America's Imperfect War: the Ethics, Law, and Strategy of Drone Warfare

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America's Imperfect War: the Ethics, Law, and Strategy of Drone Warfare University of Tennessee, Knoxville TRACE: Tennessee Research and Creative Exchange Doctoral Dissertations Graduate School 8-2017 America’s Imperfect War: The Ethics, Law, and Strategy of Drone Warfare Treston Lashawn Wheat University of Tennessee, Knoxville, [email protected] Follow this and additional works at: https://trace.tennessee.edu/utk_graddiss Part of the American Politics Commons, International Relations Commons, and the Political Theory Commons Recommended Citation Wheat, Treston Lashawn, "America’s Imperfect War: The Ethics, Law, and Strategy of Drone Warfare. " PhD diss., University of Tennessee, 2017. https://trace.tennessee.edu/utk_graddiss/4668 This Dissertation is brought to you for free and open access by the Graduate School at TRACE: Tennessee Research and Creative Exchange. It has been accepted for inclusion in Doctoral Dissertations by an authorized administrator of TRACE: Tennessee Research and Creative Exchange. For more information, please contact [email protected]. To the Graduate Council: I am submitting herewith a dissertation written by Treston Lashawn Wheat entitled "America’s Imperfect War: The Ethics, Law, and Strategy of Drone Warfare." I have examined the final electronic copy of this dissertation for form and content and recommend that it be accepted in partial fulfillment of the equirr ements for the degree of Doctor of Philosophy, with a major in Political Science. Michael Fitzgerald, Major Professor We have read this dissertation and recommend its acceptance: John Scheb, David Houston, David Reidy Accepted for the Council: Dixie L. Thompson Vice Provost and Dean of the Graduate School (Original signatures are on file with official studentecor r ds.) America’s Imperfect War: The Ethics, Law, and Strategy of Drone Warfare A Dissertation Presented for the Doctor of Philosophy Degree The University of Tennessee, Knoxville Treston Lashawn Wheat August 2017 Copyright © 2017 by Treston L. Wheat All rights reserved. ii ACKNOWLEDGEMENTS Thank you to my Committee members Dr. John Scheb, Dr. David Houston, Dr. David Reidy, and Dr. Michael Fitzgerald for participating in this intellectual journey. Thank you to Dr. Fitzgerald for serving as my Committee Chair. I would also like to acknowledge the support of my family, and I dedicate this study to my best friend, Jon, who taught me about the personal costs of war. iii ABSTRACT This study explores the ethics, law, and strategy of targeted killings by drones in the War on Terror. It starts with an exploration of just war theory, its historical development and criteria, to create a foundational framework by which to analyze the ethics of drones as a tactic. Then it defines terrorism and insurgency, establishing how sub-state actors operate, and the strategies states will use to neutralize them as threats. This shows that the War on Terror is actually an armed conflict because terrorism and insurgency are forms of warfare under the law and in warfare theory. After looking at terrorism a broad concept, a history of the War on Terror, its operational context, and the specific nature of al-Qaeda and its affiliates are explained to give context to the ethical debate. Because of the actions of al-Qaeda and its affiliates, the U.S. is at war with these organizations and is allowed to use kinetic action against them. The study then approaches the history, law, geopolitics, and ethics of drone warfare to show targeted killings and strategic strikes are legitimate forms of kinetic action and are legal, ethical, and useful tactics to neutralize enemy combatants and terrorist organizations. Finally, using the cases of Pakistan, Afghanistan, Iraq, Yemen, and Somalia this study demonstrates that targeted killings by drones are proportional, discriminatory, and militarily necessary. iv TABLE OF CONTENTS Chapter One Introduction p. 1 Chapter Two Just War Theory: Historical Development and Modern Interpretations p. 10 Chapter Three Understanding Jus ad Bellum and Jus in Bello with Historical Examples p. 36 Chapter Four Sub-State Violence: Terrorism, Insurgency, and Irregular Warfare p. 63 Chapter Five Operational Context: Al-Qaeda, Taliban, and the War on Terror p. 97 Chapter Six Operational Context: Iraq, ISIS, and Al-Qaeda’s Affiliates p. 131 Chapter Seven Drones: History and Law p. 158 Chapter Eight Ethics of Drones and Targeted Killings p. 186 Chapter Nine Strategy and Geopolitics of Drones p. 210 Chapter Ten Drones: Proportionality, Discrimination, and Military Necessity p. 237 Chapter Eleven Conclusion p. 257 Bibliography p. 267 Vita p. 289 v CHAPTER ONE INTRODUCTION After the ending of the Thirty Years War and the Peace of Westphalia in 1648, the international order predicated itself on the centrality of the nation-state for sovereignty and legitimacy. Institutions, law makers, and sovereigns based their normative principles both ethically and legally on the fact states are the primary political actors in international relations. This raises problems when states