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Legal Commentary

: Balkinization

To Whom is a Drone Loyal?

By Jack M. Balkin

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In my west coast copy of the New York Times today, two stories are side-by-side: one on disagreements within the Obama Administration about Afghanistan, and one titled

?U.S. Drone Strikes Office of Sunni Party In Iraq?s North.? These stories are related, for the politics of war, necessarily at issue in presidential decisionmaking about Afghanistan, are affected by the technologies of warfare. Drones are a technological step that further isolates the American people from military action, undermining political checks on contemporary warfare. And the isolation of the people, historians of war have argued, helps enable on-going, endless war.

When contemplating the scope and limits of presidential war power, constitutional scholars tend to focus on the relationship between the branches and the impact of public opinion. But the existence of drones, the reliance on private contractors, and the absence of a draft are part of a shift in the political structure of American warfare, enabling presidential power.

The role of drones might cause us to believe that an inevitable march of technology, together with strategies of contemporary warfare, have led to the disconnect between most Americans and the wars their nation is engaged in. But military historian Adrien Lewis suggests that these developments were not at all inevitable, and that a fundamental shift in the political structure of American warmaking has occurred since Vietnam, resulting in an isolation of the people from their wars.

Continue reading below the fold.

Lewis makes this argument in The American Culture of War: The History of U.S. Military Force form World War II to Operation Iraqi Freedom (2007). For Lewis, a loosening of the ties between the people and their government?s use of force begins with the demise of the citizen-soldier after Vietnam. The turn to all-volunteer forces, and now mercenaries (private contractors), effectively removes the American people from war. Americans became ?disconnected from the wars the United States was fighting.?

In reaction to opposition to the war in Vietnam, ?the armed forces developed doctrines for war that endeavored to mitigate or eliminate the need for the support of the people. In short, they sought a way to fight a war that was not dependent on the will of the people.? This involved a greater reliance on air power rather than land forces, and an increasing use of high tech warfare.

Taking the American people out of war gave presidents ?greater freedom to go to war, [and] the White House and the Pentagon greater freedom to fight wars as they saw fit.?

In Iraq and Afghanistan, American warfare is sometimes waged by machines. This raises questions about the morality of war, when an attack can occur with only one side?s mortality at risk. It also raises questions about political constraints on warfare. We need not peer into a future in which machines of warfare are more self-motivating than they already are. When, at another point on the globe, people are killed by an object that has its origins in the United States, but in its nature can owe allegiance to no one, we should ask where the people are in this war, and in their absence from the battle zone, how might they reassert their voice as a check on executive war power.

Full post as published by Balkinization on September 27, 2009 (boomark / email).