Drone Panic: Posner Edition
In the past, presidents faced two major obstacles when trying to use force abroad. The first was technological. The available options—troops, naval vessels, or air power—posed significant risks to American military personnel, cost a lot of money, proved effective only under limited conditions, or all of the above. Dead and maimed soldiers, hostages, the massive expense of a large-scale military operation, and backlash from civilian casualties can destroy a presidency, as Vietnam and Iraq showed.
The second obstacle was constitutional. The Constitution includes a clause that gives Congress the power to declare war. Presidents have been able to evade this clause for small wars—those involving only naval or air power, or a small number of troops for a limited period of time. They have mostly felt compelled to seek congressional authorization for large wars, no doubt in part so that they could spread the blame if something went awry.
But drones have changed the calculus. Because they are cheap and do not risk the lives of American soldiers, these weapons remove the technological obstacle to the use of force. And because drone strikes resemble limited air attacks, they seem to fall into the de facto “small wars” exception to the Constitution’s declare-war requirement. Unlike large wars, drone actions do not provoke congressional attention or even much political debate.
Posner’s “technological obstacle” to the use of force makes, as I have argued before, no sense. Name one hostile country where the U.S. is using drones to target al Qaeda. You cannot, because they do not exist, and actually never have. Even Pakistan, the country most rhetorically hostile to drone strikes, does not try to shoot down U.S. drones. Neither does Yemen, nor Somalia (nor can it even try). In fact, what we see in Pakistan, Yemen, and Somalia are cases where there is no technological impediment. The U.S. can and has inserted proxies, CIA operatives, and SOF into Yemen, Pakistan, and Somalia at varying points in time. In the case of Somalia, JSOC was doing capture operations with the support of conventional naval vessels and aircraft from the sea or Camp Lemmonier for years before armed drones showed up.
Drones do not in fact change the calculus to initiate use of force, and as Posner seems to implicitly acknowledge, basically all limited wars that do not involve a large ground footprint bypass the “technological” constraint on war. But Posner arbitrarily draws a distinction between the use of drones (always alongside clandestine, SOF, or proxy personnel, and very often alongside manned conventional ISR, strike aircraft, and naval vessels) and other kinds of small wars, including “limited air attacks,” which drone strikes do not merely resemble but constitute, for unknown reasons.
Yet Posner insists on making hyperbolic statements such as these:
Yet it is a mistake to think that drone warfare will resemble the small wars of the past—the air assault on Libya in 2011, which lasted seven months; or the air assault on Serbia in 1999, which lasted three months; or even the military invasion of Panama in 1989-1990, which lasted one month. Drones can be, and increasingly are, deployed continuously, outside the theater of war, anywhere that a threat takes shape. They are not subject to the rhythm of mobilization and demobilization that occurs in a regular war. They’re used not only as part of a larger arsenal flung against a nation-state but also on their own as police sentinels, which pick off individuals and organizations thought likely to commit terrorist attacks in the future.
Where to begin here? Posner acts as if it is some novel feature of drones that allowed them to be deployed outside “the theater of war,” when in reality the U.S. military and intelligence community deploys drones virtually everywhere else they deploy drones. This really isn’t difficult to ascertain unless one is wedded to taking the term “drone wars” entirely literally. The U.S. deploys military and intelligence assets outside what the public considers a conventional theater of war all the time, and it does this nigh constantly. JSOC collected targeting data and coordinated sorties from Yemen itself, as it did during the first drone strike and as it has done since. JSOC troops and conventional aircraft were scouring Somalia for years before its first drone strike. In Pakistan, the role of other U.S. assets has been the most limited, but CIA operatives, proxies, but it still did include a clandestine deployment of SOF to assist in ISR collection and training.
The common denominator here is secrecy. It is secrecy and the additional legal powers granted through working under it that allow the U.S. to use military and paramilitary capabilities outside of what the public would call a conventional theater of war. Drones are not uniquely prone to clandestine operations, there are clandestine manned air fleets (and have been for decades), and there are drones that conduct traditional close-air support missions.
