Letters

On May 13, 2015, professor of international studies at the University of Denver, Alan Gilbert, published “Letters from Richard Falk, Greg Stanton, Angela Keaton, and Coleen Rowley on Koh and drones”:

For my initial piece on “Law School profs whiff on student protest: Harold Koh and the immunization of war crimes,” see here.

***

Richard Falk is an eloquent and courageous international lawyer, appointed by the UN as special rapporteur on Palestine and both refused admission to Israel, though jewish, and jailed for a night…See here and Richard’s blog here.

“Thanks, Alan, for such a comprehensive overview of the issues posed by the appointment of Harold Koh and the protest it has aroused, as well as the counter-protest..I find myself an uncomfortable middle ground. I think Koh is more in line with professional standards than Yoo, but it is a close call that deserves a nuanced assessment.

Thanks for your persisting thirst for justice, whether by way of poems or prose!

warm best wishes,

richard”

***

“Dear Richard,

     Thank you.  Your note  means a lot to me.  I did not wish to paint Koh as as bad as John Yoo; Yoo used his official position to legitimize torture by  any reasonable account.  But it seems to me that Koh sadly stepped in to defend drone killings, often murders  of civilians – a more controversial issue among lawyers, though not to the villagers in Yemen threatened by drones – officially in a broadly comparable way.

      Even nuanced, murder (though on a smaller scale than invasion) and making lots of ordinary people fear and hate the United States is unwise – drones play well perhaps in the United States, but not in the world (the testimony of Yemeni friends of the US is particularly valuable about this).  And Barack did not need drones to get Bin Laden (though the Seymour Hersh story just out is very disturbing even about that great success).

     It would be good for Koh’s defenders to speak straightforwardly to the issues raised by drones and to his official position, not duck them in the name of “a long human rights record, including under Obama,” “free speech” and “government service.”

    Implicitly,  this stand may cement Koh’s potential nomination to the Supreme Court by Obama or Hillary; this would make it hard for Republicans (Rand Paul aside) to reject him; and he would probably do some good things.  But that is a sad thought – that for a human rights lawyer, the way to scramble for the Court with Democratic Presidents is to participate in criminality (and counterproductive criminality, as it so often is, to boot). Corrupt…

    Thanks for all that you do, and for providing an inspiring example.

       All the best,

       Alan”

 ***

     Angela Keaton, who is a fine editor at Antiwar.com, wrote briefly:

‪    “Don’t regret getting a law degree but unlike nearly all my other schooling, I am barely in touch with any of my law school class mates save for the counter culture types who ended up there for other reasons (e.g., theater people, gay activists, Christian homeschooling defenders, and those who do pro bono work for death row inmates.)

It’s a very strange mind set. Got into a right wing event a few years ago to hear John Yoo. He’s not a normal person.

Angela”

***

    And here is an exchange with Greg Stanton, who works against genocide and who is a friend of Harold Koh’s:

“Dear Alan,

I know Harold Koh very, very well.

I knew him as a student at Yale Law School and as a Foreign Service Officer in his bureau when he was Assistant Secretary of State for Democracy, Human Rights, and Labor.

The attack on him is wrong.  It is libelous.

Dr. Gregory H. Stanton
Research Professor in Genocide Studies and Prevention
School for Conflict Analysis and Resolution
George Mason University”

***

“Dear Greg,

   Thanks for the letter.   I am sure Koh is a great guy and an authority and activist for human rights.  That said, he either did or didn’t provide authorization for drone killings (many of them civilian, including 2 of the Americans).  If he did, then the criticism is true.  If he didn’t, that would be a mistake by the students but not obviously libelous.  But it would be a serious mistake.  Can you offer me some reason to think that he didn’t deliver a speech, as an official, on the legality and morality of drones?  I would be very happy to know to this, grateful to be able to apologize, and if you could give me some further reason to think well of Barack (whom I worked for twice; was in the civil rights movement and thrilled he was elected) and not that he is, in the American Presidential way, committing crimes, I would be even happier.  Please tell me.

     All the best,

     Alan”

***

Greg responded:

“I just haven’t tried to follow everything Harold has written or said.  And I don’t have the time to adopt your agenda for political correctness.

There are several instances where passive resistance has deposed genocidal dictators (Milosevic and Taylor).  But usually when a genocidal force like ISIS starts cutting off heads, the only way to stop it is relentless, superior armed force.

I think you are wrong that use of drones is a war crime.  We are clearly at war with Al Queda and ISIS.

I think Congress should declare war.

I would like a declaration of war debated more openly and directly, like Senator Kaine.

But Obama has claimed that it already has done so in its authorizations and resolutions.

The laws of war make the leaders of Al Queda and ISIS legitimate targets.  Drones are much more precise ways to kill them than carpet bombing (which was a war crime.)

If you argue that civilians have been killed as well, it is something, I’m sure Harold and I would concede.  But civilians have never been intentionally targeted to my knowledge, as they were at Hiroshima and Nagasaki.

Or by Al Queda and ISIS every day of the year.

Dr. Gregory H. Stanton
Research Professor in Genocide Studies and Prevention
School for Conflict Analysis and Resolution
George Mason University”

***

    “Dear Greg,

      The New York Times ran several stories on drone killings which plainly target civilians or in which the so-called collateral damage is the worst aspect.  One is the murder of Abdulrahman Al-Awlaki, the 16 year old son of the imam, who was out looking for his father, along with his cousin, also 16 (both American citizens) along with 8 Yemenis at a rural food stand.

      Another was of a village imam, who has 8 children and had spoken against Al-Qaida.  Three Al Qaida people went to meet with him – and he took his cousin the sheriff.  They were all killed by drones.  A

      These are typical, I suspect, not atypical.  Obama didn’t use drones to get Bin Laden.

