By Rick Schmitt
From the Penn Law Journal Summer 2013 issue.
As a tool of warfare in the 12th Century, the crossbow stretched the established limits of armed conflict.
Devastatingly effective even at long distances, it could pierce the body armor of a knight at 200 yards, and compared with the English long bow, was easy to operate. Untrained soldiers and even peasants could master the craft in days or weeks.
In the stratified world of Medieval Europe, however, noblemen and the church saw the weapon as a threat. Pope Innocent II banned Christian-on-Christian use of the crossbow, calling it “the deadly art, hated by God.” A clause banishing “foreign crossbowmen” from England was included in the Magna Carta.
Today, technology continues to change the face of warfare, again testing legal and ethical boundaries.
Unmanned aerial drones have become central to the Obama Administration’s anti-terrorism policy. A new kind of Cold War has erupted in cyberspace, accounting for daily attacks on private and public networks around the globe, not to mention a story line in the latest James Bond thriller. Serious people are studying “human enhancement” technologies that use drugs and implantable devices to increase soldier performance.
But what are the legal and ethical considerations of conducting a war where the combatant is sitting at a desk in an office half a world from the battlefield? Is a safe and sterile war necessarily a just and ethical one?
When does a cyber attack constitute an act of war? Is it legal and ethical to respond with lethal force if the damage inflicted by such an attack is only economic?
When should the law of war, with its permission to kill, rather than capture, cede to the civil law that favors arrest and due process?
Such questions are all the more complex in a world where conventional ideas about the identity of the enemy and the contours of the battlefield have broken down.
A new institute at Penn Law School, the Center for Ethics and the Rule of Law, or CERL, seeks to address such questions, with an unusual interdisciplinary approach that brings legal academics together with philosophers, political scientists, economists, as well as practitioners such as military lawyers, journalists, members of the defense and intelligence communities, and public policy analysts.
Its director, Claire Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy, first conceived the new center while attending a 2010 legal conference at West Point, where she was struck by the diversity of opinion on anti-terror policies between civilian and military lawyers. She proposed a conference at Penn on the legal and ethical implications of the then-nascent idea of targeted killings.
That timely April 2011 conference – followed in a few short weeks by the successful operation targeting Osama bin Laden – led to a well-received book that Finkelstein co-edited and ultimately to the creation of CERL. Additional conferences on the topics of governmental secrecy, cyber war, the logic of deterrence, and the scope of executive privilege soon followed.
Today CERL is attracting attention as a unique endeavor among law schools: Its mission, Finkelstein explains, is “to promote rule of law values in the face of the changing nature of national security.” Such changes, including the rise of non-governmental combatants and new precision technologies, are posing new legal and ethical challenges and exposing gaps in the old rules of warfare.
CERL has attracted some influential and enthusiastic supporters, including William Craven, a Morristown, N.J., defense contractor who has worked on weapons and intelligence systems for the military, and his wife, Pam Craven L’77, the chief administrative officer of Avaya Corp., and member of the Penn Law board of overseers.
Craven said he has long seen a need for a top-rank institute that focused on the ethical and legal consequences of defense system advances. While hardly oblivious to ethical and legal concerns, he said, contractors tend to focus on performance issues and protecting the warfighter. “At the end of the day, you have questions of ethics in the back of your mind, but quite frankly, you go about doing your job and assume others are worrying about these things,” Craven said, adding that “it was refreshing to find an academic who was talking to people in the field who were experiencing the fear and terror of war to understand their perspectives.”
While such debates have been around for about as long as there have been weapons systems, history suggests there are no easy solutions.
“Look at the development of nuclear weapons. It took us most of the late ‘40s, all the ‘50s, into the late 60s to develop Mutual Assured Destruction,” said James Cartwright, retired Vice Chairman of the Joint Chiefs of Staff, and former commander of the U.S. nuclear force, alluding to the doctrine that governed Cold War relations between the U.S. and the Soviet Union. “We ended up using them in Japan for what we thought was a morally appropriate purpose and even today the debate on what is acceptable and what is not and when would we use such a weapon is still going on.”
“We find ourselves in this quandary as we often do with disruptive technologies. ‘Where is this going? How would I start to set norms?’” said Cartwright, who was a featured speaker at the CERL roundtable on cyber war last fall. “My sense is that we are trying to figure out what is technically possible, and what is culturally and morally appropriate. The art of what is possible is still in the very early stages.”
One controversial trend has been the expanding role of executive discretion in the pursuit of national security goals, which Finkelstein sees as one of the most enduring post-9/11 challenges to the rule of law. Enhanced interrogation policies developed in the George W. Bush administration that declared both the Geneva Conventions and federal statutes obsolete as a limiting force on executive authority have also been offered by the Obama Administration to justify targeted killing. The legal underpinnings of these policies have been developed in classified memoranda that find their way to the public through leaks, if at all.
“The reluctance of the executive branch to allow elected leaders, members of the judiciary, and ultimately the public, to subject war-related policies and their legal justifications to public scrutiny, represents a significant alteration of the terms of political engagement around military matters,” Finkelstein said. “It also signals a shift in the traditional conception of the balance of powers among the three branches of government. These trends are forcing academics and policy makers alike to return to fundamental questions about the value of transparency and public accountability in democratic politics.”
Finkelstein points out, however, that as a weapons system, there’s a lot to like about drones. They are more precise than traditional aerial bombs, better able to pinpoint targets, and therefore have the potential to dramatically reduce civilian casualties. Remotely operated drones also minimize U.S. casualties. A CBS News Poll found that 70 percent of Americans support using drones to kill suspected terrorists in foreign countries.
