Legitimacy as a Target
This is an adapted and revised excerpt from:
Targeted killing by remote-control with unmanned drones may be the future face of war. Drones reduce the cost of using force, and tempt states to resort to force more readily. Legitimacy and Drones brings together a multinational group of scholars to ask all the right questions—when are drones lawful, ethical, and effective, and what limits must be imposed on their use. An invaluable collection on one of the most pressing issues of our time.
— David Cole, Georgetown University Law Center, USA
This timely, rich and occasionally provocative volume will help set the parameters of debate and legal reflection on the vital questions posed by the use of drones, not least the fundamental relationship between legality, morality and legitimacy.
— Philippe Sands QC, University College London, UK
“[W]hether it is drone strikes or training partners … when we cannot explain our efforts clearly and publicly, we face terrorist propaganda and international suspicion, we erode legitimacy with our partners and our people and we reduce accountability in our own government.”
-- President Barack Obama
May 2014 
Before aviators risked climbing aboard vehicles to direct their airborne flight from inside a cockpit, unmanned flying objects were our first encounter with the skies. From Chinese kites to the first hot air balloon, the human experience with flight started with the pilot’s feet planted firmly on the ground. Thus it is appropriate to begin this work with recognition that unmanned aerial systems (UAS) are not new, but in fact the precursor to the aircraft that we know today: those that have come to dominate our understanding flight itself. Hence, a part of the paradigm shift we are experiencing at the beginning of the twenty-first century can be considered as a reacquaintance with our past, built upon all that we have learned about effective flight control from the onboard experience, rather than as an unprecedented march into the future.
This volume will address one specific military application of the new technology: unmanned combat aerial vehicles (UCAVs, commonly referred to as drones) used for counterterrorism operations carried out across international borders. The fact that these aerial vehicles are armed with precision guided missiles and infrared cameras producing full motion video is a significant change; this enables the crew to target an individual from thousands of miles away. As a result there has been a reduction of practical constraints on exercising lethal force across borders and across the globe in a time when violent individuals and groups are seen by many as the most substantial threat posed to a nation. While drones have been rightly identified as just another weapons platform, they have also directly altered the calculations for exercising force within the territory of other states.
Throughout this work we will see that it is this significantly increased facility for exercising deadly force in far-flung regions across the globe that is putting great stress on many of our established norms. Our existing legal and moral frameworks, not to mention methods for judging efficacy, are often insufficient, or not quite applicable, to the novel use of killer drones. Consequently, our book aims to explore this tension and consider a policy proposal meant to ease this strain.
Throughout this work we will see that it is this significantly increased facility for exercising deadly force in far-flung regions across the globe that is putting great stress on many of our established norms.
It is also worth noting that as this technology advances there are countless new applications of the unarmed version: for example, the United Nations builds up its unmanned aircraft capacities for peacekeeping surveillance; UAS are deployed to fight illegal fishing off the coast of Belize and California; flying surveillance vehicles now patrol nearly half of the US-Mexico border; there are inexpensive autonomous 3D robotic quadcopters that follow and film their owners engaging in action sports; and private users fly unmanned aircraft into the middle of firework displays, illegally and dangerously, to capture breathtaking footage. Whether one looks at armed or unarmed UAS, one overarching difficulty can be found in the rapid growth. As is always the case with new technologies, their uses are developing faster than rules, regulation, and enforcement can be instituted. Both politics and general understanding of the shifting considerations impede adequate management of the technology.
Nevertheless, parameters for better understanding do indeed exist and in the epigraph to this Introduction we find an idea that has guided the studies in this book. The President of the United States, the very same official who drastically expanded the government’s use of UCAVs for cross-border counterterrorism, exhibits in a 2014 speech that he recognizes that such operations must be broadly believed to be legitimate, and that this legitimacy is subject to erosion. Considering Max Weber’s widely accepted definition of the modern state—“a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory”—one can quickly grasp that lethal force repeatedly exercised in the territory of another state raises many questions of legitimacy, both at home and abroad.
As is always the case with new technologies, their uses are developing faster than rules, regulation, and enforcement can be instituted.
One Sri Lankan senior official, Lakshman Kadirgamar, worked tirelessly to put this concept of legitimacy at the center of his nation’s struggle against an armed group employing terrorist tactics. As its foreign minister from 1994 to 2001 and from 2004 to 2005, Kadirgamar helped lead the effort against the separatist Tamil Tigers—the movement that ultimately took his life. Through an effective countering of their propaganda campaigns, he skillfully achieved their diplomatic isolation, which laid the groundwork for their eventual, yet controversial, military defeat in 2009. Although this is certainly not the place to delve into an analysis of that conflict, nor Kadirgamar’s philosophy for dealing with it, a recent publication doing just that has arrived at a conclusion that is directly pertinent to our study:
[i]f there is one central message from Lakshman’s speeches and actions, it is that the problem of terrorism has to be tackled within a legal framework; and the struggle between terrorists and their adversaries is to a significant extent a struggle for legitimacy.