have tensions with non-state actors and have to engage with them. Although there are several theoretical paradigms on which policy makers have justified their actions, the general consensus among them concerning ethics is adherence to the traditions of just war. Since the terrorist attacks on September 11, 2001 in New York and Washington, DC the U.S. has systematically targeted violent sub-state actors, which raises questions concerning ethics and warfare. The U.S. experience with the problems of warfare dates back to the Founding. The Founders did not appreciate calculated realism and preferred to justify conflict and its conduct on idealist grounds. They found the country on “ideals,” not realism and balance of power. Then when the Framers wrote the Constitution, they made it difficult for the President to go to war. Congress had significant power over the military, particularly the ability to raise armies and maintain a navy, but for some time in the 19th century America’s military power would be meager at best. Presidents like Thomas Jefferson tried to expand naval power to deal with specific threats, but usually the Congress focused on defensive positions like forts. America had a sense of its own national exceptionalism and almost an overdose of idealism, seeing war as typical of the Old World. The country was protected by the Great Power conflicts by the European balance of power and a two ocean buffer. But over the two and half centuries of America’s existence, it would learn about and adapt to “small wars.” Small wars, also called limited or asymmetric wars, 1 are different than total wars. They are wars fought less than whole heartedly, wars where America intervenes in the internal affairs of others, wars without significant popular support, and “wars among the people.” That is the type of war that President Bush would find himself engaging in after 9/11 and developing modern tools for the conflict. America invaded Afghanistan to stop al-Qaeda, but the War on Terror would not remain within the borders of that country. Al-Qaeda spread through its affiliates into Pakistan, Iraq, Yemen, Somalia, and elsewhere. One weapon the United States has used widely is drones. Drones have become a regular tool used for warfare and paramilitary operations, and they are here to stay. As such, meaningful debate must take place on the ethics of their use if America wants to stay true to its democratic and Western values along with an adherence to the rule of law, domestic and international. If drones are ethical, legal, and useful for targeting and neutralizing terrorists, then they become one of the best tools in the protracted war against al- Qaeda and its affiliates. The U.S. government has argued that their drone policies are morally justified within the just war tradition (Brennan, 2012; Holder, 2012; Obama, 2013). However, there is significant debate within academia as to whether or not this is true. Many academics have approached the topic by merely raising the issues of drones and explaining how just war ethics might apply (Bataoel, 2011; Enemark, 2013; Cook, 2015; Welsh, 2015). Moral questions raised include the applicability of new technologies and their ability to discriminate between combatants and non-combatants. On the other hand, Strawser (2010) contends there is a moral obligation to use drones because they help protect the “just warfighter” when the use of force is justified. Yet several academics take serious issue with drones, believing their use in targeted killings as unethical. Adams and Barrie (2013) argues that drones are problematic because of 2 their bureaucratization, meaning decisions become mechanical and a threat to the democratic process. Boyle (2015) delineates how the Obama administration’s discrete choices and enunciation of a right to presumptive self-defense challenges the normal legal and ethical paradigms that would apply to drones. Brunstetter and Braun (2011) argue that the lack of transparency makes drones difficult to judge while the distance from the conflict may make killing easier. Enemark (2011) also raises the need for greater transparency while Rae (2014) worries that permanent conflict could arise because of the ease of killing the enemy. Braun and Brustetter (2013) also contend that the CIA’s drone program is problematic because almost a quarter of attacks have collateral damage, which means a new moral language of jus ad vim (just use of force short of war) might be necessary. Kreps and Kaag (2012) follow this argument by stating that the distinction between combatants and non-combatants is incredibly challenging. On the other hand, Carvin (2015) thinks that proportionality is misapplied to the drone, especially because scholars cannot get an accurate count of civilian casualties. Scholars offer competing ethical perspectives and a variety of problems associated with drones, but just war ethics provides a way to systematically evaluate these issues and problems. This study assesses drone warfare and targeted killings as a tactic within asymmetric warfare and counter-terrorism according to the criteria of jus in bello.
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