David Cole on the drone strikes

(Elon, NC) In his Feb. 8 Washington Post op-ed, David Cole makes the argument that finally meets my intuitions about the drone strikes.

Cole, a strong civil libertarian, argues that it is not illegal or intrinsically wrong to order the death of Americans:

Killing is not like torture. Torture is never justified, even in wartime. But killing is an integral, if unfortunate, aspect of war. Targeted killing is therefore not inherently illegal; after all, it beats the tragically untargeted killing used in the World War II bombings of Dresden, London and Hiroshima.

Nor is it always forbidden to kill an American. If a U.S. citizen were fighting alongside al-Qaeda on an Afghan battlefield, would anyone question the right of U.S. troops to shoot and kill him? And President Abraham Lincoln violated no constitutional guarantee by authorizing Union troops to fire on American citizens fighting for the Confederacy.

We could add many precedents. Virtually every administration could provide examples. For instance, under President Jefferson, the United States fought Algeria, and (according to Wikipedia), “[Commodore] Preble attacked Tripoli outright on July 14, 1804, in a series of inconclusive battles, including a courageous but unsuccessful attack by the fire ship USS Intrepid under Captain Richard Somers. Intrepid, packed with explosives, was to enter Tripoli harbor and destroy itself and the enemy fleet; it was destroyed, perhaps by enemy guns, before achieving that goal, killing Somers and his crew.” A fire ship that actually entered a harbor would have a high probability of killing noncombatants and citizens of noncombatant nations; a drone strike can be targeted more precisely.

President Lincoln directed a war that caused the death of 258,000 American citizens who wore Confederate uniforms, plus an unknown number of civilians killed in bombardments, burned cities, sieges, etc.

President Clinton ordered Yugoslavia bombed (for human rights reasons, which I supported). Human Rights Watch estimates that up to 528 civilians were killed. Three Chinese journalists were killed when NATO, using a CIA map, mistakenly hit the Chinese Embassy. Again, a drone strike could work better than a bomb.

This is not to say that it is smart or effective to use frequent drone strikes in countries like Pakistan and Yemen. I think that is probably counter-productive, on balance. But, as Cole writes, “when it comes to the particular legal issue [of] whether it is legal to kill Americans with drones,” this is the main problem: “the government [can] kill its citizens in secret while refusing to acknowledge, even after the fact, that it has done so.” Secrecy prevents even the after-the-fact accountability that would allow US citizens to decide whether our government has acted wisely and justly in our name.

It seems to me that the fix is fairly straightforward (although unlikely, given the politics). By statute, Congress should require that every American government action known to have caused deaths be publicly disclosed. A delay for national security reasons is fine, and there could even be a provision to allow exceptions (e.g., to protect sources)–subject to a federal judge’s review. But blanket secrecy is unacceptable.

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About Peter

Associate Dean for Research and the Lincoln Filene Professor of Citizenship and Public Affairs at Tufts University's Tisch College of Civic Life. Concerned about civic education, civic engagement, and democratic reform in the United States and elsewhere.