      The death of prominent civilians (innocents) leads to widespread horror against the United States.

      Another Times story: drones lurk over a village.  All the villagers are frightened.  One 16 year old girl fearful hides in bed with her father – not typical – and mother.  A friend of the US testified about this experience to Congress – and said that the entire village, from disliking Al-Qaida, had moved to fear and hatred of the Americans.

       I have a Pakistani student and friend, Rifaat Hussain, who is a leading Pakistani strategist  (he is a secularist and long ago, a political radical).  He  has testified at Stanford (where he was invited by Condi, also my student) about the horrors of drones in Pakistan.  One has but to listen…

     It is true from an American point of view that drones are much less costly than invasions, and kill many less people (they are needed in American politics to appear “tough,” though taking out Bin Laden – sans drone – was probably sufficient).  It is true that this is not carpet-bombing (a war crime in your words).  But it is not true that these “targeted” killings often from half way around the world, on modest intelligence, are of leaders of enemy organizations and often true that they terrorize and kill civilians.

      No one else, looking at the United States – except perhaps interested parties in the ISI (Pakistani intelligence) and other government organizations – sees drones positively…

      The United States has created/instigated ISIS through its two Gulf Wars – both losing enterprises, the second remarkably.  The US has less and less force to use as it faces more brutal opponents.  That Congress declaring war on ISIS will have much effect, let alone a positive one, is not obvious as opposed to allying with Iran and Syria to stop ISIS which Obama is moving intelligently to do.  He does this, I note, under Democratic as well as Republican opposition.  Your talk of war here needs a colder eye…

       Koh chose, as an official, to front for drone policy.  This works with the media and careless law professors who just know that he is a major figure on human rights.  It did not work for the students, and your answer does not work for me.

      “Political correctness” – is just an insult to people whose facts and arguments one doesn’t want to answer.  It would be best avoided.

      On your concluding argument, I seem to remember W. saying that “we” are the good guys and “they” are the bad guys.  So someone built a network of torture prisons and murdered 100 people in custody and extraordinarily rendered – must be Bin Laden…

       Harold Koh was eloquent about Bush.  Perhaps you might recall his words then about the drones you now embrace.

       Best wishes,

       Alan

I enclose another post on drones from my blog, written 3 years ago (while Obama was running for reelection):

THURSDAY, JULY 26, 2012

Murder by drone: the seductiveness of the ring of Gyges

The administration and its democratic flacks (including to some extent, sadly, Andrew Sullivan) push the use of drones as minimizing American involvement – no large scale land occupations – and thus, supposedly minimizing innocent civilian casualties. On July 14, the New York Times published a creepy op-ed piece by Scott Shane, their “national security” reporter, parodying the moral issues. It is of the form: here are “serious” answers to nearly unstated objections.

The content, however, mechanized murder controlled from video boards half a world away, of people whose language the operators do not speak, is not washed away. Even Obama has sought to limit the murders – “collateral damage” – by offering the absurd idea that any young men walking near a terror-suspect is himself a terrorist (this is even more weak-minded than joint enterprise in England – see here). It does provide “good” kill numbers for the Times reporter’s interviewees to repeat, but the guilt by association here probably needs no further comment.

David Maxwell a retired colonel who teaches at the Maxwell School at Syracuse, sent around a very good letter pointing out that killing people by drone, supposedly easier than using other weaponry, does not remove or mitigate the crime of war (see below; h/t Paula Broadwell). Put differently, murder of a large number of civilians is mass murder – part of what the crime of war has always been – even if it is not as massive as say, aggression against and occupation of a country. One can observe that difference without commending the former, particularly since it breeds, in response, hatred of the far off and secretive killers…

Worse yet, as the wording of the first paragraph of the Times’s apology for drones suggests but does state, murdering people in a sovereign country with which one is not previously at war is an act of aggression, a violation, inter alia, of Article 2, section 4 of the United Nations Charter (fought for by Nuremburg prosecutor and later Supreme Court Justice Robert L. Jackson, representing the United States government) and Article 6, section 2 of the Constitution, the Supremacy Clause, which makes treaties signed by the United States the highest law of the land.

Shane cites Bradley Strawser a former air force officer and putative moral philosopher, teaching at the Naval Graduate School who says that given that the cause is just (i.e. killing terrorists), the taking out of others – wiping out innocents – may be “morally obligatory.” Let’s see: the US government commits aggression in another country. That is the crime of war – the cardinal injustice. That removes the Strawser’s thought “given that the cause is just” – though he fails to notice this obvious issue (even Shane, a National Security reporter for the Times, is elliptically aware of the issue of sovereignty).

But perhaps the startling injustice is overridden, in this case, by killing an actual mass murderer. That is, in fact, a powerful case for Obama’s killing of Bin Laden, not by drone, in Pakistan.

But the justification of this assassination is not generalizable (i.e. it does not justify killing members of the Pakistani Taliban, who have not committed crimes against Americans and have not been charged or convicted in any court, and even the White House offers no statement about them; it certainly does not license murdering random others – i.e. the wife giving one of the Mehsud brothers a back-rub on a roof…), let alone, raining drones down on another country.

In addition, as Maxwell points out, even sniping and certainly capture and arrest are more likely to minimize civilian casualties.

Beyond aggression, butchering civilians in the course of carrying out a war is a separate crime. The idea that the latter could be “morally obligatory” could only occur to someone who puffs himself up to teach philosophy at a military academy (ordinary officers and many teachers at these academies know better).

