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Since September 11, the United States has waged two very open wars in Afghanistan and Iraq. These two wars have killed nearly 7,000 U.S. military personnel and left some 50,000 American troops wounded; they have also left an unknown number of Iraqi and Afghan soldiers and civilians dead or wounded. But alongside these two costly and visible wars, the United States has also been waging what amounts to a third war.

This third war is a secret war, waged mostly by drone strikes, though it has also involved a smaller number of special operations raids. The author calls this third war a secret war, because though its existence is widely known, it remains officially unacknowledged by the government of the United States: In court filings, for instance, the United States continues to state that it will neither confirm nor deny its involvement in drone strikes outside of traditional battlefields.

We do not know what this secret war has cost us in dollars, and we do not know its cost in human lives, either. Drone strikes are appealing to the United States for the obvious reason that the use of unmanned aerial vehicles creates no short-term risk to the U.S. personnel who operate them. On the ground, however, U.S. drone strikes are estimated to have killed some 3,000 to 4,000 people in at least three countries (Pakistan, Yemen and Somalia) and perhaps as many as half-a-dozen countries (including Mali, the Philippines, and perhaps Nigeria). For the most part, we do not know the identities of those killed by U.S. drone strikes, or the precise reasons they were targeted. We do not even know what percentage of the dead were specifically targeted, as opposed to those who simply became collateral damage in a U.S. strike aimed at someone else.

How should we evaluate this secret conflict, more than a decade after the September 11 attacks? There is a phrase that was coined by my friend and former professor, Harold Hongju Koh, former Dean of Yale Law School, and more recently the State Department’s Legal Advisor under President Obama. Harold Koh sometimes uses the term “lawful but awful,” though he does not apply that term to the drone war. In fact, Koh has been a staunch defender of the legal right of the administration to wage this particular secret war.

The author feels, however, this secret war fits squarely into in the “arguably lawful but nonetheless fairly awful” category. She states this for three very distinct reasons, although she feels they all overlap to some extent. First, this secret war is deeply offensive to core principles of American democracy, in particular to any notion of constitutional checks and balances. Second, it undermines core rule of law norms, internationally as well as domestically. And third, it is strategically misguided: At best, it is unhelpful; at worst, it is distinctly counterproductive.

Publication Citation

38 Harv. J.L. & Pub. Pol'y 233-250 (2014)