Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
Drone Strikes, ‘Imminence’ and the Need for Judgment, Part II
March 1, 2013
By Brad Littlejohn
In the first part of this series, I argued that the recently leaked memo on U.S. drone warfare policy represents an extension of the U.S. foreign policy of “active self-defense,” but in such a way that it would appear to unjustly license punishing people before they have acted. Acts of judgment, after all, are necessarily retrospective.
For a more helpful way forward, let’s look more carefully at the concept of judgment. Theologian Oliver O’Donovan defines judgment as “an act of moral discrimination that pronounces upon a preceding act or existing state of affairs to establish a new public context.” This retrospection, he says, “is especially important for the theory of punishment: ‘retribution,’ i.e., reacting to the past, cannot be recommended as a virtue of judgment; it is quite simply a condition for judging at all, as opposed to, let us say, taking an initiative.” Yet judgment does have a forward-looking dimension, inasmuch as it “both pronounces retrospectively on, and clears space prospectively for, actions that are performed within a community.” This renders judgment subject to “criteria of truth, on the one hand, and to criteria of effectiveness on the other.” Under this framework, the U.S.’s current military policy might be charged with a preoccupation with effectiveness at the expense of truth, a natural result of the prospective orientation that an exclusive concern with defense generates.
Although at first glance, then, Sofaer’s renunciation of “revenge” in favor of protecting the innocent strikes a reassuringly Christian note, it in fact represents a degeneration of the Christian just war tradition. As classically understood, O’Donovan argues, this tradition defines the just war as one of defense, reparation, and punishment—protecting the innocent, redressing wrongs suffered and punishing a violation of objective right or international law. Taken alone, as we have seen, the concept of self-defense can become “infinitely elastic,” legitimating pre-emptive action against anyone perceived to be a threat to a nation’s security or interests. O’Donovan laments that the modern “attempt to privilege the defensive aim exclusively at the expense of the juridical aims . . . withdraws from the concept of an international community of right to the antagonistic concept of mortal combat.”
Although revealing the problems in the government’s current approach, this points us towards a different, more plausible justification for drone policy. For despite all the shifty attempts to redefine “imminence” of threat, the real justification for targeting these al-Qa’ida leaders lies elsewhere. Consider these lines in the leaked memo: “where the al-Qa’ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.” What else is this but to say, “When the individual in question is a leader of an entity that is presently in ongoing armed conflict against the United States, he is a legitimate target”? Such logic would appear to be quite straightforward, and if such affiliation is established, there would seem to be no need to justify particular attacks on the basis of particular putatively “imminent” threats, any more than one would need to justify bombing a German tank division encamped in reserve a hundred miles behind the lines.
In other words, there is a retrospective judgment to be made, and it is primarily penal in its rationale: this organization/entity has undertaken armed violence against the United States and other innocent parties, and hence right dictates that armed violence may be undertaken against it, and against any who have attached themselves to it. Such a procedure would be readily intelligible from the standpoint of Christian morality and international law.
Why then the evasion? The problem lies in the anomaly of al-Qa’ida as a nebulous entity, a non-state party to an international conflict. To be at war with al-Qa’ida is to be at war with everybody and at war with nobody—the enemy may be in any country, but cannot be identified with any country. Likewise, al-Qa’ida’s war is not narrowly directed against the United States, but against opponents of its agenda in any country. It is from this fact that suspicions arise that what we are really dealing with is a species of criminal law-enforcement, in which case, Constitutional concerns about due process necessarily apply when American citizens are involved. But the function of “due process” is of course to fulfill the criterion that judgment be public and be publicly accountable for its truth, a criterion that must be met whoever’s citizens are being targeted.
The U.S. government, unfortunately, wants to have its cake and eat it too. They want the convenience of treating al-Qa’ida as an international actor against whom a war can be waged, but without the limitations that international accountability would impose; they want to treat al-Qa’ida operatives as individual criminals, but without the limitations that domestic legal accountability would impose. Al-Qa’ida exists in a gray area between these two realms, and into that gray area disappears the indispensable criterion of publicity—without this, attacks can never be judgments, but only assassinations.
It seems inevitable, then, that if the U.S. is to craft a legally and morally intelligible counter-terrorism policy (of which drone war is just one small part), it will have to forego the essential unilateralism of a posture predicated purely on self-defense, and recover the concept of “an international community of right.”
—Brad Littlejohn is completing a Ph.D. in Reformation political theology at the University of Edinburgh. He writes frequently for a number of blogs (especially his own) on the history of Christian ethics and political thought and on contemporary Christian perspectives on politics and economics.
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