DeM Banter: Great piece from Richard Epstein and Hoover…a bit of a deeper dive into the issues at stake here. Again… wonder where this will end up?
Right now, the United States and the larger international community is caught in a difficult debate over the use of drones against enemy combatants. Domestically, there is an odd confluence of views. The Obama administration’s policy on drones has been congenial to the conservatives, who oppose him on domestic issues; but his liberal allies, like the American Civil Liberties Union, are dismayed by what they perceive as his administration’s overuse of drones in Pakistan from 2004 to 2012. Has the United States pushed its drone attacks too far or not far enough? Have too many potential targets escaped attack because of an undue fear of excessive “incidental” or collateral damage to the lives and property of innocent non-combatants?
Self-Defense and Just War Theory
The jurist Hugo Grotius, in his 1625 masterpiece De iure belli ac pacis (On the law of war and peace), sought to apply a natural law approach to the problem of just war. Key to his inquiry is the need to reconcile the personal imperative of self-preservation with the due recognition of the like rights of other individuals, without which human society cannot survive.
Among individuals, everyone accepts that a person can use force against actual force. Yet, it is frequently unclear just how much force is needed to subdue a given attack. Even in self-defense settings, the law has to worry about excessive and disproportionate uses of force. No one should stand down against a threat of death or serious bodily harm. But if the only way to avoid a pinprick is to kill an adversary, the innocent victim has to forgo self-help to resist attack; he must rely solely on an uneasy combination of private damage claims and criminal sanctions to protect his interests. This imperfect legal regime lets at least some lucky wrongdoers profit from their own wrongs.
The requirement of imminent harm introduces still other complications. No one should have to wait for the blow to land to respond to force, for by then it may be too late. Conversely, moving too quickly may let people inflict harm against persons who had no intention to carry out an attack. In general, the law gives an uncertain advantage to the person who is under an apparent assault. But it is all too easy for these rules to go astray in the confusion that surrounds particular encounters. Just which party, in a heated dispute, first moved from words to actions?
The imminence requirement can also impose undue limits on the right of self-defense. Many attacks are organized in advance of the actual blow. Even if the potential victims are not in civil society, they are allowed to neutralize their enemies before they attack. The state, when acting on their behalf, is surely allowed to do so as well. Under the criminal law, the state can punish not only attempts, but also conspiracies to commit violence, long before any attack is mounted. In addition, the state can maintain all sorts of extensive surveillance to spot and stop criminal actions before they can occur.
Just War Theory Among Nations
Translating these spongy principles of self-defense from private altercations to large-scale disputes between states is difficult. The most obvious difference between the two situations is that there is no unified supranational agency in international affairs—the United Nations included—to mediate or control disputes among sovereign nations. To be sure, nations can act alone to maintain surveillance and initiate the use of force in self-help against their rivals. But bad nations have the same options, so that these steps, standing alone, do not offer an effective solution to a nation that must remain in a state of constant military and intelligence readiness against foreign enemies, which include both nations and rogue individuals who can strike at any time.
This brings us back to the drones. These devices can both spy and strike against enemies that are beyond the territorial reach of the United States or any other threatened nation. Drones can be deployed long before any enemies are in a position to strike against the United States or any of its allied nations. Yet any preemptive attack could be imprecise and strike innocent individuals as well as enemy combatants. In the international setting, the stakes are always higher, the intermediate options are fewer, and the error rates in both directions are always greater than in simpler domestic situations.
Miscalculations are likely to draw in third nations, at which point the use of force may easily spin out of control unless cooler heads prevail. To be uncomfortable with the rules governing the use of force in domestic disputes is to suffer from wholesale anxiety when facing the international landscape.
The “Rule of Reason” on Self-Defense
So what should be done? The first critical step is to rule out any categorical position that allows or forbids drone attacks on a wholesale basis. The odds of success, the value of the target, and the expected risk of collateral damage vary too much from case to case to permit any uniform rule. My NYU colleagues, law professors Samuel Issacharoff and Richard Pildes, hit the right tone in their 2012 article “Targeted Warfare”: “It might well be that the uses of lethal force, in the form of targeted killings of specific individuals through measure like drone attacks, are more appropriate and justified against high-level commanders than low-level foot soldiers.”