Avery Plaw, a political “scientist” at U. Mass. Amherst, compares civilian casualties in Pakistan with civilian casualties in declared wars, and finds – surprise – that the US has murdered fewer. It is not clear what sets of figures Plaw is using for the comparison (one would have to be real rather than Rumsfeldian about the figures in Iraq, for example). But neither Shane nor Plaw chooses to notice that the United States is not at war with Pakistan, that these acts are sheer aggression by the United States and thus, need a special justification if one is available. Were this not an apology of the Emperor’s minions and thus, in the Times, it would be really really dumb…

Now if the US is getting mass murderers like Bin Laden or those plotting mass murder, perhaps that would be a sufficient justification. But in most cases, this is improbable. More likely, Pakistan is just weak, the government isolated from the people and paid for by US military aid, the American press like Shane and political scientists like Plaw fumbling and sleepy….

But US efforts are producing a mass movement in response in Pakistan, drone murders being a motivation, which are quite likely to result over time in the Pakistani Taliban coming to power in a nuclear armed state. As a foreign policy, this is so counterproductive and stupid, in addition to its moral odiousness, that it is hard to take in (short term “expediency” defeats the long-term goals of the United States, even where, as in Obama’s case on reducing nuclear weapons, the long-term goal is good). The Democratic policy group is about as feckless – “it’s the only way we can get at them” – as it is possible to be, and journalists like Shane are enablers (he always has the possibility of looking at himself in a mirror and choosing a different course…).

Low balling also helps. Only 3 civilians have been killed this year according to the CIA (and 149 “terrorists”! And we have a bridge in Brooklyn you might like to buy, too…). The CIA, in the business of disinformation (not to mention the US government as a whole) is just who s professional reporter should invoke…

I have spoken with Syed Rifaat Hussein, a former political theory student and close friend, and, today, the leading strategic studies professor in Pakistan. Rifaat reports the slaughters of innocents- in large numbers – by American drones. Obama has probably has cut this some. But the figures in Shane’s article – those that the administration gives out – are phantasms.

At a meeting about drones in Pakistan, Clive Stafford-Smith a lawyer who has defended prisoners at Guantanamo, befriended a young Pakistani whose 16 year old cousin was killed by drone. The boy set out to report on drones. A few days later, he, too, along with another teenage cousin, was murdered by drone. That cases like this have been routinely reported by Clive and others and ignored says a great deal about this “debate” in policy circles.

In a brief letter to the Times (the Times does not allow long letters), Clive gets the issue right.

“Are Drones a Superior Form of Warfare?

Published: July 19, 2012

To the Editor:

“The Moral Case for Drones” (news analysis, Sunday Review, July 15), misses the most relevant considerations. It is not a matter of whether drones kill fewer civilians than my poor father did when bombing Germany (an experience that turned him into a strong supporter of the Geneva Conventions).

Rather, the first question is the issue of legality: Targeting militants in Pakistan without declaring war is illegal. President Obama would not dare to send in F-16s because that would be a more patent act of war.

Second, drones drastically lower the threshold at which politicians are willing to kill, because there is effectively no political downside. Witness the American military strikes in Waziristan, Yemen and Somalia, yet nobody in the United States seems to think twice about them.

I have been to Pakistan and have seen the carnage that Mr. Obama’s robot war has created. As Americans, we need a far more informed debate before declaring that this is the way to go.

CLIVE STAFFORD SMITH 
London, July 16, 2012

The writer, an American lawyer, is the director of Reprieve, an organization that advocates prisoners’ rights.”

One addition to Clive’s letter: what drone-murder does is not only illegal but immoral. We rightly condemn the terrorists for murdering 3,000 innocents on 9/11 and many otherwise. But the US government in Pakistan, too, has murdered many innocents. When the US takes out innocents, it, in fact, commits terror by drone.

The Times is a little uncertain about retailing, so abjectly, the emperor’s new clothes about murder. Peter Minowitz sent me an on line Opinianator piece from the Times website by two philosophers, John Kaag and Sarah Kreps, invoking Plato’s tale of the ring of Gyges below. In book 2 of the Republic, Glaucon tells the story of a shepherd discovering in a storm in a chasm in the earth a large wooden horse with a naked corpse in it, adorned only by a golden ring. Taking the ring, he returns to his fellow shepherds and discovers that, turned inward, it makes him invisible. He goes to the capital and commits great crimes,* and so, Glaucon suggests, would any other person who had such a ring.

For more on the resonance of this tale in Plato’s subtle psychological understanding of politics as well as in Lord of the Rings and Oscar Wilde’s Portrait of Dorian Gray, see here, here and here.

This piece gets, to some extent, the darker associations of drone murder. But isn’t evil by invisibility still evil? imagine if Hitler could have gassed all the Jews, Roma, Polish children – he murdered some 2 million, and many others – without anybody connecting it to him.

Would the act not be evil? And if the invisibility cloak slipped…?

Actually, Hitler’s invisibility in Germany was guaranteed by the political-media-genocide complex…

What David Maxwell names “the seductiveness of drones” gets the ring-like fascination of this weapon for Obama and others. This is the fascination of the ring in Tolkien, developed, as an Oxford classicist, from the ring of Gyges in Plato, but with the compulsion/fascination of the ring – “my preciousssssss” – spelled out.

Though the two philosophers’ account has an element of truth, it also misses the main point. Everyone affected knows that Barack Obama orders this murder. American militarism resembles more the Company in Avatar (largely privatized), sending its minions to dominate and butcher the Navi. The American murderers under Obama are too pathetic actually to send soldiers to fight, even mercenaries. Instead, they send their missiles from Creech Air Force base in Nevada half a world away.