“You can loiter around for hours and hours whereas an F-16 cannot do that. It gives you more time to ensure that you have the intelligence right. You are more certain that what you have in the cross hairs is a bad guy,” said U.S. Army Brigadier General Tom Ayres L’91, the commander and chief judge of the U.S. Army Court of Criminal Appeals. “You often have better awareness on the part of the person who is going to make a decision.”
Ayres pointed out that the deployment of drones and the command decision to fire on a target are subject to rigorous standards. While the word drone might connote something that is making decisions without human input – the military prefers the term unmanned aerial vehicle – Ayres said the process is overseen by “someone trained in the law of war whose decisions are subject to review and ultimately to investigation if something goes wrong.”
Still, the growing use of technologies that increasingly remove humans from the battlefield is concerning to some experts. Finkelstein cites the story, popularized in a recent book, of a young Jewish orphan about to be shot by a Latvian SS unit during World War II who is pulled out of line and spared by a sympathetic Nazi commander after asking for a piece of bread. “The more distance, the less interaction; the less interaction, the weaker the tug of humanity that can, on occasion, lead to spontaneous acts of mercy,” Finkelstein said, noting that the use of drones preempt such opportunities.
Even more controversial is how the technology is being deployed, such as in the case of Anwar Al-Aulaqi, a senior operative of al Qaeda in the Arabian Peninsula (AQAP) who was targeted and killed in a U.S. drone attack in southeast Yemen in September 2011.
Al-Aulaqi was an American citizen who, while dubbed the “bin Laden of the Internet,” was not believed to be involved in an imminent attack against the U.S. He was also killed in a country that is considered outside the “zone of hostilities.”
“Here we have an American citizen, killed by our government without the opportunity for trial, in a country that, while certainly sympathetic with our enemies, was not part of the war zone,” Thomas Graham, retired U.S. diplomat and veteran arms-control negotiator, observed at the 2011 targeted-killings conference. “Is Yemen all that much different than Canada? Suppose it had been done there? … There has to be some deference paid to the fact that we do have a Constitution.”
Jens Ohlin, a law professor at Cornell, and a member of CERL’s advisory board, said that the presence of an al Qaeda branch in Yemen with an avowed intent of engaging Americans more than justified the invocation of war powers there.
He said it has never been the case that American citizens taking up arms against the U.S. get special treatment on the battlefield. Nazis with dual American and German citizenship were killed fighting in World War II, he said, and every Confederate soldier in the U.S. Civil War was “a prima facie American citizen” because the Union had never recognized the southern secession as legitimate.
Another board member, Kevin Govern, law professor at Ave Maria Law School, and a former Army Judge Advocate, said that Al-Aulaqi might be compared to Nazi propaganda chief Joseph Goebbels. “There is … precedent in the U.S. under national security law … that propagandists are continually contributing to the combat function,” extending wars by sending false signals and messages or through other acts of sedition, said Govern.
The legal and ethical landscape for cyber attacks is even more uncharted than that for targeted killing, even as they are becoming more ubiquitous. Earlier this year, the intelligence community ranked cyber at the forefront of global threats, ahead of terrorism, transnational organized crime and WMD proliferation.
The Pentagon now has an official cyber command, and is developing offensive and defensive cyber capabilities, using computer programs in ways previously reserved for bombs and other conventional weapons. In a celebrated case, President Obama, in his first months in office, accelerated a program begun during the Bush Administration of using a series of bugs to attack control systems for Iran’s nuclear program.
The military is also in the process of revising its official Rules of Engagement for when U.S. forces may deploy cyber force. But setting specific ground rules – such as deciding what kinds of attacks justify retaliation and against whom – will be hard.
While the economic costs of cyber attacks are huge – some $100 billion a year – no one so far has died from one. Knowing the enemy is also tough: adversaries are no longer strictly defined by their manufacturing heft and bomb-making prowess.
Some experts believe cyber weapons may be most effective as a tool to head off war. Historically, so-called soft-power tools, such as economic or trade sanctions, often take too long to have an impact. A cyber weapon, by contrast, could shut down a power grid or banking system in an instant.
“It is really that ability to undermine confidence which plays well into your ability to convince an adversary, ‘You do not want to go down this path,’” Cartwright said, adding that the preemptive nature of cyber is one of its “key opportunities.”
Some acceptable norms of behavior are starting to be identified. George Lucas, professor of philosophy and public policy at the Naval Postgraduate School, Monterey, Calif., has written that a cyber attack is morally justified when the underlying issue in conflict is so grave that war is justified, only military assets are targeted, and every effort short of war has been made to resolve the dispute.
“We have always been challenged by new developments – be it the crossbow or the drone – to do what lawyers and philosophers do, which is to extrapolate from the known to the unknown, to take what we know, to develop appropriate metaphors and similes that try to capture the essence of the new challenges and relate them to the things we know how to do,” Lucas said on a panel with Finkelstein at the University of Utah Law School in February on the ethics of technological warfare. “We are in the midst of that transformation with our new technologies. They do pose challenges to a state-centric system of law, to our conventional ways of thinking about combat, but they do not completely transform them and make it impossible for us to reason reasonably about them.”
Rick Schmitt has covered legal affairs for the Wall Street Journal and the Los Angeles Times. He is currently a freelance writer living in Maryland.