While more on the relevance of the legal framework of international law will follow, here it is sufficient to underscore the fact that Kadirgamar recognized legitimacy as a principal element in such a conflict.
For additional support of that recognition one can turn to the 2006 Army Field Manual 3-24, Counterinsurgency, which eventually came to be employed as the guiding military doctrine for the US engagement in Iraq and Afghanistan. Although neither of these conflicts is by any means a completed operation, this document drafted under the supervision of General David Petraeus (a work that helped catapult him to the highest levels of military and civilian authority), puts the concept of legitimacy at the center of the armed conflict. The Army Field Manual does not address the validity of the invasions themselves (a question for the civilian leadership), but rather provides a strategic analysis of insurgency and counterinsurgency in which legitimacy is illuminated in the very definition of the struggle:
[A]n insurgency is an organized, protracted politico-military struggle designed to weaken the control and legitimacy of an established government, occupying power, or other political authority while increasing insurgent control.
In fact, even a cursory reading of the Field Manual reveals a consistent return to the legitimacy theme: “[p]olitical power is the central issue in insurgencies and counterinsurgencies; each side aims to get the people to accept its governance or authority as legitimate”; “the long-term objective for all sides remains acceptance of the legitimacy of one side’s claim to political power by the people of the state or region”; “[v]ictory is achieved when the populace consents to the government’s legitimacy and stops actively and passively supporting the insurgency”; and in the unmistakable sub-title “Legitimacy Is the Main Objective”. What we are seeing is that practitioners and scholars alike are increasingly acknowledging this concept as pivotal.
To explore the pertinent queries regarding the legitimacy of drones the accomplished scholars of this volume analyze the principal points at issue by peering through the conceptual lenses of legality, morality, and efficacy.
However, what parameters actually construct legitimacy is by no means an easy or settled question. What actually creates an uncoerced pull toward compliance with an authority or a policy? Indeed, this query is one that has confounded and inspired political and legal philosophers for centuries. Machiavelli, Grotius, Hobbes, Rousseau, and Montesquieu are some of the most well-known, to name but a few. Yet this book does not set out to settle such a complex and essential matter. Rather, in the simplest sense, the chapters of this volume have been organized around some of the most accepted and straightforward principles of what constitute legitimacy. To be precise, to explore the pertinent queries regarding the legitimacy of drones the accomplished scholars of this volume analyze the principal points at issue by peering through the conceptual lenses of legality, morality, and efficacy. Put simply, this book begins with the uncomplicated premise that, at a minimum, sound policy should be legal, moral, and effective.
No doubt the Obama administration has been keenly aware of these parameters. In a landmark speech in 2013—one that was meant to be momentous for pulling back a portion of the opaque veil of secrecy on the drone program—President Obama finally explained to the citizenry that “the United States has taken lethal, targeted action against al Qaeda and its associated forces, including with remotely piloted aircraft commonly referred to as drones”. In this formal acknowledgment the president went on to strike the precise three chords that will organize this book. He first enumerated:
To begin with, our actions are effective. … Dozens of highly skilled al Qaeda commanders, trainers, bomb makers, and operatives have been taken off the battlefield. Plots have been disrupted that would have targeted international aviation, U.S. transit systems, European cities and our troops in Afghanistan. Simply put, these strikes have saved lives.
President Obama then continued making the case with his next key assertion, referencing both domestic and international law:
Moreover, America’s actions are legal. We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces.
And finally, to sound the third chord of legitimacy, the president invoked the Western world’s timeworn and long established moral framework for judging armed conflict,
So this is a just war—a war waged proportionally, in last resort, and in self-defense. … America’s legitimate claim of self-defense cannot be the end of the discussion. To say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance.
To this editor and author, these formulations and arguments do not come as a surprise. My previous work at the University of Geneva was an investigation into how legitimacy can be conceptualized as a target in asymmetrical armed conflict, and posited a theory on the components of such legitimacy. Thus I have my own motivations for organizing the volume in this manner, but the chapter authors have not been asked to explicitly endorse this theory. Nonetheless, even if it is beyond the scope to offer here a full elaboration of this theory, which can be found elsewhere, this Introduction is extended to provide an overview to our readers so that they can judge for themselves the validity of this theory as an organizational device, and the tools of analysis it offers.
Legitimacy as a Target
(see The Genii of the City and Conceptualizing pages of this site)
Accepting the thesis of legitimacy as a target has analytical consequences. By identifying a target at which terrorists aim, this most importantly provides policy-makers and analysts with the opportunity to think defensively. Since the deliberate targeting of civilians is generally accepted as the defining characteristic of terrorism, defending every civilian or civilian object would be extremely difficult, if not impossible. Nonetheless, if we understand that a response needs to be deemed legitimate to best defend this point of attack, it is possible to integrate strategic defensive thinking into the equation of counterterrorism.
