I think that’s wrong. As I have argued recently in the Harvard Journal of Law and Public Policy, substantive due process is as legitimate—indeed, as crucial—a part of our Constitution as the principle of, say, separation of powers. Note that the phrase “separation of powers” doesn’t appear in the Constitution; it’s an abstract principle one infers from the structure, ideas, and history of the document. The same is true of substantive due process.

Perhaps saddest of all, it often seems that the most vocal critics of substantive due process don’t even understand how the doctrine works in the first place. My point here is to explain briefly how the Constitution’s promise that “no person shall be deprived of life, liberty, or property without due process of law” means not only that government must take certain procedural steps (hearings, trials, and so forth) when it imposes a deprivation, but also that some acts are off limits for government, “regardless of the fairness of the procedures used to implement them.”

The confusion may be partly due to sloppy language. “Substantive due process” is an epithet, coined in the New Deal era by Progressive legal scholars who opposed the theory. The judges they attacked for embracing the doctrine—people like Justice Stephen J. Field—would not have recognized the term. They just called it “due process of law.” Also confusing is that lawyers today habitually refer to the “Due Process Clause,” leaving out the most important part of that clause: the phrase “of law.” The Constitution does not just guarantee “process”; it guarantees a process of law. To understand what “substantive due process” means—even if one rejects the idea—one must not forget that what this Clause promises is that government will accord us lawful treatment; that it will only take away life, liberty, or property, in accordance with principles of lawfulness. So our first step is to ask, what does it mean for government to pledge to deal with us in a lawful manner?

Law as the opposite of arbitrariness

What is “law”? Philosophers have debated this question for many years, and while they may disagree on certain points, some basic answers have emerged: law is the use of government’s coercive powers in the service of some general principle of the public good. Aristotle famously distinguished between lawless, corrupt regimes where the people were governed with “regard only [for] the interests of the rulers”—and lawful, healthy regimes “which have a regard to the common interest.” The former is governed by specific commands to particular persons to do particular things, or by actions that lack any general purpose, or only to the benefit those who wield power. They are “despotic”—more analogous to the rule of a master over a slave. Lawful regimes, by contrast, are characterized by general rules that govern for the benefit of all. Or, as a more recent authority, Cass Sunstein, has put it, “many of the most important clauses of the Constitution,” including the Due Process Clause, are “focused on a single underlying evil: the distribution of resources or opportunities to one group rather than another solely on the ground that those favored have exercised the raw political power to obtain what they want.” This is the distinction between “the rule of law and the rule of men.”

More basically, law is the opposite of arbitrariness; it is not the self-serving use of force by those who wield it. It is not ipse dixit—not merely that someone in power has said so. And this is both a substantive and a formal criterion: if government imposes a rule without following the procedures whereby a rule obtains its official character, the final product cannot be called law; likewise, when government imposes something that it calls legislation which is nevertheless arbitrary, self-serving, ipse dixit, that, too, cannot be called law, notwithstanding any procedural formalities. As Daniel Webster famously said in his argument in the 1819 Dartmouth College case, the promise of due process of law means

that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Every thing which may pass under the form of an enactment, is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees, and forfeitures, in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature.

More simply, due process of law means government may not limit our freedom without good reason. What qualifies as a “good reason” is a question answered by reference to political and legal principles. Not everything the legislature promulgates is, on that account, a good reason. According citizens due process of law means to treat them, not in accordance with whatever the majority happens to desire at any particular time, or to serve the ruler’s (or rulers’) self-interest. Thus the overlap of “procedure” and “substance” is inevitable: to be treated lawfully means to be treated in accordance (procedural) with general, public principles (substantive). Let me make this last point clearer.

The logic of substantive due process

Suppose Congress passed a bill—say, a new tax—which the President vetoes. Having been vetoed, that bill does not become not a law, for procedural reasons: the shortcoming that deprives it of status as law is entirely formal, not substantive. It doesn’t depend on the bill’s content, but on rules of promulgation. If the IRS were to try to enforce the tax by punishing someone who doesn’t pay it, the punishment would be unlawful because it is unauthorized: the IRS would be enforcing something that is not law, thus depriving the citizen of liberty without due process of law.

The same approach holds where a purported law fails for substantive, instead of procedural, reasons. Thus, imagine Congress were to pass a bill, and the President were to sign it, establishing an official religion for the United States. Since the First Amendment denies Congress power to make such a law, no matter what procedural steps it takes, the resulting statute would have no claim to status as law. And if the sheriff were to arrest a dissenter for violating it, he would be depriving that person of liberty without due process of law, just as in the first hypothetical. Here, the sheriff’s purported authority for arresting the citizen fails not because of any formal shortcomings, but because the substance of the purported law is such that it cannot claim the character of law.

These two examples are relatively easy because they rest on explicit constitutional limits on government power. But the same logic holds with regard to implicit or inherent limits on government power. These implicit limits have been the sources of the major battles over substantive due process. But even if one disagrees as to what those limits might be, the argument follows a plain logical form: if the legislature passes a statute that it lacks authority to make, that statute has no standing as law, and enforcing it would violate the citizen’s right not to be deprived of life, liberty, or property except by due process of law.

