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 I

Brad Littlejohn


February 22, 2013

By Brad Littlejohn

The recent firestorm of controversy over the leaked Department of Justice (DOJ) memo on the use of drones to target U.S. citizens has focused perhaps too narrowly on that last phrase, “U.S. citizens.”  While the Constitutional concerns of due process deserve important consideration, these concerns merely add an additional set of procedural complications to a broader ethical concern, one that applies irrespective of the nationality of the target.   

The central ethical concern raised by the memo has to do with the concept of “imminence.” The memo states: “the condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”  Waiting “until some theoretical end stage of the planning for a particular plot would create an unacceptably high risk that the action would fail and that American casualties would result.” 

Accordingly, as some observers have noted, the DOJ wants to act from a policy of “active self-defense,” a longstanding U.S policy articulated by Abraham Sofaer in 1989: “our responses should go beyond passive defense to consider means of active prevention, preemption, and retaliation. . . . Our aim is not to seek revenge but to put an end to violent attacks against innocent people, to make the world a safer place to live for all of us. Clearly the democracies have a moral right, indeed a duty, to defend themselves.”  Not everyone is convinced. Jameel Jaffer, deputy legal director of the American Civil Liberties Union, has complained that the memo “redefines [imminence] . . . in a way that deprives the word of its ordinary meaning.” Certainly, it is not hard to see why Jaffer is alarmed.

While we might at first argue that the current drone policy is unjust because it supplants the traditional concept of self-defense with one of pre-emption, it should be clear on reflection that pre-emption is the logical conclusion of a doctrine of war justified entirely from a concept of self-defense, as Sofaer’s is. All defense is, to some extent, pre-emptive. You can hardly wait until you’re first shot in the chest to fire back at your assailant. It may be enough that he’s gone for his gun, but only if you have clear evidence that he intends to shoot you.

How far back can we take it, though?  In the real world, we quickly run up against the limit of our inability to project someone’s future actions. But what if that limit were removed?  If we knew well in advance that someone would be a threat, why wouldn’t the logic of self-defense, of maximally preventing future danger to oneself and one’s dependents, allow us to attack them before they had begun to act?  

Some of the smartest science-fiction films have attempted to wrestle with these ethical dilemmas, among them 2004’s Minority Report and 2012’s Looper.  The former shows us a “pre-crime” law enforcement program which relies on the foresight of “pre-cogs” who predict murders, allowing officers to apprehend and incarcerate the would-be criminals before they have committed their crimes.  The latter, with echoes of the Terminator films, chronicles Joe, a trained but reformed assassin who transports himself back from the future to kill the five-year-old version of the man who will become “The Rainmaker,” an unstoppable global crime lord who kills Joe’s wife, among many others.  Joe, indeed, might be taken as an allegory of drone warfare, with its inevitable collateral damage and its tendency to create the very threats it seeks to destroy (the film hints that Joe’s attempt at pre-emptive “vengeance” will set the young “Rainmaker” on the path to violence).

In both films, our moral intuitions militate against this reductio ad absurdum of the logic of pre-emption. But why?  Is our reaction pragmatic, because we know that the future remains stubbornly open, as the films seem to suggest, even when we think we’ve found ways of foreknowing it?  Or is it because this pre-emption is intrinsically unjust, punishing people for things they haven’t (yet) done?  The two concerns, I would suggest, are inseparable.  It is precisely the fact that we are always free to choose otherwise than the path we have begun that renders intelligible a distinction between the acts we have done and those we have not yet done.  While God can transcend this contingency to judge our future acts, human judgment, by its nature, can only be a retrospective pronouncement. 

This retrospective limitation of human judgment would seem to impossibly constrain the exercise of military power, at least if we understand this power only in terms of “self-defense.”  In the next commentary, I will argue that a more holistic concept of judgment and just war could provide a more coherent ethical basis for evaluating drone warfare.

—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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