372, 380 (2007)  was used in the context of whether “an officer [can] take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders?”. Obama views cohorts and associates of terrorists (american or otherwise) in the same way as he views innocent bystanders. It is also apparent that Obama views the danger posed by the speeding motorist as similar to that of a terrorist (american or otherwise) encamped on foreign soil. 
    Incredibly, This is so even if the terrorist is actually planning or carrying out an attack.

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