Just change the name of the killer to Russia or China and imagine those suffering to be in Montana or Texas, part of a weakened United States in the late 21st century – see “Imagine” here – and ask how you would feel (this is one of Ron Paul’s good points). Many nations are working on drones; the clock is ticking. Good luck on making this morally sympathetic or politically wise.

Part of Obama’s motivation, as a politician, is to head off attacks from the Right – see here. This is part of what I name the right-wing two step of American politics, rooted in the war complex and militarism, and with the imperial authoritarian party (misnamed conservative) always bellowing to the right (consider the bomb Iran crescendo…). As President, Obama has proven his toughness with Bin Laden. But the murder of innocents proves no toughness, harms the United States, and corrupts the head of the Empire (it is perhaps not avoidable to be the titular head of a trillion dollar military-industrial-Congress-media-intelligence complex with 1280 bases abroad and not be corrupted).

Only Americans are temporarily fooled as also in the case of torturer elite (Obama has made himself accomplice to the war crimes – by international and American law – see here – of Bush, Cheney, Rice et al) and the continuing criminality of bankers (faking LIBOR rates, however, is finally, perhaps, inviting some prosecutions).

But no one else is fooled.

The many friends and relatives of the 100 people blown up by drone at a wedding party in Yemen – and many who hear about it – know who to blame.

Obama recognizes some problems. He has taken to having Tuesday afternoon meetings to decide personally on who will be murdered. Possibilities are offered by the “priestly” John Brennan – a former torturer under Bush – on baseball cards. The Times was given that story by Obama, once again, to prove Obama’s toughness as opposed to Romney (this isn’t hard; Romney and my student Condi Rice are vapid sound-offs – Condi is, in addition, a war criminal, Romney still a want-to-be). One cannot help but feel here a touch of Gyges.

For as I said in a recent post here, Gyges finds the ring on the hand of a naked corpse in a Trojan Horse. The horse deceived Troy, but the thought that arises here is: what about the deceivers? What did their conquest win them, Odysseus on his long, mad quest to come home, and the others?

In Homer, warriors on both sides die. They all descend to become naked corpses with perhaps a ring on their finger…

And how does the ring of invisibility dress up a corpse?**

Gyges eventually become the tyrant in Lydia. How many tyrants fare well as Plato sees them? Plato’s (in this case but not always or simply Socrates’s) vision is that a tyrant is not happy – is always plotting, fearing sudden death, cutting off others, turning his ring ceaselessly to command obsequious priests, advisers, professors and reporters, never able to sleep peacefully…

Is it simply good for Barack to choose the baseball cards, limiting the killing? Now Romney, his possible successor, is already crazy, a man without a conscience, that is, a man who would do or say anything to gain power (being a religious leader does not mean one knows right from wrong or has a stopping point…).

But the danger to Barack’s psyche in what is described so sycophantically in the Times piece on the Tuesday meetings here is clear enough (Scott Shane was a co-author). Can Obama now (even in a second term) turn away?

One may hope that those who have suffered from American power and American drones distinguish ordinary Americans from their leaders. But the outliers won’t.

Unjust killings – murders – breed the desire for revenge. They do not stem the killing; they invite more killing (and by the by, strengthen American militarism as a continuing and self-destructive force).

As opposed to taking out Bin Laden, something done carefully, without murder of civilians and not done by drone, Obama and his coterie (the neo-neo cons) are wrong that this new kind of war makes America safer. It does not.

***

“NEWS ANALYSIS
The Moral Case for Drones
http://www.nytimes.com/2012/07/15/sunday-review/the-moral-case-for-drones.html?_r=1&ref=opinion

By SCOTT SHANE
Published: July 14, 2012
Washington

FOR streamlined, unmanned aircraft, drones carry a lot of baggage these days, along with their Hellfire missiles. Some people find the very notion of killer robots deeply disturbing. Their lethal operations inside sovereign countries that are not at war with the United States raise contentious legal questions. They have become a radicalizing force in some Muslim countries. And proliferation will inevitably put them in the hands of odious regimes.

But most critics of the Obama administration’s aggressive use of drones for targeted killing have focused on evidence that they are unintentionally killing innocent civilians. From the desolate tribal regions of Pakistan have come heartbreaking tales of families wiped out by mistake and of children as collateral damage in the campaign against Al Qaeda. And there are serious questions about whether American officials have understated civilian deaths.

So it may be a surprise to find that some moral philosophers, political scientists and weapons specialists believe armed, unmanned aircraft offer marked moral advantages over almost any other tool of warfare.

“I had ethical doubts and concerns when I started looking into this,” said Bradley J. Strawser, a former Air Force officer and an assistant professor of philosophy at the Naval Postgraduate School. But after a concentrated study of remotely piloted vehicles, he said, he concluded that using them to go after terrorists not only was ethically permissible but also might be ethically obligatory, because of their advantages in identifying targets and striking with precision.

“You have to start by asking, as for any military action, is the cause just?” Mr. Strawser said. But for extremists who are indeed plotting violence against innocents, he said, “all the evidence we have so far suggests that drones do better at both identifying the terrorist and avoiding collateral damage than anything else we have.”

Since drone operators can view a target for hours or days in advance of a strike, they can identify terrorists more accurately than ground troops or conventional pilots. They are able to time a strike when innocents are not nearby and can even divert a missile after firing if, say, a child wanders into range.

Clearly, those advantages have not always been used competently or humanely; like any other weapon, armed drones can be used recklessly or on the basis of flawed intelligence. If an operator targets the wrong house, innocents will die.

