Smell Test for chapter on ethics of drones in COIN

Here’s the abstract for a chapter I’m writing on the ethics of drones in counterinsurgency. What say the twittersphere? Am I on the right track? Have I ignored something massive? Speak now! (And thank you!)

What side will I come down on? Guess you’ll just have to stay tuned….

“The Wizard of Oz Goes to War: Unmanned Systems in Counterinsurgency”

The military has witnessed the convergence of two disparate trends over the past decade – a resurgence of population-centric warfare and the proliferation of unmanned systems. The combination of these two trends has created a counterinsurgency environment where the population has become an inextricable part of the battlespace at precisely the same time that the warfighter is becoming increasingly protected from the threats and dangers of war. This inversion of the norm of noncombatant immunity seemly discredits the ethical use of unmanned systems. This chapter will explore the question of whether unmanned systems have a defensible place in counterinsurgency operations. It argues that to the extent they enable service members to discriminate and target belligerents with greater accuracy; free them to focus on building relationships rather than provide security; and therefore support, rather than replace service members in the battlespace, they reinforce traditional efforts to protect civilians from the horrors of war. To the extent unmanned systems are used in order to reduce the presence of U.S. service members while increasing the lethality of combat, they subvert the intention that underlies noncombatant immunity and proportionality of means.

Some thoughts

ROUGH cut of a talk I’ll be giving soon. Anyone with the time and inclination: I’d love feedback. Am I hitting at anything interesting, or do I need to rethink?

Thanks!

How does the purported ‘hybridization’ of threat influence our understanding of when the use of force is justified? Since it’s not enough to have a legitimate reason to fight, I’ll also address how this idea of hybrid threat and warfare influences other aspects of the just war calculation of when war is legitimate.

This is an important question because while there might be tactical significance to hybrid war, it becomes supremely significant if facing a diversification of threats also changes what we would classify as those vital national interests justifying military defense. If it also changes our understanding of when the application of military force may credibly be seen as a ‘last resort’ or whether the harm of war may outweigh its benefit, then we could be witnessing a real change in when and why the United States fights wars.

I’ll tip my hand at the outset – I’m not a fan of the hybrid war concept. I’m not sure how the adjectives gives us any appreciable analytical insight. At the same time, it’s undeniable that it has shaped strategic policymakers’ thinking about US national security as reflected in the 2010 QDR, 2010 NSS, and 2012 DSG.

What I’ll do is take a few minutes and tease out how I see the hybrid warfare concept influencing US national security strategy. Then I’ll talk about how this may influence some of our traditional calculations of when the United States may legitimately fights wars. Finally, I’ll provide some tentative conclusions for what this might mean in terms of our leaning into or away from armed conflict over the next few years.

So, what is hybrid warfare and how do we see it reflected in current national level strategic guidance?

To quote from a GAO study conducted in 2010 by the GAO for the House Armed Services Subcommittee on Terrorism, Unconventional Threats and Capabilities, “DOD officials use the term ‘hybrid’ to describe the increasing complexity of conflict that will require a highly adaptable and resilient response from U.S. Forces, and not to articulate a new form of warfare.”

The NATO Military Working Group for Strategic Planning and Concepts has defined hybrid threat as “one posed by any current or potential adversary, including state, non-state, and terrorists, with the ability, whether demonstrate or likely, to simultaneously employ conventional and non conventional means adaptively, in pursuit of their objectives.”

This terminology has not been picked up in US doctrine, thought TRADOC’s most recent Operational Environment 2009-2025 discusses hybrid threats in the context of enemies “using an ever-changing variety of conventional (in terms of arms, equipment, and formations) and unconventional (specially equipped and organized) tactics to create multiple dilemmas.”

There are some clear implications for how we might fight hybrid wars, but there are also implications for when we may fight them.

The National Security Strategy 2010 lays out America’s foundational national interests:
• Security of the US, its citizens, and US allies and partners;
• A strong, innovative, and growing US economy in an open international economic system that promotes opportunity and prosperity;
• Respect for universal values at home and around the world; and
• An international order advanced by US leadership that promotes peace, security, and opportunity through stronger cooperation to meet global challenges.

It is in defining these core national interests that the National Security strategy identifies hybrid threats that may undermine US interests – not just AQ and violent extremists, but also nuclear terrorism, cyber vulnerabilities, and threats to the international financial system.

The document speaks directly to when force becomes a viable option, identifying that force “may be necessary to defend our country and allies or to preserve broader peace.” The document further argues that the United States “will exhaust other options before war whenever we can, and carefully weigh the costs and risks of action against the costs and risks of inaction.”

