UAS (unmanned aviation systems), popularly known as drones, are playing an increased role in armed conflicts. They are used both for collecting intelligence and for deploying lethal force. Whereas in 2007 there were 74 drone strikes in Afghanistan and 5 in Pakistan, by 2012 the military was executing an average of 33 drone strikes per month in Afghanistan, and the total number of drone strikes in Pakistan has surpassed 330. Drones have been employed in multiple theaters of the counterterrorism campaign, including Yemen, Somalia, Iraq, and Libya.

They are now included in the arsenal of many nations including Israel, China, and Iran. They have even been operated by a non-state actor (Hezbollah) which has flown at least two drones over Israel. Several nations are currently developing drones that will be able to carry out highly-specialized missions, for instance tiny drones able to enter constricted areas through narrow passages. Given the move by the American military away from deploying conventional forces on the ground (in Iraq and Afghanistan) to a ‘light footprint’ strategy of ‘offshore balancing’ (as employed in Libya), drones are likely to play an even more important role in future armed conflicts. Like other new armaments (e.g., long-range cruise missiles and high-altitude carpet bombing) the growing use of drones has triggered a considerable debate over the moral and legal grounds on which they are used. This debate is next reviewed.

Excessive Collateral Damage?

Critics argue that a large number of civilians, including women and children, are killed by drones. Some hold that the number of civilians killed amounts to an overwhelming majority of all those killed. Syed Munawar Hasan, who heads the influential Islamic political party Jamaat-e-Islami in Pakistan, has claimed that the drone strikes “are killing nearly 100 percent innocent people.” Former military officers David Kilcullen and Andrew Exum argued in the New York Times that in Pakistan drones kill 50 civilians for every militant. Other critics put forward somewhat lower numbers. A study conducted by the Columbia Law School estimates that 35% of the victims of drone strikes in 2011 were civilians. In contrast, American counterterrorism officials put the number as low as 2.5%. Deputy National Security Advisor for Homeland Security and Counterterrorism John Brennan claimed that “there hasn’t been a single collateral death because of the exceptional proficiency, precision of the capabilities we’ve been able to develop.”

Researchers who conduct comprehensive analyses of the data often provide statistics that fall between these two extremes, though their numbers also differ considerably from one another and fall across a wide range. While the Bureau of Investigative Journalism puts the number as high as 26.5%, others estimate that the percentage of civilian casualties falls between 4% and 20%, and The New America Foundation put the number at a low of 8%.

There is no way to settle these differences because often the drone strikes are in areas that are inaccessible to independent observers and the data includes reports by local officials and local media, neither of whom are reliable sources. The most cited statistics on the drone strikes in Pakistan—a data set compiled by the New America Foundation and Peter Bergen—relies completely on local media reports. It is a problem that plagues a majority of the media stories on any particular strike: estimates of civilian casualties are often based exclusively upon other media reports, producing what the Human Rights Clinic at Columbia Law School calls “an echo chamber” effect. In short, there is no fully reliable—or even highly reliable—way to determine the ratio of civilian to militant casualties caused by drone strikes. For reasons that follow we shall see that it stands to reason that these strikes cause less collateral damage than other instruments of warfare, though unfortunately are still likely to cause some.

Promiscuous Use?

Critics like The Atlantic’s Conor Friedersdorf argue that the drone campaign is an “unprecedented campaign of assassination with no apparent end,” while Glen Greenwald, writing in Salon.com, has described it as a set of “ongoing policies of rampant slaughter, secrecy and lawlessness.” Army chaplain D. Keith Shurtleff as, quoted by P.W. Singer in The New Atlantis, warns that “as war becomes safer and easier, as soldiers are removed from the horrors of war and see the enemy not as humans but as blips on a screen, there is a very real danger of losing the deterrent that such horrors provide.” Actually the use of drones is kept in check by an extensive set of rules, is subject to considerable a priori and a posteriori review, and is regulated by Congressional oversight.

