The Authorization for Use of Military Force against Terrorists, Public Law 107-40, was passed by Congress with one lone dissenter, and was signed by President George W. Bush on September 18, 2001. It is still in effect, and remains the central specific legal authority for all of the Obama Administration’s military operations against “organizations, nations, or persons” associated with the 9/11 attacks.
Use of armed drones is one means to the military ends that the authorization, in the manner of a declaration of war, effectively obligates the President to pursue. Critics of the drone campaign therefore need either to explain the superiority of specific alternative approaches, or to call for and justify an end to the state of war that the AUMF declares.*
Though repealing the AUMF would of course leave the President’s prerogatives as Commander-in-Chief unaffected, it would greatly impair and likely truly terminate the so-called War on Terror. In the meantime, the protest against a novel tactic that would leave the theory of the war and the war itself in place makes for a peculiarly uncertain and ambiguous form of raising the cost of fighting. At best, such opposition may encourage decision-makers to assess their own conduct more rigorously: one glance over their shoulders, another pointed toward some future tribunal – ideal-historical or very real – when the fuller truth, and whatever justifications and failures, can come to light. Yet it also seems to urge an adjusted cost-benefit analysis in which the mental anguish of sensitive intellectuals would trump other concerns: “old-fashioned” levels of collateral death and destruction; physical risks to military operatives; and, the whole supposed point of this war, “prevent[-ion] of future acts of international terrorism against the United States.”
Conor Friedersdorf’s widely remarked “to Hell with them both” to Obama-Romney reads as “to Hell with you all,” yet at the same time as “to Hell with us all.”
The protest vote, for the Libertarian Gary Johnson, that Friedersdorf advertises occupies a position at the limits. It is meant to be both within and outside the system – both with and against most all the rest of us who, unlike Friedersdorf, will vote for a nominee of one of the two damned major parties; both with and against those who more than a decade ago committed all our souls to perdition by virtual consensus; both with and against those who, at every major opportunity since that decision, the decision for war, have re-affirmed it. It is this decision for war for which we are going to Hell, not because what Ned Resnikoff has dubbed “extra-legal flying death robots”** are currently our weapons of choice, rather than bombers, cruise missiles, or Navy SEAL teams; and even less because determinations on precisely whom and precisely how to attack are made under other than complete liberal-legalist transparency.
In Pakistan and Yemen, all military means to the same immediate ends would also bring death and destruction, very likely greater death and destruction. They would also entail normal military-operational “non-transparency,” and in many cases higher risk to American and allied personnel. These other military means might not be ones whose very efficiency are thought to raise unique questions – for instance, do they make war too easy, too disproportionally safe and antiseptic for the drone warriors? – but these cannot be the core questions: The original and only necessary, immortal soul-endangering problem originates in the decision to kill at all. Put more generally: Is the resort to war justified? Put more politically and concretely: Should we overturn our still in effect decision for war? Criticism that does not address this question, that instead merely repeats what we already know – that war is awful; that it is morally, culturally, and politically deforming; that it exceeds the terms of normal, lawful policy; that it makes us act like “barbarians” all on the way to perdition – achieves little, nothing, or worse.
Yet the debate on the real issue does not seem to be a debate that the drone critics want. Perhaps they do not feel prepared to take on the war. They may rightly intuit that they would lose the argument in the court of popular opinion, and lose it badly and self-destructively. That same intuition may also explain why, instead of building a convincing case against any war on terror, under whatever name or without a name, they instead focus on emotionally manipulative treatments of novel horrors, sometimes joined to a pacifist or quasi-pacifist refusal to acknowledge a morally arguable other side – even though that other side probably includes the vast majority of their fellow citizens.
On this level, the difficulty that war opponents face – or decline to face – is that the American polity taken as a whole is not simply or even very arguably anti-war (far from it), even if the public may sometimes like to think of itself that way. No observer of recent history can deny, however, that Americans are fully capable of disillusionment regarding any unsatisfactory or unprofitable military operation. Yet an alternative, pragmatic or non-moralistic debate is impaired from the start. Because the decisive facts on the other side would amount to the most sensitive conceivable military intelligence, they will not be forthcoming. War opponents are left to proceed on the basis of incomplete or general information, or supposition. A state of war, under whatever name or legal designation, regularizes and implicitly demands enforcement of this inequality between citizen and decision-maker. There is no altering the predicament: In matters of war, even in a liberal democracy, civilians will be at a disadvantage to warriors in war just as they are generally at a disadvantage to doctors in treatment of life-threatening diseases, except that modern medicine does not typically rely on secrecy as well as expertise. At some point, under any regime except for one committed absolutely to pacifism or other faith-based political healing, we are forced to trust those to whom we grant (or anyway who hold) the power of life and death to determine by themselves what is “necessary and appropriate.”
Those disinclined to offer such trust may find it safer to remain politically irrelevant – never moving beyond heated discussions on internet discussion threads – than to risk association with a potential untimely dropping of the guard, or, much worse, with the enemy. If radical Islamists seemed as attractive to peace activists today as the “Third World anti-imperialists” once seemed, there might be more temptation along the latter lines. Instead, left and right libertarians never deny being enemies of the new enemies, at least as a matter of ideals. According to the traditional logic, that makes the left and right libertarians our friends, if not necessarily very useful or pleasant ones. As long as they merely refer to their protest votes or their disaffection rather than urge a revolutionary struggle or other uncompromising opposition, as long as they are thought unlikely to affect the outcome of an election or other matters of import to the rest of us, they will be tolerated, even indulged, but only to a point, which may be just as well for them: If they managed to convince their fellow citizens that the threat was never or no longer to be feared, would vanish if we let it, their turning out too bloodily wrong could be devastating to their cause.