Implicit limits on lawmaking authority are commonplace. In Clinton v. City of New York, for example, the Supreme Court ruled that the Constitution does not allow Congress to give the president a line-item veto, even though it does not explicitly prohibit such a thing. The reason is that the Constitution sets forth in detail the procedure for making bills into laws, and “is silent on the subject” of alternative methods. This “constitutional silence” is “equivalent to an express prohibition.” Thus the Constitution implicitly bars Congress from devising different methods for making or vetoing laws.

If there are inherent restrictions on the procedures by which a bill can become a law, then there would seem no denying that there are also implicit limits on the content of laws that can be made. If law is the opposite of arbitrariness, then the legislature cannot get around the prohibition on arbitrariness by simply labeling an arbitrary act “law.”

Arbitrators and bank robbers

Are there implicit limits on the kinds of laws the legislature can pass? Consider—as the Founding Fathers often did—some analogies to contract law. In arbitration law, an arbitrator derives his authority from the contract between the parties, but that contract can limit the arbitrator’s authority either explicitly or implicitly. As the Seventh Circuit has observed:

A suit to throw out a labor arbitrator’s award is…a suit to enforce the labor contract that contained the clause authorizing the arbitration of disputes arising out of the contract…. [T]he plaintiff normally will be pointing to implicit or explicit limits that the contract places on the arbitrator’s authority—principally that he was to interpret the contract and not go off on a frolic of his own—and arguing that the arbitrator exceeded those limits.

An arbitration decision that exceeds the implicit limits of the contract is unauthorized and has no validity.

Or consider a bank guard. Classical liberals like the Framers envisioned government as akin to a guard: the people in society, anxious to protect their resources and freedoms, “hire” the government to protect them just as the owner of a bank would hire an armed guard. But while this may prevent robbery, the bank owner now has a new problem: he has allowed someone in his bank with a gun, and the guard might give in to temptation and rob the bank himself. What happens then?

Something very like this actually happened in Sunshine Security & Detective Agency v. Wells Fargo Armored Services Corp., a Florida case in which a bank contracted with a detective agency to provide a guard, who then conspired with third parties to rob the bank. The bank sued the detective agency on respondeat superior grounds, but the court rejected this argument because the guard’s actions were “[a] classic case of an employee acting outside the scope of his employment. The subject employee was hired…to guard the bank which he, in fact, conspired to rob. In this endeavor, we think the employee was plainly off on a frolic of his own, [and] was in no way furthering the interests of his employer.”

But notice: the guard’s employment contract almost certainly included no explicit prohibition on robbing the bank. (Who would think of such a thing?) Yet the court rightly concluded that such a prohibition was implicit in the employment contract: it arose from the logic of the contract itself. The whole point of hiring him was to ensure against robbery. So when the guard betrayed these purposes, he went beyond the scope of his legitimate authority—he acted ultra vires—beyond his powers.

Where do the inherent limits on government action come from? They lie in the word “law.” Law is the use of government power in the service of a rational, general, public principle. A government action that lacks these elements is not law; it's something else. As Randy Barnett put it in a different context, “the qualities must go in before the name ‘law’ goes on.” So a government action that does not serve a rational principle of the public good is not a law, and thus deprives persons of life, liberty, or property without due process of law.

The Constitution, too, is a law. Thus by promising that government will accord us due process of law, the Constitution not only blocks government from breaching the explicit boundaries on its authority, but also from violating inherent limits that arise from the logic of the constitutional “contract” itself. The Constitution is the employment contract by which government is hired to protect society’s bank from being robbed. Implicit in that contract is the principle that government may not rob the bank itself: may not violate individual rights, or act in its own self-interest, or serve those who have only exercised raw political power to obtain what they want. This is what Justice Samuel Chase meant when he wrote in 1798, in one of the classic statements of substantive due process, that “[t]here are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power,” such as if the legislature attempted to violate the rights “for the protection whereof the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact; cannot be considered a rightful exercise of legislative authority.” Or, as the Supreme Court explained almost a century later, “Arbitrary power…is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. [Enforcing] the limitations imposed by our constitutional law upon the action of the governments, both State and national…is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government.”

Procedural due process is a subset of substantive due process

Critics typically differentiate “substantive” from “procedural” due process, dismissing the former as philosophical hot air, and contending that the Constitution guarantees only procedural safeguards. But if I’m right that “due process of law” is best seen as a pledge against arbitrary or unauthorized government action, then these procedural aspects fit into a larger picture: they are a subset of the overall promise of lawful treatment. The modern, process-only interpretation of the Due Process Clause, by contrast, is unable to connect the procedural requirements with any deeper principle. Why accord people any procedural formalities unless we are committed to what Justice Thomas calls a “substantive guarantee against ‘unfairness’”? Without a substantive guarantee, a coin toss would suffice as a trial.