Drones are used by the US military—especially the Joint Special Operations Command (JSOC)—and by the CIA. Much more is known about the rules that the military is using in its attempts to limit collateral damage in general (that of drones included) than those used by the CIA. Of the three existing drone programs, the one run by the US Air Force in Afghanistan (and to a much lesser extent in Iraq) has the most clearly defined scope and targeting procedures. Drone strikes in Pakistan, which are mostly under the charge of the CIA, and those in Yemen, some of which are operated by the CIA and others by the JSOC, operate with a greater degree of secrecy. As far as is known, these CIA and JSOC strikes follow targeting procedures similar to those used by the military.

The military rules include a long list of “no strike” targets including diplomatic offices, medical facilities, prisons, schools, and structures whose destruction will result in uncontainable environmental damages. They also include a host of other structures which are generally restricted from being targeted, including agricultural facilities, water and power utilities, recreational complexes, parks, restaurants, and retail stores. These regulations also cover a range of potential “dual-use” targets—targets that perform a combination of civilian and military functions—which are generally disallowed for military targeting absent higher-level authorization or specific intelligence demonstrating that only the military functions of the building in question are being utilized.

The more sensitive the target, (i.e., the more likely that innocent civilians might be involved), the higher in the ranks that approval must be sought, sometimes extending all the way to the president or the director of the CIA. President Obama is reported to personally review the files of all known terrorists before he approves their inclusion in a hit list.

Michael Scheuer, formerly of the CIA, scoffs at the charge that the review process is not rigorous. He reports that the procedure for nominating individuals for targeted killings is so exhaustive that the CIA often failed to kill those who ought to have been eliminated. Quoted in a 2011 article for Newsweek, Scheuer stated that each nomination, including a short document and “an appendix with supporting information,” was passed along to departmental lawyers, who were “very picky…Often this caused a missed opportunity. The whole idea that people got shot because someone has a hunch – I only wish that was true.”

President Obama’s former chief counterterrorism advisor, John Brennan, compiled a weekly “potential target list” based on Pentagon recommendations, which his staff then discusses with other agencies (such as the State Department) before making final recommendations to the president, according to the Associated Press. It is the president who would then, and presumably still does, makes the final decision regarding whether to target someone with a kinetic strike.

Further, the Department of Defense employs multiple teams of lawyers that are responsible for determining the legality of specific strikes. These lawyers have undergone “special training in the Geneva conventions,” and are instructed to guarantee that each targeted killing upholds international humanitarian law, official rules of engagement, and mission-specific instructions, reports The Guardian’s Pratap Chatterjee. The DOD employs some 12,000 lawyers and during the Iraq War surge, there was one lawyer for every 240 combatants. Some may wish there were even more, but no one should argue that orders to kill terrorists were not subject to close review. In an op-ed for Foreign Policy, Jack Goldsmith argues that the review process for designating an individual for a strike “goes far beyond any process given to any target in any war in American history.” In effect, these lawyers and other staff conduct hearings of a sort, in which evidence is presented and lawyers are instructed to guarantee that each targeted killing upholds all applicable laws and rules before the target is approved. I would add to this process a position for a lawyer explicitly charged with acting as a ‘guardian’ of the terrorists who, in effect, are tried in absentia. All lawyers of course have and ought to have the proper level of security clearance.

The Senate Foreign Relations committee reports that the military requires “two verifiable human sources” and “substantial additional evidence” that a potential target is an enemy. The first requirement for all drone strikes is to establish “positive identification” of the target in question, which constitutes “reasonable certainty that a functionally and geospatially defined object of attack is a legitimate military target in accordance with the law of war and applicable ROE (rules of engagement).”

