[P]erhaps the most disturbing feature of the paper is how it interprets the criteria of “imminence” and “feasibility of capture.” It argues correctly that, under the international legal doctrine of self-defense, lethal force is justified in response to an imminent threat of attack upon the United States. But it then defines “imminence” so broadly that it effectively eliminates the requirement altogether. There need be no showing, the paper claims, that an attack will “take place in the immediate future.” Instead, it coins what it euphemistically calls a “broader concept of imminence.” On this view, an al-Qaeda leader by definition poses an imminent threat, no matter what he is doing—because al-Qaeda is continually plotting attacks against the United States [supposedly], will undertake them whenever it can do so [supposedly], and we may not be aware of all such plots. In such a case, all that is required is a “window of opportunity,” not an immediate threat.
This reasoning directly contradicts the central purpose of the “imminence” requirement—to ensure that lethal force is used only as a last resort. If there is no evidence of an immediately pending attack, it is possible that some alternative way of countering the threat—in particular, by capture—may become available. And if so, then killing the suspect is neither necessary nor legal under domestic or international law. Is it any coincidence that the Obama administration has killed hundreds of suspected terrorists [and hundreds of civilians including children] with drones outside Afghanistan, but captured almost none?
The white paper properly acknowledges that killing in self-defense is appropriate only where capture is not feasible. But it fails to address the central question posed by drones in this regard: Because drones permit the US to kill without risking any American life, and a capture operation will always incur some risk, does the availability of drones change the feasibility criterion? It probably should not, but it is hard to believe, again given the administration’s record of hundreds of kills and virtually no captures, that it has not.
In fact, the capabilities of drones raise a number of related questions that go entirely unasked in this paper. Drone technology has made it possible to use lethal force in many situations where we could not or would not have even considered it in the past. Unlike conventional military operations, drone attacks require no “boots on the ground,” and therefore do not pose a risk to American lives. Unlike bombings, they have pinpoint accuracy; they therefore reduce the collateral costs of killing and may be easier to disavow. Because drones can effectively travel the world while being controlled remotely from home, they permit the “war” to move far beyond the battlefield. And drones have made it possible for the US government to do something that was unthinkable before, and should be unthinkable still—to kill its own citizens in secret. In short, drones radically reduce the disincentives to killing. And that may well make a nation prone to use military force before it is truly a last resort. That certainly seems to be what has happened here.