As for Posner’s claim that drones are “not subject to the rhythm of mobilization and demobilization,” what on earth is actually being said here? Drones absolutely are subject to rhythms of mobilization and demobilization. They require, like conventional strike aircraft, large forward bases with large numbers of supporting personnel – of the blood-and-bones variety – in order to maintain their operations. So, drones are indeed subject to mobilization and demobilization, because the personnel that support them are. As in the case of all other military operations, if you do a competent job of planning, you can work around deployment cycles to maintain an indefinite tempo of operations. This is not a capability unique to drones, the drone war is not older than Afghanistan, after all.
Posner, at least, is correct in noting that the drone wars cannot simply be resolved by appealing to the Constitution:
It is tempting to think that the president’s power to kill foreigners on a whim represents a failure of our constitutional system, which sought to ensnare the executive in a web of institutions that prevent the excessive accumulation of power in one man. But the constitutional goal was to protect Americans, not foreigners. Our Constitution has evolved to give the president the discretionary power to use force abroad because strong electoral incentives compel him to use it to advance national security, while Congress and the courts are parochial and cumbersome institutions that lack the capacity to react quickly to changing events.
Although Posner accepts that the AUMF furnishes blanket Congressional authorization for most drone strikes, he seems to imply as if this was some strange evolution of an originally limited intent (emphasis mine):
President Obama has acquired legal authority for drone warfare from the Authorization for Use of Military Force, the statute that Congress enacted at the request of the Bush administration just after the Sept. 11 attacks and was effectively a declaration of war against al-Qaida. Back then, one might have thought that the AUMF would authorize military operations in Afghanistan for just as long as necessary to defeat al-Qaida and the Taliban. But al-Qaida has spread into multiple countries, and independent groups have affiliated themselves with al-Qaida in order to obtain credibility and assistance. The AUMF will deliver war-making authority to presidents for decades to come.
If someone thought the AUMF was only going to authorize military operations in Afghanistan, they clearly did not read the text of the AUMF, or pay attention to U.S. deployments as early as October 2002. The AUMF intentionally contained no geographically constraining language because policymakers recognized al Qaeda and its affiliates presented a transnational threat. It is not as if there was some secret executive order or little-known signing statement intimating this lack of spatial specificity, it was plain to see in the legislation itself.
In October of 2002 the United States began military operations for OEF-Horn of Africa and OEF-Philippines. This predated the large-scale use of armed drones or any significant movements by al Qaeda out of Afghanistan. The Global War on Terrorism was conceived and executed from its inception as, well, a global war. Drones did not change the nature of these smaller wars outside of big theaters such as Afghanistan, just their character. Drones were late arrivals to Somalia and, after the initial 2002 strike, not dominating strike sorties until around 2010 or so in Yemen.
Ultimately Posner could have written a much stronger column simply expanding his argument on the dynamics of the Constitution and the separation of powers, which ultimately matter far more for explaining this story than any single piece of technology might. The uncomfortable reality is that these small wars are an endemic feature of the U.S. government and its structure, and that policymakers will respond to incentives and exploit opportunities with whatever tools are commensurate with the military task at hand. Indeed, his closing paragraph explains the problem more accurately:
The Constitution has thus become a sleek and lethal machine for projecting violence abroad in order to protect Americans without risking democratic values at home. No downside exists unless you live in a foreign country in Southwest Asia or North Africa, where people deemed terrorists and those living among them will start dying in ever greater numbers as the drone program swells into a worldwide system of policing… Unless American voters discover a humanitarian impulse to respect the lives of foreigners that has hitherto been lacking and call their president off, America could become a predatory state—without even realizing it.
But again, it isn’t drones that enable this. It is the mechanisms of U.S. government, the legal authorities granted to covert programs, and the small wars model that an immensely powerful U.S. military can bring to bear on a global scale. While drones are the most visible part of these programs, they tell far less of the story than many assume.