Charles Dunlap on Why Drones Should Be Part of the US Military Response

When U.S. intelligence went through the wealth of information uncovered in the military action against Osama Bin Laden, one point kept recurring as keeping Bin Laden and al Qaeda on the defensive.

"It wasn't the Pakistani army, it wasn't US boots on the ground," said Duke Law Professor Charles Dunlap. "It was American drones.  They were killing his second-in-commands faster than he could replace them."

Speaking at a lunchtime lecture at the law school Thursday, Dunlap, a retired Air Force major general and former USAF deputy judge advocate general, made the case for continued use of the controversial armed drone program, saying, it is "effective in suppressing terrorism."

"There are downsides," he told the audience of more than 100 students and faculty. "However, until someone shows me an alternative, I will continue to support them, not as the whole part of the fight against terrorism but as an important part of the answer. Some people … need to know they're being hunted mercilessly.  It keeps them on the defensive, planning how to protect themselves rather than how to kill others."

Drone use has its critics. Several charge drone use is unlawful under international humanitarian law, and in some cases amount to assassinations, which is illegal under domestic law as well.

But Dunlap said to date the program falls within domestic law, both in terms of the president's commander-in-chief wartime authority in Article II of the constitution, and – in non-combat situations – statutory authority granted by legislation. He added targeting specific armed combatants, such as the senior leadership of al Qaeda, is not covered by the policy prohibiting assassinations, noting the successful attack on the airplane carrying Japanese Adm. Isoroku Yamamoto in World War II as precedent. 

International law is more complicated, Dunlap said, but US policy for use of the drones in several points is more rigid that the international requirements, Dunlap said.  For example, international law merely requires a reasonable belief that terror target is present, whereas U.S. policy demands a near certainty," he said.

"US policy also insists on a near certainty that non-combatants will not be injured or killed, which international law does not.  I actually think this is a mistake. This policy encourages enemy to surround themselves with civilians."

And in fact, the number of civilians killed in drone attacks has declined as use of them has become more effective and the Obama administration imposed tighter rules and greater transparency, Dunlap said.

Other critics have suggested that use of the drones has damaged support for the United States among the populace in countries such as Yemen and Pakistan, where use of the drones is heaviest.  But Dunlap said there is no apparent correlation between casualties and public support.

Drones have scored significant military successes in a war where rolling back terror groups has been difficult. Dunlap cited several senior leaders of armed groups who have been killed, including the Islamist organizer of 2013 bloody attack on a Kenyan shopping mall. "I believe in the future you will see marriage of drones and facial recognition software. You'll see drones on battlefields hunting for specific people.  This will change the practice of war."

The talk was sponsored by the Federalist Society at the law school and by the Duke Bar Association.