The 2010 Quadrennial Defense Review also looks at the question of hybrid threats, …

Finally, this past January, the Defense Strategic Guidance clearly noted ….

Arguably, what we’re seeing isn’t a new form of warfare, but it may be a reclassification of what policymakers identify as our ‘vital national interests’, defined as those interests “where serious harm to the nation would result unless strong measures, including the use of force, are employed to protect” them. Remembering that the use of force in defense of vital national interests is permitted, not necessarily required.

Within the Just War Context, this would be identified as ‘Just Cause’, which is essential to, but not exhaustive of the conditions required to justify the use of force. What I’m going to do is walk through the seven Jus Ad Bellum conditions and provide some thoughts on how these identified threats and our ability to respond to them blend with existing conceptions of when it’s legitimate for the United States to fight.

How Changing Vital National Interests Influences Justifications for War

There are seven basic tenets that shape our understanding of when it’s legitimate for states to fight wars. There are those who would argue that these conditions are less constraints on action than they are the components of a strategic communication campaign. I understand that argument, but I don’t find it ultimately persuasive. Successive American administrations demonstrate a real commitment to harnassing any potential military action to these criteria – just look at President Bush’s addresses to the nation in October 2001 and March 2003, and the 2010 NSS, which dedicated a full page the explaining the administration’s understanding of the just war framework and went further to assert that the United States’ moral leadership serves as an essential cornerstone to the nation’s security.

You can claim these attempts to harmonize US actions with just war principles is disingenuous. I find it more likely that these criteria resonate with the American people and its political leaders; it’s important to us as a nation to fight only just wars; and that we do in fact reject military operations that don’t meet these criteria.

The first criterion I’ll discuss is Just Cause: Threats to the conditions of life and fundamental well being of the community. While historically ‘just cause’ included righting an injustice, punishing wrongdoers, and defending God’s good order, in the modern period we have restrained just cause to territorial defense or – under UN leadership – the collective maintenance and restoration of international peace and security (Ch7, Art 51)

You guys know the Stuxnet attack that sabotaged Iran’s nuclear weapons program, potentially stalling Iran’s nuclear development by years? It was a worm, likely introduced through malicious code in Siemans’ equipment and software, clearly developed for the purpose of disabling Iran’s nuclear development program. If Iran could ID the state responsible, could it use lethal force self-defense?

Is there any distinction between this attack and when Israel simply bombed the Osirak reactor in Iraq in 1981? Not that Israel is responsible for Stuxnet; we don’t have any proof of that – the question is simply how we see the different between dropping bombs (when Osirak was closed for the weekend, so no collateral damage) and infecting a system with a worm. Are both acts of war? What if it had been proven that the IL water treatment plant that was hacked last November had been shut down by Russia, as was originally alleged? How would we think if another state used a similar worm to shut down US refineries? All power plants on the Eastern Seaboard? Would these be threats to the conditions of life and fundamental well-being of the United States?

The DSG made clear both that it is in the US national interest to protect freedom of access to the global commons – including cyber – and that protecting the homeland is one of the most important functions of the state.

The Cyber Strategy from last summer indicates, “The Department will work with interagency and international partners to encourage responsible behavior and oppose those who would seek to disrupt networks and systems, dissuade and deter malicious actors, and reserve the right to defend these vital national assets as necessary and appropriate.”

This comes down to the question of ‘equivalence’ – if a cyberattack produces a level of harm equivalent to that of a traditional military attack, it can be considered to be an act of war, potentially justifying military retaliation. To be clear, that’s not a given, but it’s a possibility that has – as yet – been off the table. The administration argues that 60% of small firms that are hacked go broke. Coupling that with the NSS’s commitment to strengthening America’s economic foundation as core pillar of US power, at what point does sheer economic harm constitute a just cause for war?

What else?

Legitimate Authority: The person authorizing the war must be a responsible representative of a sovereign political body – heads of state. Collectively, this can also be the United Nations under their Chapter 7 authority.

What about regional orgs?

Finally, under legitimate authority, we have the question of whether or which non-state actors may possess a legitimate foundation to resort to violence in pursuit of their ends. The question of insurgencies has been fairly well settled through the two additional protocols to the Geneva Conventions in 1977 – which is to say that international society accepts that insurgents / independence movements can legitimately wage war against an unjust de jure sovereign, provided they can demonstrate de facto sovereignty among the population they are fighting for. Providing military support to these groups is one of the core missions of Special Forces.

