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Kevin Jon Heller’s Interesting and Thoughtful Response

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Monday, December 31, 2012 at 9:28 PM

Kevin Jon Heller has responded to my earlier comments on his earlier post—which itself responded to my exchange with Glenn Greenwald. I’m not going to respond to Kevin’s latest piece, in large measure because I think it almost entirely sums up the remaining—and relatively narrow difference—between us on this point.

Money quote:

I think it is possible—indeed important—to insist that the drone program is profoundly immoral even if no individual drone strike ever violates the laws of war. . . . [V]ery few people are such thoroughgoing positivists that they believe legality and morality are coterminous, even if they disagree dramatically with each other concerning the particulars of the difference. Two obvious examples: “pro-lifers” don’t consider abortion to be moral even though it is legal, while the pro-euthanasia crowd doesn’t consider assisted suicide to be immoral simply because it is almost always illegal.  Both groups simply reject the morality of the laws in question.

In one sense, that is my perspective on the collateral deaths caused by drone strikes. Although I do not believe that all drone strikes comply with the laws of war, for the reasons I discuss in my forthcoming article, I am certainly more legally sympathetic to the drone program than most of my fellow lefties/progressives.  In particular, I am extremely skeptical of the oft-heard claim that drone strikes violate IHL’s principle of proportionality.  As I have explained elsewhere, the principle of proportionality—to say nothing of the war crime that is based on it—is so amorphous and commander-friendly that it is essentially useless. Yet I still think that many, if not most, of the legally-proportionate collateral deaths caused by drone strikes are profoundly immoral.

My position would not change, though, even if I was more comfortable with the legal definition of proportionality.  Accepting the morality of a particular law does not commit one to accepting the morality of any and all actions that comply with that law.  Someone who is pro-choice can still morally condemn the wealthy family who uses abortion as a form of birth control.  Similarly, someone who supports euthanasia can still morally condemn a person who talks an ill elderly relative into it because he wants his inheritance sooner rather than later.

That, essentially, is how I feel about drone strikes.  I do think that the principle of proportionality is too accepting of military force.  But my basic objection to the collateral deaths caused by drone strikes is that those deaths are nearly always unnecessary, because the drone program itself lacks any persuasive strategic justification.  In my view, the military benefits of drone strikes pale in comparison to their long-term costs — ranging from radicalizing the affected populations to encouraging the US to rely on military force instead of other methods for dealing with terrorism.  I thus believe that the drone program should be dramatically narrowed, if not eliminated completely.

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