Their position is exemplary for its equivocation—note the “might be,” the “more appropriate and justified,” and the huge unexplored range of intermediate cases between “high-level commanders” and “low-level foot soldiers.” Their formulation thus raises as many questions as it appears to answer. But that is exactly the right approach to take in this instance, for there is no sensible way to reject their conclusion, which is broadly consistent with President Obama’s current stance on drone use.
The only workable legal regime for using drones rests on a porous “rule of reason” that tries to make determinations—sometimes with ample deliberation and other times on the fly—about whether a drone attack should be taken, in what form, and at what time. The correct approach tries to set up a system of internal reviews and safeguards in the executive branch to limit the risk of abuse. Multiple moving parts make it virtually impossible to subject individual decisions to either judicial or legislative oversight. Both are too slow to be of any consequence and both get legislators and judges unhappily involved in foreign affairs in individual cases. So the decision lies in the hands of the executive parties that have to live with the political consequences of disastrous outcomes, including denunciations from members of Congress delighted not to be on the front lines.
There are of course “easy” cases. No one did, or could, dispute Obama’s gutsy call to take out Osama bin Laden, even though it involved a violation of Pakistani airspace and carried the high risk of a very bad set of outcomes. By the same token, the Israelis are right to insist that they can use aggressive means to respond to the Hamas attacks, while constantly asking themselves whether or not they made some serious mistakes along the way.
Drones & Constitutional Complications
The sobering conclusion of this analysis is that drone use will always lie on the borderline of the rule of law. It is therefore highly improbable that anyone could devise a workable system of constitutional rights to protect persons against unlawful drone attacks by the U.S. or other sovereign nations. The ACLU tends to attach more weight than most to due process and individual privacy. In its Congressional testimony, it has taken the position that some use of drones in international affairs is unconstitutional, especially those targeted against United States citizens.
It is likely that the ACLU’s position will gain traction before the courts of law and the courts of public opinion. On the former, it is worth stressing repeatedly that our major constitutional safeguards for individual rights extend to all natural persons, whether citizens or aliens. The writ of habeas corpus, for instance, is available to aliens as well as citizens. The Fifth Amendment states that “no person shall be deprived of life, liberty or property, without due process of law.”
In ordinary criminal procedures, the foreigner cannot be convicted by a preponderance of evidence standard when due process requires the government to prove the key elements of the offense beyond a reasonable doubt. By the same token, the word “due” has a self-conscious lack of precision, precisely because, from the earliest times, it has been well understood that the same level of process is not due in all types of cases. Thus it has been uniformly held that in tax cases, for example, the government can take the money first and only thereafter give the individual the right to dispute the tax. The balance of convenience is such that the government need not run the risk of taxpayers absconding with revenues so long as it is ready to make refunds in the event that the taxpayer sues it to recover the money paid.
It is even more evident that any process that is due on the battlefield in wartime is far less demanding than that which is required in a civilian trial. When potential criminals are arrested, a standard military procedure under the Uniform Code of Military Justice requires all of the safeguards of a civilian trial, even for cases tried outside the theater of war. Thus far, drone attacks have only been ordered against individuals who refuse to submit to the jurisdiction of the United States, and who are located outside of its territory. Clearly, the United States should, and would, afford a trial to any citizen that is prepared to surrender himself into the custody of the United States. That same privilege should be afforded to any alien who is suspected of having committed various crimes against the United States and its citizens overseas.
The potential targets of drone attacks have no intention of subjecting themselves to the authority of the United States, so the only option left is to pursue them in territories where the United States exerts no effective control. In these settings, the futility of trial forces the government to take the controversial military option.
In dealing with that calculus, the United States could take citizenship into account in making its decision. But which way should that cut? Does a citizen deserve extra rights against the government that he has betrayed? Or should he be subject to additional sanctions? There is no clear answer, which is why U.S. policy on drone use for targeted attacks will remain an open wound in the body politic. It is both frightening and necessary to have to place such extensive trust in our public officials. But, when it comes to matters of national security, there is no other choice.
Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago. His areas of expertise include constitutional law, intellectual property, and property rights. His most recent books are Design for Liberty: Private Property, Public Administration, and the Rule of Law (2011), The Case against the Employee Free Choice Act (Hoover Press, 2009) and Supreme Neglect: How to Revive the Constitutional Protection for Private Property (Oxford Press, 2008).