The Arab Spring raises the salience of our understanding of this aspect of legitimate authority. We’ll know more about Egypt’s consolidation following presidential elections next month, but the fact of tension b/t SCAF (Supreme Council of the Armed Forces) and the Muslim Brotherhood (Freedom and Justice Party) doesn’t demonstrate an inability or unwillingness to govern – only that multiple groups have the will to govern and disagree on how. Part of the tension arises from the process of conferring popular sovereignty to these groups.

The TNC (Transitional National Council) in Libya is a different question entirely. We provided no military support to Mubarak’s ouster in Egypt for clear political reasons. We did provide military support to the Libyan rebels to overthrow the Gaddafi regime. It is supremely questionable whether the TNC has the authority and means to consolidate power and provide security, political stability, and the means for economic prosperity for Libya. It says a lot about where we view the bar for legitimate authority that we provided military support for their efforts.

Let me push this for a minute b/c the clear rejoinder would be to argue that we weren’t recognizing the rebels’ legitimate authority; we were assisting France and hoping to topple Gaddafi. I’m not going to argue against either goal. I’m a fan of both. But we know the significance of precedence in the international system, and it’s short-sighted to argue that our actions don’t read back into who we characterize as having the ability to wage war against a recognized sovereign. To the extent it meets our purposes, it’s unproblematic. To the extent a similar uprising undermines US interests in a different context, it becomes highly concerning.

[Syria: Bashar Assad and Free Syrian Army]

Right Intention: When we’re talking about going to war, our intention can only be to bring about or restore the conditions for human life and well being. It cannot be the destruction of our enemies, economic benefit, or territorial aggrandizement. And you’ll note I’m talking about intention – the state of affairs you’re trying to bring about – not motive – the reason you’re doing what you’re doing. For international ethics intentions are key; motives are irrelevant.

I don’t identify any real change here, but right intention can explain some of the pressure felt within the administration to ‘do something’ in areas like Syria, where there is clearly no group with the ability to govern effectively in the absence of the regime. Assad possesses the capacity to provide security, political stability, and the conditions of economic wellbeing for his people; he simply lacks the will. The Free Syrian Army possesses the will, but lacks the capacity. The impulse of some in the country today is to use US military power to help restore the conditions of life and well-being for the people of Syria. It was the same impulse we see typically in humanitarian operations. There is nothing wrong with that impulse and it sits squarely within our well-established Wilsonian tradition. At the same time, within the context of the Just War framework, it cannot trump the other requirements of legitimate authority, proportionality of ends, etc.

The last thing I’ll note here with right intention before moving on, is that this requirement may push back some on the DSG’s argument that “US forces will no longer be sized to conduct large-scale, prolonged stability operations.” My students are highly skeptical of this assertion, and the right intention criterion would be as well. The main argument of Fred Ikle’s Every War Must End is the critique that states enter wars without thinking about how they’re going to get out of them. There’s an enter body of just war thinking related to jus post bellum or the just cessation of conflict. All I’ll say here is that if the only right intention for fighting a war is to re-create the conditions for life and well-being of the community, then you have to stay until those conditions are created. Large-scale stability operations may be a necessary component of that process.

Reasonable Change of Success: Doesn’t override one’s own right to self-defense. While this may seem traditionally like a fairly straightforward calculation for a superpower, in the context of hybrid threats, it’s actually a very high bar. It requires an exceptionally high intelligence requirement to understand the asymmetric capabilities and likely actions of an enemy; even then, given the highly complex nature of hybrid war, the risk calculations will be murky at best.

Second, we have unparalleled ability to impose our military will on states; as the weekend attacks in Kabul demonstrate, we have a far degraded ability to infuse our political will into our allies or to impose military will on non-state actors. To be clear – the attacks were largely fruitless and the ANSF performed well – I don’t see this as being the Tet moment that some have argued. But it does highlight the difficulty of fighting unconventional wars, especially when those wars must be fought predominantly by host national representatives. The reasonable chance of success criterion would argue against the US becoming involved in those military engagements where we cannot predict with some confidence that we will be able to secure our national interests in this context. (Again, outside a clear self-defense action).

Finally, today this calculation must be made within the reality of the current budget environment and the effects that will have to the force in the years to come. I’m speculating, but I would suggest that the combination of the analytical complexity and the fiscal austerity combine to help explain my previous point about a reduction in large-scale stability operations. Arguing a reasonable chance for success within those parameters can be incredibly challenging.