Moreover, any analysis of actual results from the Central Intelligence Agency’s strikes in Pakistan, which has become the world’s unwilling test ground for the new weapon [a circumlocution for American aggression against Pakistanis], is hampered by secrecy and wildly varying casualty reports. But one rough comparison has found that even if the highest estimates of collateral deaths are accurate, the drones kill fewer civilians than other modes of warfare.

AVERY PLAW, a political scientist at the University of Massachusetts, put the C.I.A. drone record in Pakistan up against the ratio of combatant deaths to civilian deaths in other settings. Mr. Plaw considered four studies of drone deaths in Pakistan that estimated the proportion of civilian victims at 4 percent, 6 percent, 17 percent and 20 percent respectively.[the Pakistan government says the rate is 600 civilians for 1 terrorist – but of course, why should their studies count…]

But even the high-end count of 20 percent was considerably lower than the rate in other settings, he found. When the Pakistani Army went after militants in the tribal area on the ground, civilians were 46 percent of those killed. In Israel’s targeted killings of militants from Hamas and other groups, using a range of weapons from bombs to missile strikes, the collateral death rate was 41 percent, according to an Israeli human rights group.

In conventional military conflicts over the last two decades, he found that estimates of civilian deaths ranged from about 33 percent to more than 80 percent of all deaths.Mr. Plaw acknowledged the limitations of such comparisons, which mix different kinds of warfare. But he concluded, “A fair-minded evaluation of the best data we have available suggests that the drone program compares favorably with similar operations and contemporary armed conflict more generally.”

By the count of the Bureau of Investigative Journalism in London, which has done perhaps the most detailed and skeptical study of the strikes, the C.I.A. operators are improving their performance. The bureau has documented a notable drop in the civilian proportion of drone casualties, to 16 percent of those killed in 2011 from 28 percent in 2008. This year, by the bureau’s count, just three of the 152 people killed in drone strikes through July 7 were civilians.

The drone’s promise of precision killing and perfect safety for operators is so seductive, in fact, that some scholars have raised a different moral question: Do drones threaten to lower the threshold for lethal violence?

“In the just-war tradition, there’s the notion that you only wage war as a last resort,” said Daniel R. Brunstetter, a political scientist at the University of California at Irvine who fears that drones are becoming “a default strategy to be used almost anywhere.”

With hundreds of terrorist suspects killed under President Obama and just one taken into custody overseas, some question whether drones have become not a more precise alternative to bombing but a convenient substitute for capture. If so, drones may actually be encouraging unnecessary killing.

Few imagined such debates in 2000, when American security officials first began to think about arming the Predator surveillance drone, with which they had spotted Osama bin Laden at his Afghanistan base, said Henry A. Crumpton, then deputy chief of the C.I.A.’s counterterrorism center, who tells the story in his recent memoir, “The Art of Intelligence.”

“We never said, ‘Let’s build a more humane weapon,’ ” Mr. Crumpton said. “We said, ‘Let’s be as precise as possible, because that’s our mission — to kill Bin Laden and the people right around him.’ ”

Since then, Mr. Crumpton said, the drone war has prompted an intense focus on civilian casualties, which in a YouTube world have become harder to hide. He argues that technological change is producing a growing intolerance for the routine slaughter of earlier wars.

“Look at the firebombing of Dresden, and compare what we’re doing today,” Mr. Crumpton said. “The public’s expectations have been raised dramatically around the world, and that’s good news.”

Scott Shane is a national security reporter for The New York Times.

A version of this news analysis appeared in print on July 15, 2012, on page SR4 of the New York edition with the headline: The Moral Case For Drones.”

***

From: “Maxwell, David COL RET”
Date: July 15, 2012 10:01:10 EDT
To: David Maxwell
Subject: The Moral Case for Drones

I still think the issue is not the weapon system or the platform. It is the decision making process and authorities that should be examined. Why have we never talked about Hellfire missiles delivered by manned Apache helicopters? Or any other weapons systems from a sniper rifle to a B-52? Is it more precise and minimize collateral damage (I think sniper shots and capture and arrests problem result in even less collateral damage if we are going to make those comparisons)

Yes there are issues with the “seductiveness” of drones, perhaps seeming to make the decision to use them more attractive because of the less risk to US personnel since it is unmanned but that “seductiveness” impacts the decision making process and authorities. The drone itself is amoral. Sure the case can be made that a drone could lower the threshold of lethal violence. But that is not the drone’s fault. The responsibility lies with those who chose to employ these weapons systems. Morality rests with men and women making the decisions.

Yes there are many issues that will need to be examined and debated particularly if there is a move toward autonomous decision making for employment of weapons but the decision to use such systems is what needs to be examined. It should not be about the platform but about the people making decisions.

Our research scientists and the defense industry are going to keep developing new capabilities for us to employ against our enemies in more efficient and effective ways. But the moral dilemmas for employment remain the same as at the time of Socrates, Plato, Augustine and Aquinas. Again, we need to focus on moral decision making of leaders and not the morality or immorality of platforms because as I said such platforms are amoral.

But I think one of the most important questions is in the first paragraph regarding employment of US lethal operations within sovereign nations with whom we are not at war. This is a question that is going to haunt the debate for years to come. The question of respect for sovereignty is something that is going to need to be thought through.

On the one hand we should not be distracted by drones and focus on their employment. On the other hand drones are providing the catalyst and opportunity to examine the moral dilemmas of modern war. But in the end those dilemmas still rest on the moral dilemmas man has faced throughout history.

***

“July 22, 2012, 5:15 PM
The Moral Hazard of Drones
By JOHN KAAG and SARAH KREPS

The Stone is a forum for contemporary philosophers on issues both timely and timeless.