One keen terrorism scholar has pointed out that while “[s]peed and force are both critical elements in a successful military campaign; it is far less clear that they are necessary ingredients of a successful counterterrorism policy.” The reason why this is so critical is because many who confront terrorism begin with the belief that the primary objective is to kill, interrogate, and detain (often without trial) potential enemies rapidly and with overwhelming force. To wit, this overly offensive approach aims to eliminate or remove all potential enemy combatants without delay or substantial caution. Such an approach confuses tactics with strategy. Overemphasizing this aggressive and tactical aspect of the conflict can lead to an undermining of the defensive strategy of protecting the target of legitimacy—safeguarding that these methods are only employed legally, morally and effectively.
By identifying a target at which terrorists aim, this most importantly provides policy-makers and analysts with the opportunity to think defensively.
There is little doubt that there will be times when the aggressive methods are necessary, just as in any ordered society. However, losing sight of defending the legitimacy of the government in such a struggle can come at great cost to the society as a whole, and plays into the hands of the purveyors of terror. Most notably, this offensive/defensive framing underscores the fact that defending legitimacy represents an essential strategic interest.
If legitimacy can indeed be examined, this again raises the question of determining the components of legitimacy so that we can analyze a counterterrorism response—in this case, the use of UCAVs across borders. To do so, the model of legitimacy as a target has been constructed using an interdisciplinary approach meant to integrate the most valuable features of differing viewpoints and methods. What this means specifically is that the three proposed realms of inquiry have a shared space of overlap to capture the integrative nature of the pull toward compliance; no form of validity is presented to dominate the model at the expense of the others. Additionally, the model allows us to conceptualize and visualize how these individually valuable components relate to each other. There is no doubt that determining legality, morality, and efficacy are valid analytical pursuits in and of themselves. Yet this model explains them as interrelated, rather than independent of one another.
Consequently, in employing the Habermasian view that the content of legitimacy can be rationally tested, I propose that there is a useful and proper way to conceptualize legitimacy in a manner that affords the application of a series of overlapping lenses (i.e. tools of analysis) for viewing and discussing these central issues.
Accordingly, this book has three sections: formal validity (legality), axiological validity (morality), and empirical validity (efficacy). The logic and reasoning for using legality, morality, and efficacy as the tools of analysis for assessing legitimacy will be expanded as the chapters are presented on the other pages of this site.
A Final Note on Multiple Disciplines
This book is a collection of investigations from different disciplinary perspectives, and at times those disciplines are interwoven and overlapping. Therefore, it is useful to make a more declarative statement as to how one might categorize this work within disciplinary lines. It is first necessary to elucidate the terms used to describe a research project that is meant to bring together and integrate various disciplines to resolve a question that is too complex to solve through just one field of study. For our purposes, it is the distinction between multidisciplinarity and interdisciplinarity that matters most. While a multidisciplinary work looks at a topic from the perspective of several disciplines at one time and makes a modest attempt to join together their insights, an interdisciplinary project brings together a collection of viewpoints from various disciplines and draws on the diverse insights by finding ways to integrate them.
Using these definitions, this book can best be described as a multidisciplinary work that at times crosses over into interdisciplinarity. This structure and design has been employed to help achieve two goals. The first is to consciously separate the work into clear disciplinary categories to shed light on the various questions at stake from important and valid perspectives. The second, made possible with the sharp distinctions in place, is to afford dialogue between the disciplines, as the chapter authors chose, in order to explore the space in which these spheres interact. To the extent that this has been accomplished to successfully illuminate worthwhile points of interplay, the contributing authors deserve credit. However, the complexity of the task undertaken also requires that responsibility falls to the editor for any failings resulting from this design.
* * * * *
It is hoped that through exploring the three varied pillars that would erect the legitimacy of drones the reader departs with an expanded purview on this developing military technology, the current usage of which is agitating our existing norms. This is not to say that a final judgment is to be rendered here on the legitimacy of armed drones for cross-border counterterrorism; rather the intent has been to set out some of the central parameters for such an assessment precisely because their legitimate use is so critical.
Beyond that, there has also been an effort to deal with some of these disturbances with a meaningful and practical proposal aimed at calming turbulent waters—that is, the establishment of a Drone Court that might reconcile the substantive international law at stake. A veritable discussion has begun about this idea, and this publication aims to push it further.
As the intention behind this project was to stimulate conversation about how a government under the threat of terrorism can best defend itself strategically—not just tactically—it is believed that these valuable and diverse contributions can serve to do just that. After all, discussing the legitimacy of drones for cross-border counterterrorism is significant because it is central to the outcome of the conflict itself.
"Drone Court" proposal in the news...
“Room for Debate – Should a Court Approve All Drone Strikes?”
Why We Need a Drone Court
The Imperative of a “Drone Court”
US needs to re-evaluate drone program, protect civilian lives – law professor
Guest Post: Drone Courts–A Response to Professor Vladeck
“‘Drone court’ should approve U.S. strikes, University of Utah law professor says”
The Steep Price of Executive Power Post 9/11:
Reclaiming Our Past to Insure Our Future
Has the government lost sight over direction of conduct for military operations?