Scott Shane argues in Sunday’s Times that the U.S. is setting a dangerous precedent by exploiting its temporary asymmetrical technological advantages in drone technologies to pursue short-term security objectives such as killing Anwar al-Awlaki:
Eventually, the United States will face a military adversary or terrorist group armed with drones, military analysts say. But what the short-run hazard experts foresee is not an attack on the United States, which faces no enemies with significant combat drone capabilities, but the political and legal challenges posed when another country follows the American example. The Bush administration, and even more aggressively the Obama administration, embraced an extraordinary principle: that the United States can send this robotic weapon over borders to kill perceived enemies, even American citizens, who are viewed as a threat.
Kenneth Anderson provides a thoughtful and thorough critique, concluding that:
It is simply implausible to think that countries would not have been developing UAVs for military uses, just as they are being developed and deployed for civilian uses. The US might have been first, but this is where civilian aviation, and a lot of other robotic technologies, have been going even if only now becoming visible to the broader public.
Anderson may be right, although I suspect he underplays the extent to which other countries, especially China, are looking at and learning from the U.S. Technological advances always seem inevitable after the fact. More important, though, is the point where Anderson and Shane appear to agree and where U.S. policy is falling short. To put it in Anderson’s words:
There are indeed important ways in which state practice needs to evolve to deal with the legal and moral implications of new technologies and their strategic implications. One is the development of a sort of “state practice” of “intelligence-driven, discrete uses of force” — a clumsy term for what amounts to evolving “covert,” but often not covert, action. That’s where the US needs to lead the way — in the development of state practice to assert that even these emerging forms of using force are, in the first place, subject to the basic customary obligations for any use of force: necessity, distinction, proportionality.
The problem with current U.S. policy is that it is implausible to believe that you can set a meaningful precedent through secretive and unilateral legal memos, like the much discussed Barron-Lederman memo. Taking the lead certainly involves setting examples in practice but it would also help to bring these legal issues to multilateral fora. This is a case where the U.S. could increase the credibility of its promise not to overstep bounds by tying its hands. International treaties negotiated with (a sub-set of) nation states provide an imperfect yet important way to do this.
My worry here is not just use by the U.S. or by states or terrorists against the U.S., but also usage in future inter-state wars not involving the U.S. While the laws of war are not always complied with, war-time atrocities can be reduced (gated) if both states involved in a war have ratified relevant treaties. Public multilateral treaties help common understandings of what is and is not allowed and set triggers for reciprocity. From a national interest perspective, it would be better for the U.S. to take the lead while it has the advantage. If the technological spread is inevitable, as everyone seems to think, then there is no good reason to wait.