As the debate on the morality of the United States’ use of unmanned aerial vehicles (“U.A.V.’s,” also known as drones) has intensified in recent weeks, several news and opinion articles have appeared in the media. Two, in particular, both published this month, reflect the current ethical divide on the issue. A feature article in Esquire by

Tom Junod censured the “Lethal Presidency of Barack Obama” for the administration’s policy of targeted killings of suspected militants; another, “The Moral Case for Drones,” a news analysis by The Times’ Scott Shane, gathered opinions from experts that implicitly commended the administration for replacing Dresden-style strategic bombing with highly precise attacks that minimize collateral damage.

To say that we can target individuals without incurring troop casualties does not imply that we ought to.

Amid this discussion, we suggest that an allegory might be helpful to illustrate some of the many moral perils of drone use that have been overlooked. It shows that our attempts to avoid obvious ethical pitfalls of actions like firebombing may leave us vulnerable to other, more subtle, moral dangers.

While drones have become the weapons of our age, the moral dilemma that drone warfare presents is not new. In fact, it is very, very old:

Once upon a time, in a quiet corner of the Middle East, there lived a shepherd named Gyges. Despite the hardships in his life Gyges was relatively satisfied with his meager existence. Then, one day, buried in a nearby cave, he found a ring.

This was no ordinary ring; it rendered its wearer invisible. With this new power, Gyges became increasingly dissatisfied with his simple life. Before long, he seduced the queen of the land and began to plot the overthrow of her husband. One evening, Gyges placed the ring on his finger, sneaked into the royal palace, and murdered the king.

In his “Republic,” Plato recounts this tale, but does not tell us the details of the murder. Still, we can rest assured that, like any violent death, it was not a pleasant affair. However, the story ends well, at least for Gyges. He marries the queen and assumes the position of king.

This story, which is as old as Western ethics itself, is meant to elicit a particular moral response from us: disgust. So why do we find Plato’s story so appalling?

Maybe it’s the way that the story replaces moral justification with practical efficiency: Gyges’ being able to commit murder without getting caught, without any real difficulty, does not mean he is justified in doing so. (Expediency is not necessarily a virtue.)

Maybe it’s the way that Gyges’ ring obscures his moral culpability: it’s difficult to blame a person you can’t see, and even harder to bring them to justice.

Maybe it’s that Gyges is successful in his plot: a wicked act not only goes unpunished, but is rewarded.

Maybe it’s the nagging sense that any kingdom based on such deception could not be a just one: what else might happen in such a kingdom under the cover of darkness?

Our disgust with Gyges could be traced to any one of these concerns, or to all of them.”

***

And last, a note from Coleen Rowley who, as an FBI officer, observed Arabs who wanted to learn to fly but not to land in Minnesota before 9/11 and tried, fruitlessly, to get the word to Condi Rice…There is a banality to murder and doing corrupt things here (more than Eichmann, it seems) which seems to overshadow even evil:

“Thank you, Dr. Gilbert!   Very good dissection of where these bullying, hypocritical liberal law professors went wrong.  Koh joined Yoo’s and others’ Lawfare Club legalizing the illegal whether he realized it or not.  When I think back to listening to Univ of Iowa international law prof Burns Weston (now Emeritus) expound on international law in 1978-1979 from the text book he co-wrote with Richard Falk and then spotted his signature all these years later on the shallow petition in support of Koh and Koh’s actions promoting targeted killing on a global battlefield, it sickened me.  In my opinion this is the true banality of evil, with emphasis on the banality.

Coleen R.”


 On April 21, 2015, international lawyer and professor of law Mary Ellen O’Connell authored the following response to Philip Alston’s essay, “Harold Koh and the Battle of the Dueling Petitions”:

I very much appreciated Professor Alston’s comment on the controversy at NYU over the appointment of Harold Koh as a distinguished professor of human rights. Prof. Alston’s final observation is especially apposite: “When students seek to speak “truth to power” the appropriate response is … to engage on the merits of the “truths” they claim to put forward.” The concerned students organized an impressive opportunity for engagement last evening at the law school. I was invited to explain the law prohibiting targeted killing with military force beyond armed conflict zones—the issue at the heart of their concerns. Despite ample advance notice, no critic of the student letter came to defend Professor Koh’s public position that such killing is lawful. Nevertheless, we had a rich discussion not only on international law, morality, and security, but, more importantly, on how movements can transform a nation, recalling student initiated movements against the Vietnam War and racial segregation in the United States. I left with renewed admiration for the law students of NYU and the organizers of the event in particular.

Mary Ellen O’Connell
Robert and Marion Short Professor of Law
University of Notre Dame
Senior Fellow, Center of Theological Inquiry, Princeton (2014-2015)

_____________________________________________________________________________________________________________________

On April 12, 2015, the student-organizers of the Statement of No Confidence in Harold Koh drafted the following letter in response to faculty intimidation:

To Our Classmates and Members of the NYU Community:

“We do not kill our cattle the way the US is killing humans in Waziristan with drones.”      – Rafiq ur Rehman

In the fall of 2013, Rafiq ur Rehman traveled with his 13-year-old son, Zubair, and 9-year-old daughter, Nabila, from their small village in North Waziristan to Capitol Hill. Their purpose in making this long and painful trek was simple: to appeal to the hearts of U.S. lawmakers by sharing stories of the carnage wrought upon their community and upon their family by U.S. drone strikes. In 2012, a U.S. drone strike had killed Rafiq’s elderly mother and severely wounded two of his young children.

Only five members of Congress showed up.