As for oversight, Senator Dianne Feinstein, who according to The Los Angeles Times, had been previously critical of the drone program’s lack of transparency, released a statement on March 7, 2012 affirming that the “Senate Intelligence Committee is kept fully informed of counterterrorism operations and keeps close watch to make sure they are effective, responsible and in keeping with U.S. and international law.” Specifically, staffers from the intelligence committees watch footage of the previous month’s drone strikes and review the intelligence used to justify the killings. They also learn about the number of civilian casualties. According to Feinstein, the staffers “question every aspect of the program including legality, effectiveness, precision, foreign policy implications and the care taken to minimize noncombatant casualties.”

These restraints are maintained despite evidence showing that terrorists are both aware of these self-imposed limitations and use them to their advantage by stationing combatants, supplies, and weapons in mosques, schools, and private homes. In his book The Wrong War: Grit, Energy, and the Way Out of Afghanistan, Bing West quotes American servicemen reporting that the “Taliban fight from compounds where there are women and children…[so] we can’t push the Talibs [sic] out by mortar fire without being blamed for civilian casualties.” West also reports that Taliban troops often fired at American soldiers from private homes, mosques, buildings owned by the Red Crescent, and other locales where civilians were likely to be.

Rajiv Chandrasekaran, author of another book on the war in Afghanistan, notes how “In many cases, insurgents would seek refuge in compounds inhabited by women and children – so as to use them as human shields or, if the house was bombed to bits, as pawns in their propaganda campaign to convince the Afghan people that coalition forces were indiscriminate murderers of the innocent.” This problem was exacerbated by the fact that the “new rules prevented air strikes on residential buildings unless troops were in imminent danger of being overrun or the house had been observed for more than twenty-four hours to ensure no civilians were inside. If the bad guys ran into a home, they would have a free pass, unless the American’s were willing to wait them out.” Chandrasekaran further quotes Brigadier General Larry Nicholson, who, citing these rules, worried that “If we have to treat every house like a mosque, it’ll result in a whole lot more casualties.”

The discussion over drones tends to conflate two issues: should the US set out to kill the particular person in question—and, if so, should drones be used rather than Special Forces, bombers, cruise missiles, or some other tool? The drone issue is actually irrelevant to the first question.

At the same time it is clear–or at least should be–that if kill we must, drones are the preferable instrument. Compared to Special Forces and even bombers, preclude casualties on our side—not a trivial matter. Moreover, because they can linger over the target for hours if need be, often undetected, thereby enabling a much closer review and much more selective targeting process than do other instruments of warfare. This important fact is even recognized by the President of the International Committee of the Red Cross, Jakob Kellenberger. In his 2011 keynote address at the 34th Round Table on Current Issues of International Humanitarian Law, Kellenberger conceded that because drones have “enhanced real-time aerial surveillance possibilities,” they “thereby [allow] belligerents to carry out their attacks more precisely against military objectives and thus reduce civilian casualties and damage to civilian objects – in other words, to exercise greater precaution in attack.”

Other critics argue that drones strikes engender much resentment among the local population and serve as a major recruitment tool for the terrorists, possibly radicalizing more individuals than they neutralize. This argument has been made especially in reference to Pakistan, where there were anti-American demonstrations following drones strikes, as well as in Yemen. However, such arguments do not take into account the fact that anti-American sentiment in these areas ran high before drone strikes took place and remained so during periods in which strikes were significantly scaled back. Moreover, other developments—such as the release of an anti-Muslim movie trailer by an Egyptian Copt from California or the publication of incendiary cartoons by a Danish newspaper—led to much larger demonstrations. Hence stopping drone strikes—if they are otherwise justified, and especially given that they are a very effective and low-cost way to neutralize terrorist violence on the ground—merely for public relations purposes seems imprudent.

Moral Responsibility Rests on Whom?

The main onus for whatever collateral damage is caused by drone strikes is a result of the terrorists’ strategy of systematically violating a foundational rule of armed conflict, the rule of distinction. The 1977 Geneva Convention Article 48 Additional Protocol I states that: “[T]he Parties to the conflict shall at all times distinguish between the civilian population and combatants.” The purpose of this rule of armed conflict is to oblige fighting forces that clash with each other not to harm the civilian population—a moral obligation too often ignored during WWII. It is a rule that should apply not only to nation-states but to terrorists as well.

