With the leak of the Obama Administration’s Justice Department memo laying out alleged legal and Constitutional justification for targeted drone killings abroad, the ethical debate over this practice finally began in earnest. Back in October of 2011, I visited this topic in a post titled, “The Ethically Messy, Legally Muddled, Drone Killing of Anwar al-Awlaki,” who was an American citizen and also an al-Qaida leader and terrorist, and wrote…
“I am far less confident of a conclusion that the killing was legal than I am that the killing was ethical in a situation where traditional rules and considerations don’t fit the situation well, meaning that decision-makers must go outside the rules to find the right, meaning ethical, course of action. And I’m even not 100% confident of that.”
This still accurately encompasses my view, although my confidence in the position has declined materially, in part because of the memo. However, my position in 2011 was based on the assumption, using the Bush Administration’s position, that the United States was engaged in a de facto war with al-Qaida, and as a tool of war, killer drones are within ethical bounds by my analysis. The leaked memo, however, begins with the assumption that the drone strikes are not part of ongoing declared warfare, but rather a new variety of cross-border lethal intervention that has no legitimate statutory basis. I think that under those assumptions, targeting drone killings are illegal, unethical, and to the extent that they give the President of the United States the power to kill someone in any nation based on his assessment that person needs killing, ominous.
I’ll leave the legal analysis of the memo to others. For now, other than pointing readers to my earlier analysis of drone killings in the context of warfare, I just have some observations:
- The obvious comparison being made is between this memo and the so-called “torture memos” prepared by government attorneys to support the use of torture as an interrogation tool. There are some legitimate points of comparison, but President-sanctioned assassination by drone and U.S. agency administered torture are not ethically equivalent, in warfare or out of it. Torture, the intentional infliction of pain and fear of death, is cruel, and violates ethical and moral absolutes. The best analogy to the comparison would be the difference between legal and justified capital punishment and the “cruel and unusual punishment” prohibited by the Bill of Rights. An individual who could be legally and ethically killed by a drone in Yemen could still not be ethically tortured. Torture is worse, and except for exceptions of apocalyptic proportions, always unethical.
- Because of that, it is not necessarily hypocritical for critics of the Bush torture policies to be less critical of the Obama drone killings. I keep hearing conservative radio hosts and publications saying and writing things like, “It’s unethical to torture terrorists, but not to kill them?” Yes, that’s right, and anyone who can’t comprehend why needs an ethics tune-up. Similarly, the fact that Sen. Obama and pre-Attorney General appointment Eric Holder condemned Bush torture policies does not make their drone approval a reversal of principle. It is also true, however, that the critics of the human rights and due process record of the Bush Administration did not typically make such subtle distinctions, and the silence of many of them (not all) in the face of what they would have been calling “war crimes” and “crimes against humanity” if the perpetrators were President Bush and Vice-President Cheney, is damning.
- Both the torture memos and the Obama drone killings memo were within legal ethics boundaries as advocacy memos. A client asks a lawyer to make the best possible legal argument for a course of action that client wants to pursue, and if the resulting memorandum does not misrepresent authority or make intentionally deceptive and misleading arguments, it can be an ethical use of legal skills in support of a client’s legitimate objectives. It would be unethical for a lawyer who believed a course of action was unquestionably illegal to write such a memo, however, if he or she knew it would be used to advance an illegal objective. It would also be unethical for the client, in this case, the Obama Administration, to represent the memo as something it is not, such as an objective analysis by a lawyer who felt free to declare that the drone policy under discussion was illegal and wrong. I would be shocked if memoranda that fit that description haven’t been produced as well; so far, nobody has leaked them.
- In my opinion, both the torture memos and the leaked drone memo are weak. (You can read an interesting critique of the drone memo by the author of one of the drone memos here.)
- Whoever leaked the drone memo was violating the legal ethics rules as well as the law. If identified, the individual should be disbarred.
- I am far from a constitutional scholar, but in my opinion, once the drone killings are taken outside the context of a de facto war against al-Qaida, with the targets as enemy combatants, they become unethical, unconstitutional and a dangerous extension of Presidential power. The ACLU is mounting a legal attack against the tactic, and it is the right advocate to take on the job. The Administration can’t have it both ways: declaring that there is no “war on terror,” yet killing people, and even American citizens, in sovereign nations on the infinitely flexible theory that they pose a threat to the nation.
I would explain my uneasiness this way. The President using drones to kill citizens of other nations without due process of law is more illegal and unethical than using drones to kill citizens of this country without due process, once they are identified as “imminent threats.” If that doesn’t bother you, I can’t imagine why.