The suffering of thousands of individuals like Rafiq, Zubair, and Nabila, moved a few of us to author a Statement of No Confidence in Harold H. Koh. The Statement is fairly simple. It argues that due to Mr. Koh’s role as a key legal architect of the Obama administration’s targeted killing program, a program that violates International Human Rights Law, the Law School should not have hired him to teach that particular body of law. The petition extensively documents the factual basis for our position—and echoes the concerns of other students, academics, and human rights activists.

The gravity of targeted killings via drones and the factual basis upon which we built our petition warranted this expression of disaffection. Academic institutions, after all, are supposed to be places for honest and critical debates. At times, we have known NYU Law to be such a place—that is, a setting where compassionate and thoughtful people confront, rather than dismiss uncomfortable facts.

While we welcomed disagreement with the petition, we never fathomed that some faculty and administrators would, intentionally or not, work hard to quash our expression of dissent and intimidate numerous students. Professor Ryan Goodman, for instance, emailed every individual signatory of the petition, including some of his own students and advisees, and urged them to withdraw their support for the Statement. Withdrawal, he stated, “will reflect well on us as a community” [Goodman Letter].  Due to the power imbalances between students and faculty, we find his request inappropriate.

Stephen Bright, meanwhile, a Yale Law professor and known anti-death penalty lawyer, sent a disparaging email to his former intern, an organizer of the petition and an aspiring anti-death penalty lawyer, following repeated phone calls. He asked her whether she didn’t have better things to do with her time, and later claimed that the petition arose out of ignorance and inexperience. Concerning our corporate colleagues who signed the petition, Mr. Bright asked, “Does someone who is going to a firm to make hundreds of thousands of dollars a year representing corporations [have] any position to express a lack of confidence in Harold Koh?” [Bright Letter] Finally, another student was told that s/he was not welcome at Human Rights First for an internship since the organization held Harold Koh in high regard and was aware of the student’s signature on the petition.[1]

Rather than a trial of the Obama administration’s targeted killing program, and the distortion of Human Rights Law that it represents, what we have seen unfolding over the past few weeks is the trial of students, mostly women and students of color, who have been dismissed as “naïve” and maligned as “smearers.” There has been no acknowledgement of the concern for human life that prompted the petition, or any acknowledgement that the more than 260 supporters of the students’ Statement include lawyers, students, scholars and pacifists from all over the globe.

Figuring prominently in this trial is Dean Trevor Morrison, who preemptively announced his verdict prior to meeting with the authors of the recent CoLR Statement: “[allegations of intimidation] are unfounded.” Ironically, the Dean himself, in his first-year constitutional law class, had described the petition as “smear,” “wholly inaccurate” and, once again, urged students to withhold support. Two of his students did, in fact, withdraw their signatures from the petition despite privately expressing agreement with its merits.

Soon after, the Dean initiated a meeting with the organizers of the petition, ostensibly for the purpose of making our upcoming event “productive.” In the process, he called our public letters “vitriol unseen in the law school” and accused us of “inflicting wounds that will not heal.” His words, uttered to three students of color, two of whom are of South Asian descent, revealed a painful truth: the wounds inflicted upon the egos of the powerful are recognized and defended, while the wounds of Rafiq, Zubair, Nabila and thousands of unnamed others fail to register—not in our university discourse or in the government’s civilian casualty count. This, more than anything else, illustrates what this petition aims to counter and why it is so important.

For all that has been said by some members of the faculty and administration, we have been saddened by the silences prevailing in their responses. None of the thousands of people assassinated by U.S. drones are mentioned—not once. There has been no questioning of the “Drone War’s” legitimacy or meaningful engagement with our concern that Mr. Koh did in fact provide the legal rationale and cover for this program. There has been no reflection upon the relationship between state-sponsored violence abroad and state-sponsored violence here at home, in places like Ferguson, North Charleston, and New York. And there has been little concern with human rights becoming a field that legitimizes U.S. global hegemony by masking its questionable interference in the social and political structures of other nations.

Indeed, the silences do not stop there. Neither the facts nor the sources that we extensively cite and upon which we base our critique, were genuinely examined. Rather, they were largely dismissed. Meanwhile, we have been accused of leveling attacks that are not “evidence-based” and of launching nothing more than a “smear” campaign. We wonder: if we have gotten the facts wrong about Mr. Koh’s well-documented role in shaping and defending the U.S. government’s targeted killing program, why haven’t the true facts surfaced? Why are we asked to blindly take the word of his friends, who speak of past actions that have no bearing on his role in this particular violation?

We have sought to understand the troubling responses that we have received from some faculty and administrators. It occurs to us that those in government who defend drone attacks in Pakistan, Yemen, Somalia, and now the Philippines, or who justify wars whether in Iraq or Libya, expect to waltz comfortably through the revolving door from government back into the academy, while demanding silence concerning these crimes.

We desire to break these silences in order to demand accountability and to express our outrage with the devaluation of human life that the U.S. extrajudicial killing program reflects.

The Undersigned,

[1] For these reasons, the names of NYU Law student signatories have been made temporarily unavailable for public viewing.

*                    *                    *

On March 10, 2015, the student-organizers released the following statement:

To The Members of The NYU Law Community:

As the Statement of No Confidence in Harold Koh makes clear, U.S. drones have claimed thousands of lives across the globe. We reiterate the fundamental point that lies at the heart of our petition: the U.S. government’s extrajudicial killing program, for which Mr. Koh was a key legal architect and advocate, is immoral and violates the applicable international human rights and humanitarian laws governing the use of lethal force.

In light of the profound human costs that the drone program has exacted, we find it regrettable that Professor Posner mischaracterizes our petition and dismisses the serious concerns raised therein. Nowhere in the petition do we argue that there are no circumstances under which drones can be lawfully deployed. Rather, we expressly state that our concern is with the U.S. drone program’s profound human costs and with its illegality under international human rights and humanitarian law. There is powerful objective evidence to which we cite in support of our critique, which Professor Posner entirely fails to address (See Posner Letter).