Rather than abide by this principle, however, terrorists exploit it by presenting themselves as civilians, showing their true colors only when they are ready to strike. After attacking US forces, terrorists then switch back to their civilian presentation when it suits their purposes, demanding that they be shielded by the law. This practice, exploiting what is known as the ‘revolving door’ of protection, is common with terrorist and insurgent violence: because the law of armed conflict only permits the targeting of individuals who exercise a ‘continuous combat function,’ a person who lays bombs at night but labors as a farmer during the day cannot be attacked in the daytime unless there is indisputable evidence that they are planning to conduct another attack in the near future. In addition, militants have used ambulances to transport suicide vests and bombers, schools and private homes as sniper bases, and mosques as storehouses of ammunition.

Above all, they mix in with the civilian population, one moment acting like shepherds and farmers, the next attacking, and soon after returning to the legal safety of their civilian pursuits. These very widespread and deliberate violations of the rule of distinction leave the counterterrorism forces with basically two choices: cause considerable collateral damage and face the wrath of the civilian population, or allow terrorist forces to gain major military advantages.

(Although I cannot demonstrate this here, this factor alone explains to a great extent why most counterterrorism campaigns are so long, costly in human and economic terms, and often fail.)

Moreover, drawing an overbearing military response from counterterrorism forces that harms innocent civilians is a central part of the terrorists’ strategy, as such incidents serve as more fodder for their propaganda and recruitment efforts.

In a 2009 brief written by Nils Melzer, The Red Cross states that “at the heart of IHL (International Humanitarian Law) lies the principle of distinction between the armed forces, who conduct the hostilities on behalf of the parties to an armed conflict, and civilians, who are presumed not to directly participate in hostilities and must be protected.”

However, to protect civilians in practice, it is not enough to expect soldiers to avoid them, but for all who take up arms to separate themselves from peaceful civilians. And if they do not—if they are like someone who carries a white flag claiming to surrender but opens fire when he closes—they ought to be understood as having forfeited some of their rights as fighters or as civilians. If the terrorists observed the rule of distinction, most collateral damage would vanish overnight, although some would still take place due to technical or intelligence failures. This conclusion is borne out by the data regarding civilian casualties in Pakistan. Gregory McNeal found that 70% of incidents of civilian casualties were attributable to failures in the ‘positive identification’ process of differentiating between civilians and militants—an overwhelming majority. Of the remaining civilian casualties, 22% were attributable to weapons malfunctions while only 8% were the result of ‘proportionality balancing’ decisions wherein the military logic of a strike was considered sufficient to justify potential harm to surrounding civilians. In short, the main onus for collateral damage rests with the terrorists. If they would follow the rules of armed conflict, some innocent civilians would still be killed due to intelligence or technical failures, but the number would be much smaller.

“Extrajudicial Killing” and Outside “Theaters of War”?

Critics employ two lines of legal criticism. One labels the killing of terrorists by drones (or other means) as “extrajudicial killings,” implying that only courts can legitimately mete out a death sentence. Michael Boyle, for example, contends in The Guardian that “the president has routinized and normalized extrajudicial killing from the Oval Office, taking advantage of America’s temporary advantage in drone technology to wage a series of shadow wars.” Similarly Conor Friedersdorf has argued in The Atlantic that the drone policy is passing death sentences “based on the unchecked authority of the president, who declares himself judge, jury, and executioner.” The assumption underlying these criticisms is that terrorists (those who are non-Americans and operating overseas) are nevertheless to be treated as ordinary criminals, i.e., captured and tried in American civilian courts. However, these critics do not address the question of how the US is to treat terrorists that either cannot be captured or can only be captured at a very great risk to our troops and, most likely, through the direct invasion of other countries (for instance, capturing those that make Northern Waziristan their base).