As the total resultant of the vectors of American, neo-imperial, post-modern, advanced capitalist mass democracy, our quasi-autonomous and inherently illiberal anti-terror policy may not be morally, conceptually, or strategically sound. It may even be mass-pathological or, viewed in the eternal light, evil.
Yet diverse calculations of perceived interest may still reinforce each other powerfully in favor of the current approach, and align with a broader moral calculation as well: Those who support or for that matter are tasked with implementing the drone campaign, including especially all who believe the threat to be substantial, must imagine where American policy and the world, including the civilians of Waziristan as well as in other places, would be if one or more anti-American mass terror events were carried off by an intact and operational militant network. To err on the side of overkill may therefore always seem in an administration’s overwhelming short-term political interest, in the immediate vital interest of the people that officials and operatives are sworn to protect, and in the larger interest even of those in the crossfire.
If for these or other reasons a movement to repeal or at least to re-examine the AUMF cannot develop, neither the actual end of the war nor the comprehensive legalization of the current war-making framework will likely occur except as a result of the same presidential-level process that the AUMF enables. A cessation of hostilities may not be announced, commemorated, or even understood for what it is until well after the threat, or potential threat, has been judged to have ended, and until furthermore the judgment is seen to equate with a consensus. We may therefore wonder whether the state of exception will be with us forever, unless perhaps replaced by some new crisis. Yet new information on the military, diplomatic, and legal state of the drone campaign from the Administration’s perspective reveals that the Pakistan strikes have steeply declined from a height of around 12 a month to a current rate of 4 a month – possibly because so many targeted individuals are no longer around to be targeted. This datum and other indications suggests that drone warfare and related War on Terror issues may well be declining in significance (according to Obama Administration design) even as oppositional rhetoric has been rising in volume.
Those saving their loudest cries of outrage for an Obama Second Term may find themselves deprived of an object to protest. Still, even if strikes in Yemen and elsewhere also subside, and other remnants of the War on Terror fade away, the problem will return in some other form, and not because drones are here (or everywhere) to stay (at least until the countermeasures). The damning implications of the exceptional circumstance and the “extra-legal” decision will return because they are inherent in government itself.
[wpspoiler name=”*note on The AUMF and ‘State of Exception'” ]Since 9/11/01, or legally since 9/18/01, we have been treating terrorism as an exceptional threat justifying and requiring an exceptional response. “Exceptional” in this instance means, among other things, “beyond the scope of liberal law and morality.” The Authorization for Use of Military Force against Terrorists, passed near-unanimously (the lone dissenter was not Ron Paul; nor was she opposed to the mission), is a pure invocation of “the exception” – the exceptional circumstance that has been discussed so extensively in recent years, and specifically in the context of the War on Terror, yet does not seem to have reached many otherwise sophisticated observers of American politics. The AUMF’s legally meaningful words, forming a single clause, vaguely instruct the Commander-in-Chief to use “necessary and appropriate” force against a broadly defined enemy: to solve the problem as he interprets it. As a solemnly enacted positive decision to leave positive law behind, it moves us beyond the horizon of essential liberalism (here as modern libertarianism of the right or left), whose life is the rule of law.
In a sense, liberalism cannot understand what we have done in its name: Warfare can be “bracketed” or “conventionalized” by law, but its internal logic is, as the law acknowledges, a logic of necessity, which is inherently disruptive of all brackets and conventions. War begins at the failure of law, though not of the state. Or we can say that war is always at some point action of the state beyond the rule of law. This re-location of state power differentiates war from policing, and gives the “declaration of war” its true import as the legalized suspension of law. Our notorious and traditional difficulties understanding and nailing down what our own Constitution indicates under war powers all stem from this same problem: War precedes and exceeds the constitutional space and marks its insufficiency. The Constitution and the office holders it designates do not even know how to say so except by pointing beyond their own competence.
Put simply, in 2001 the Congress duly legalized our Resnikoffian “extra-legal” – whether in the (then unavailable) form of “flying death robots,” or in the forms of special forces raids, “conventional” mass military deployments, high altitude aerial bombardment, and so on. This is not to suggest that presidents have subsequently operated entirely without effective restraint: How much authority the AUMF did and constitutionally could cede to the executive has been at issue ever since it passed, but the original law, subsequent legislation and court decisions, and political influences and checks, even where they have narrowed or sought to narrow the scope of presidential discretion, have at the same time confirmed and regularized the executive’s operation well beyond pre-9/11 norms. If Obama has been acting as an “imperial president,” as the civil-libertarians say, it is arguably because we have left him no choice. If he is a little bit pregnant with dictatorship, our liberal democracy is the father. As a nation we seem to prefer, or simply require, things to be that way.
Regarding the conflict formerly known as the War on Terror, we have not yet withdrawn our specific permission, indistinguishable from a demand, for the Commander-in-Chief to get done whatever needs to be done – if necessary while we are looking the other way.[/wpspoiler]
[wpspoiler name=”**additional background links” ]Resnikoff has written a useful overview of the Stanford/NYU report “Life Under Drones,” and has also collected some responses of the “pro-drone crowd” arguing that the information that so impresses the anti-‘s merely re-cycles old news and anti-American propaganda. Joshua Foust also criticizes the report, and has offered a qualified defense of the policy. [/wpspoiler]