We disagree with Professor Posner’s belief that “we need more Harold Koh’s in government, not fewer.” Rather, we believe that we need more principled people in government. We need people who will not advocate, as Mr. Koh has, the position that “[J]ustice for enemies ‘can be delivered through trials. Drones can also deliver.’” We need people in government who won’t make paternalistic and Orientalist generalizations about Middle Easterners by calling the U.S. diplomatic withdrawal from the Middle East in 2001 “akin to removing adult supervision from a playground populated by warring switchblade gangs.” Koh, On American Exceptionalism, 55 Stan. L. Rev. 1479, 1490-91 (2003). We need people in government who are principled enough to resign when the government it serves pursues an immoral and illegal path that jeopardizes innocent lives, rather than defend this pursuit. We need human rights lawyers in government who will refuse to sit behind a desk and make decisions based on questionable U.S. intelligence about who lives and who dies, and then compare such decisions to the law school admission process.

It has not escaped our attention that Mr. Koh is regarded as one of the most respected and powerful international lawyers of our time. This does not deter us from our commitment to holding accountable members of our community who, like Mr. Koh, seem to have traded fealty to international law for a “ringside seat” at the table, at the cost of thousands of lives.

The costs of remaining silent are simply too high.

We live in a time when the state-sanctioned murder of black, brown and poor people within and outside of our borders is normalized. Unfortunately, even the most prominent and well- respected lawyers in the fields of international law and human rights have contributed to this normalization by shielding the architects of these policies from accountability and thereby defending the powerful against the powerless. We need to be courageous enough to say, “No more.”

For these reasons, we urge students, faculty, staff, and community members to continue raising their voices to protest NYU Law’s hiring of Harold Koh as a professor of International Human Rights Law.

The Undersigned,

___________________________________________________________________________________________________________

On April 3, 2015, the Coalition on Law and Representation (CoLR), an NYU Law student group whose mission is to push for faculty diversity within the law school, released a public letter which condemns the repression that NYU law students have been facing in connection with their support for the Statement of No Confidence in Harold Koh. Their statement is included below.

Fellow Students,

Greetings and Happy holidays. We write to address the recent suppression of student voices by members of the faculty. About a month ago, several of our peers wrote a statement criticizing the decision to bring Harold Koh into our NYU Law family. In the finest tradition of student engagement, our peers asked if other students would voice support, and some did. Professors quickly responded.

One response was submitted publicly to the student body, and disagreed with the statement’s arguments on the merits. This response added to the public debate on hiring Harold Koh, and was exactly the kind of response that contributes to a more informed dialogue. However, this was not the only response.

Dissenting students received other emails. A number of faculty members sent private email messages to every student who signed the letter of concern regarding Mr. Koh, asking them to withdraw her or his support. Some students received more than one email.

Students have received emails from their current professors. Students have received emails from professors who manage programs in which those students are currently participating. Students have received emails from professors currently serving as their advisors or job references. Students have received emails from professors who head the students’ scholarship programs. Students have received emails from professors at other universities.

All of these emails shared a theme: signatories, withdraw your support, and, students, you must not speak out. No voice. No loyalty. Just exit.

We are troubled by the faculty’s tactics because they worked.  We spoke with students who withdrew or withheld their support not because they disagreed with the statement, but because they were concerned with reprisal.  At least one prominent faculty member has repeatedly denounced the petition to his class, leveraging his authority as a leader and a professor to silence the issue in exactly the environment in which it should be freely discussed.

In offering this statement, we take no position on Harold Koh or his employment at NYU. We take no stand on our national security policy. We offer this statement in support of student voices.

Student voices must be fostered, bolstered, and heard.  We are, after all, training to be advocates. We cannot stand by while the faculty of this institution and others silence dissenting student voices. We find these actions inappropriate, and we find their chilling effect worrisome.

We also think the presence of robust, structured engagement of diverse student opinion regarding potential faculty members or guests prior to their appointment would help to direct student and faculty differences through less personal channels.

Fellow students, we encourage you to remain engaged, to continue sharing your affirmative or dissenting opinions. We encourage you to continue speaking. This is what our profession calls us to do.

In solidarity,

The CoLR Leadership Collective

Gilbert

On May 13, 2015, professor of international studies at the University of Denver, Alan Gilbert, published “Letters from Richard Falk, Greg Stanton, Angela Keaton, and Coleen Rowley on Koh and drones”: For my initial piece on “Law School profs whiff on student protest: Harold Koh and the immunization of war crimes,” see here. *** Richard Falk is … Continue reading Gilbert

O’Connell

On April 21, 2015, international lawyer and professor of law Mary Ellen O’Connell authored the following response to Philip Alston’s essay, “Harold Koh and the Battle of the Dueling Petitions”: I very much appreciated Professor Alston’s comment on the controversy at NYU over the appointment of Harold Koh as a distinguished professor of human rights. … Continue reading O’Connell

We Respond

On April 12, 2015, the student-organizers of the Statement of No Confidence in Harold Koh drafted the following letter in response to faculty intimidation: To Our Classmates and Members of the NYU Community: “We do not kill our cattle the way the US is killing humans in Waziristan with drones.”      – Rafiq ur Rehman In … Continue reading We Respond

CoLR

On April 3, 2015, the Coalition on Law and Representation (CoLR), an NYU Law student group whose mission is to push for faculty diversity within the law school, released a public letter which condemns the repression that NYU law students have been facing in connection with their support for the Statement of No Confidence in … Continue reading CoLR