Nor is it clear on what grounds citizens of other nations, attacking our embassies, ships, and forces overseas, should be treated as American citizens, with all the rights thereof. Obviously if they were wearing a uniform or otherwise distinguish themselves from the civilian population (as the rules of armed conflict require) they would be killed and no one would see this as a legal issue.

This is what takes place in all instances of war. Why one would hold that we ought to grant numerous extra rights to people just because they fight us in an unfair way (so to speak), and, at the very least, illegally, seems difficult to comprehend. In addition, as Philip Bobbitt and Benjamin Wittes have pointed out, trying terrorists in civilian courts would not only force us to reveal sensitive sources and methods used to gather evidence in the first place, but such trials would also tend to lead to plea bargains because the evidence–collected in combat zones—often does not meet the stringent standards of civilian courts. We would also be forced to let terrorists loose once they completed their—historically short—sentences. (By the end of 2011, civilian courts had adjudicated 204 cases of terrorism: 63% of convictions were garnered through a plea bargain, 40% of the sentences were under 5 years in length, and 30% were between 5 and 10 years. These statistics and others have been diligently recorded by Karen J. Greenberg et al., in a report published by the Center on Law and Security at the NYU School of Law.)

And to reiterate, as the preceding discussion has shown, terrorist executions are carefully and extensively reviewed, albeit by different authorities and according to different procedures than those of our civilian courts. Another line of criticism takes the opposite viewpoint, treating terrorists not as if they were criminals but as if they were soldiers. They hence are to be treated in accordance with the rules of warfare, such as the Geneva Conventions.

These rules require that the US strike terrorists only in “declared theaters of war,” and treat those it captures as prisoners of war. In a 2010 debate at Fordham Law School, Mary Ellen O’Connell contended that “Targeting with the intent to kill an individual is only lawful under international humanitarian law or LOAC (the Law of Armed Conflict) within armed conflict hostilities, and then only members of regular armed forces, members of organized armed groups, or direct participants in those hostilities…[thus, because] the United States is only engaged in armed conflict in Afghanistan, targeted killing elsewhere is not commensurate with the law.” By this view, drone strikes in Pakistan and elsewhere are legally impermissible.

Regarding the first point—that we must only target terrorists within declared theaters of war—one notes that terrorists readily move from one country to another. Taliban and Al-Qaeda move often and rather freely between Afghanistan and Pakistan. For example, the Pakistani ISI (Inter-Services Intelligence) is working with the Haqqani network that has offshoots in Afghanistan and elsewhere according to the Council on Foreign Relations. Further, the Council reports that Al-Qaeda members and Jihadist fighters are moving in and out of Yemen, Somalia, Mali, and Libya. If we can confirm that a person either is a terrorist or has plans to—or has planned on—killing our troops, civilians, or allies, then the fact that they disregard and cross an unregulated hardly seems a reasonable criteria for protecting them.

Critics often ask “well if the whole world is now treated as a theater of war, would you kill terrorists even when they were located in a democratic nation?” The question itself is asked rhetorically, the absurdity of such a move assumed to be self-evident. However, one should not be too quick to concede this point, for if Washington had reliable intelligence that some terrorists based in Germany were preparing to strike us, we would ask the German government to deal with them. If the German government refused—perhaps on the grounds that German laws do not allow a response—we surely would neutralize these terrorists one way or another. This is what we are doing in Pakistan, a democratic country who we consider to be our ally, and this is what we did when we captured and surreptitiously removed suspected terrorist Osama Moustafa Hassan Nasr from Italy. If the current counterterrorism campaign takes the whole world as its theater, the distinction between democratic and authoritarian allies is quickly replaced by the distinction between cooperative and non-compliant counterterrorism partners.

Once captured, treating terrorist suspects as prisoners of war presumes that they can be held until the war is over. However, counterterrorism campaigns as a rule have no clear starting or ending dates; as it has been put elsewhere, in these campaigns there is no signing ceremony of peace treaties on aircraft carriers. Rather, they tend to peter out slowly, leaving no clear guide for how long we can hold captured terrorists if we to treat them by the rules of war.