Proportionality of Ends: The good to come of the war must outweigh the harm of the war. We know wars are horribly costly, not just in terms of dollars, but significantly in terms of lives and livelihoods. If the overall cost of victory is greater than the good to come of victory, you ought not fight. You should resort to diplomatic or economic means to preserve the threatened interest, even if the interest is somewhat compromised.

We’re witnessing sharp debate within the administration on this point right now with respect to Iran. Iran’s clear efforts to build nuclear capability and stated intent to harm the United States constitute a reasonable threat to our vital national interests. A war with Iran today would be costly. I don’t have access to the information I would need to calculate whether the overall costs of war today outweighs the benefit to our national security that would come from preventing Iran’s nuclearization. What I do know is that the calculation of the harm of war with Iran changes by orders of magnitude were Iran to acquire nuclear capability. It becomes much easier to argue against war with a nuclear Iran precisely because the costs of that war will be so much higher.

This calculation of proportionality of ends also feeds into the next component of the just resort to force:

Last Resort: Doesn’t mean you have to literally try everything else first. (Afghanistan). Israel used this view of last resort to justify its preemptive attack against Egypt, Jordan, and Syria in the Six Day War. The threat was imminent – they knew Egyptian troops had mobilized and were days from attack; and they knew that they needed the advantage of surprise to have any hope of winning. The question in our context is how one defines ‘imminent’ – it was hotly contested following the 2002 NSS, when the Bush administration articulated what had been our longstanding – if unspoken – belief in the right to preemption. I’m not going to defend a particular position on this, but it’s easy to see how one’s calculation of proportionality of ends can read onto policy makers’ understanding of last resort.

Preemption vs Prevention (can’t trade a certain evil for a possible good)

Balance of Justice: The final condition for the just resort to war is the balance of justice. The argument here is that most countries go to war believing they have justice on their side. The just statesman, however, takes a larger view and evaluates the injustices his country has suffered against the purported injustices of the adversary. If his adversary has suffered a greater injustice, the statesman should pursue other means to secure his interests.

This can actually be interesting in the context of hybrid warfare. Typically balance of justice is ignored for (1) being impossible to really determine, and (2) being insignificant relative to national interests. I would argue there are reasons to take it seriously in the current environment:

First, it is consistent with this president’s attention to global moral leadership, both in terms of leading by example, and in terms of promoting a just and sustainable international order.

Second, and for the policymaker, perhaps most importantly – this criteria introduces real flexibility into America’s actions abroad. If we recognize real collective interests that require coordinated responses — protection of the global commons; environmental protection and shepherding of natural resources; global health; counter-proliferation; etc. – then it makes good sense to calculate the balance of justice (or balance of grievance) when determining how to engage potentially hostile actors. Particularly in an austere fiscal environment, it can be much cheaper to address the core grievances of a potential adversary than it could be to fight them. Paying attention to the balance of justice places our efforts to secure our national interests into a larger context that includes other international actors and may give us better leverage than provided by an exclusively US-centric view.

Conclusion

So, what does all this mean? There are some trends that make the use of force more likely under these criteria:
• The pluralization of vital national interests to include cybersecurity and arguably access to the global commons legitimates the use of force in response to a larger number of threats;
• The pluralization of legitimate authority to perhaps include regional organizations and non-state actors who possess the will but not the capacity to govern opens the door for the United States to be called more often to assist in efforts at national liberation.
• Potentially the connection between proportionality of ends and last resort may create conditions that argue in favor of preventive wars to minimize the harm of a certain evil.
At the same time, there are trends that constrict the use of force:
• It becomes increasingly difficult to calculate whether the United States can credibly claim to have a reasonable chance of success in certain asymmetric conflicts. The probability of success in a partnering relationship is also generally lower than when the United States fights alone or in a coalition arrangement.
• In an austere fiscal environment, resource restraints – both current and future – must be read into our calculations of reasonable chance for success.
• The financial costs of war today must also be read into our evaluation of proportionality of ends. While I argued this might incline policymakers toward preemption; it could also incline them away from force altogether.
• This could be particularly true when combined with the balance of justice, which broadens the policymakers’ aperture beyond exclusively US national interests and challenges them to consider the interests and calculations of their potential adversaries. Doing this may uncover alternate approaches that may reasonably secure our interests at acceptably lower costs.

Policymakers will apply their specific judgments how they will; the usefulness of the just war framework as applied to contemporary security strategy is that it gives good depth and dimensionality to how we think about when it would be appropriate to use force. It takes us out of a purely reactive cycle, and is in keeping with a longstanding American tradition of demonstrating restraint in the resort to war.