As others have pointed out, we need distinct legal procedures and authorities for dealing with terrorists who are neither criminals nor soldiers. So far they have been left in a sort of legal limbo, a legal ambiguity that surrounds not merely drone strikes, but all counterterrorism endeavors. The proper legal status of these individuals will not be cleared up until we move beyond the simplistic dichotomy that terrorists must be viewed either as criminals or as soldiers and instead recognize that they are a distinct breed of enemy, with a distinct legal status: that of fighters who violate the rules of armed conflict and often deliberately target civilian populations in order to wreak terror. To call them soldiers is to unduly honor them; to view them as garden variety criminals is to undervalue both their misbegotten deeds and the danger they pose.

“Industrial Warfare?”

Mary Dudziak of the University of Southern California’s Gould School of Law opines that “[d]rones are a technological step that further isolates the American people from military action, undermining political checks on…endless war.” Similarly, Noel Sharkey, in The Guardian, worries that drones represent “the final step in the industrial revolution of war – a clean factory of slaughter with no physical blood on our hands and none of our own side killed.”

This kind of cocktail-party sociology does not stand up to even the most minimal critical examination. Would the people of the United States, Afghanistan, and Pakistan be better off if terrorists were killed in “hot” blood—say, knifed by Special Forces, blood and brain matter splashing in their faces? Would they be better off if our troops, in order to reach the terrorists, had to go through improvised explosive devices blowing up their legs and arms and gauntlets of machinegun fire and rocket-propelled grenades—traumatic experiences that turn some of them into psychopath-like killers?

Perhaps if all or most fighting were done in a cold-blooded, push-button way, it might well have the effects suggested above. However, as long as what we are talking about are a few hundred drone drivers, what they do or do not feel has no discernable effects on the nation or the leaders who declare war. Indeed, there is no evidence that the introduction of drones (and before that, high-level bombing and cruise missiles that were criticized on the same grounds) made going to war more likely or its extension more acceptable. Anybody who followed the US disengagement in Vietnam after the introduction of high-level bombing, or the US withdrawal from Afghanistan (and Iraq)—despite the considerable increases in drone strikes—knows better. In effect, the opposite argument may well hold: if the US could not draw on drones in Yemen and the other new theaters of the counterterrorism campaign, the US might well have been forced to rely more on conventional troops and prolong our involvement in the areas, a choice which would greatly increase our casualties and zones of warfare.

This line of criticism also neglects a potential upside of drones. As philosopher Bradley Strawser notes, this ability to deploy force abroad with minimal US casualties may allow the US to intervene in emerging humanitarian crises across the world with a greater degree of flexibility and effectiveness. Rather than reliving another ‘Black Hawk down’ scenario, the US can follow the model of the Libya intervention, where drones were used by NATO forces to eliminate enemy armor and air defenses, paving the way for the highly successful air campaign which followed, as reported by The Guardian’s Nick Hopkins.

As I see it, however, the main point of moral judgment comes earlier in the chain of action, well before we come to the question of which means are to be used to kill the enemy. The main turning point concerns the question of whether we should go to war at all. This is the crucial decision because once we engage in war, we must assume that there are going to be a large number of casualties on all sides—casualties that may well include innocent civilians. Often, discussions of targeted killings strike me as being written by people who yearn for a nice clean war, one in which only bad people will be killed using “surgical” strikes that inflict no collateral damage. Very few armed confrontations unfold in this way.

Hence, when we deliberate whether or not to fight, we should assume that once we step on this train, it is very likely to carry us to places we would rather not go. Drones are merely a new stepping stone on this woeful journey. Thus, we should carefully deliberate before we join or initiate any new armed fights, but draw on drones extensively, if fight we must. They are more easily scrutinized and reviewed, and are more morally justified, than any other means of warfare available.