Indeed, unless it has some substantive fairness, a “trial” wouldn’t even be a trial; it would be something else. A lynch mob is generally seen as the opposite of procedural due process, but lynch mobs do abide by some rituals—often holding sham trials before imposing their predetermined verdict. The problem with lynch mobs isn’t the lack of procedure, but the fact that their “procedures” are not fair, general, or reasonable, and are thus substantively arbitrary. By contrast, a hearing that gives real effect to these substantive guarantees is still valid even if it fails to follow some typical procedural formality. Courts call this the harmless error rule, which “focus[es] on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” Procedural formalities are not alone sufficient to qualify a government act as law.

To put this point differently, legal procedures are themselves composed of substantive steps or rules. What from a distance appear to be procedural guarantees are, on close examination, actually clusters of substantive guarantees. One might think of a trial as a procedural right, but a trial is composed of certain substantive rights—the right to cross-examine witnesses, the right to be represented by an attorney, the right not to be compelled to testify against oneself. What’s more, the trial as a whole is one substantive element in the broader right to not be treated arbitrarily.

In short, it’s precisely because the Due Process Clause is a “repository of substantive guarantees against ‘unfairness,’” that we have interpreted it to require fair trials, among other things. If it didn’t guarantee against unfairness, then whatever protections it did provide would hardly be the protection of law. Citizens are entitled to procedures only because they are entitled to lawful treatment.

Two examples

I’ll close with two examples of substantive due process cases—neither of which use that term— Loan Association v. Topeka in 1876 and Lawrence v. Texas in 2003. In both cases, the Court had to decide whether the state was depriving people of property or liberty in a lawful way—that is, in the service of a general principle of public good—or whether it was depriving them of their rights in arbitrarily, without a good, public reason.

In Loan Association, the Court invalidated an attempt to take money from one group and give it to another, more politically influential group, for their own private benefit. This attempt to take with “one hand” the property of citizens and “with the other to bestow it upon favored individuals to aid private enterprises” was “none the less a robbery because it is done under the forms of law . . . . This is not legislation. It is a decree under legislative forms.” And if it is not legislation—if it is an arbitrary, unprincipled, self-serving exploitation of political power—then it takes property without due process of law. Likewise, in Lawrence, the state proscribed private, consensual, homosexual conduct, not to protect the general public from harm, but simply to impose a burden on a disfavored minority. The law at issue did not involve public conduct, or prostitution, or government benefits; it did not protect minors, or “persons who might be injured or coerced.” Instead, the law was what the late Prof. Peter Cicchino called “the legal enforcement of private bias, casting lawmaking as a kind of Nietzschean struggle of will, with various moral interest groups trying to gain legal enforcement of their beliefs without having to give reasons for those beliefs other than saying, ‘we believe it.’” Such an ipse dixit infringement on liberty—prohibiting private, consensual sexual activity just because the legislature wanted to—could not be characterized as due process of law.

Substantive due process makes sense: some things government does—arbitrary, irrational, self-serving exercises of political power—lack the elements that make a legislative pronouncement a “law.” These fail to fulfill the Constitution’s promise that the government will accord us due process of law. Deciding whether a challenged government act is or is not a law in this sense is fraught with normative considerations, of course, so it’s unsurprising that it would be the target of heated criticism. So, too, judges sometimes reach wrong decisions, here as in other things. But these critiques are equally true of principles like separation of powers, which also require judges to engage in complicated analyses and refer to normative and practical considerations outside the four corners of the Constitution. The task before lawyers and judges is to engage in such analyses, and lawyers are badly served by the contemporary fashion of ridiculing substantive due process, or dismissing normative deliberations as somehow not in our job description.

More War?

The rise of drone warfare has stirred strong passions and sparked a vigorous debate about the morality of unmanned weapons systems. The first and most important question is whether drone technology makes war more likely. Are decisionmakers more prone to employ military force if they have accurate weapons that are easier to use and do not risk the lives of their service members? The use of these weapons creates the false impression that war can be fought cheaply and at lower risk. They transform the very meaning of war from an act of national sacrifice and mobilization to a distant almost unnoticeable process of robotic strikes against a secretive "kill list." Do these factors lower the political threshold for going to war?

On the surface the question seems naïve. Political scientists argue that decisions about going to war are made on the basis of strategic necessity and perceived threats to security. The act of war is not determined by the type of weapon available. As the eminent political theorist Hans Morgenthau famously said, referring to nuclear weapons, people “do not fight because they have arms. They have arms because they deem it necessary to fight.”[5]

On the other hand, the availability of a particular class of weaponry can influence judgments on the likely costs and viability of military action. U.S. political leaders are able to imagine intervening militarily in other countries because they have advanced weapons systems designed for that purpose.[6] The possession of drone technology increases the temptation to intervene because it removes the risks associated with putting boots on the ground or bombing indiscriminately from the air. Drone systems are “seductive,” writes law professor Mary Ellen O’Connell, because they lower the political and psychological barriers to killing.[7] They induce a false faith in the efficacy and morality of armed attack that could create a greater readiness to use force.

A March 2011 report from the Development, Concepts and Doctrine Centre of the U.K. Ministry of Defence concluded that the availability of drone weapons was indeed a factor in the decision of British leaders to participate in military operations in Pakistan and Yemen. In its study the Center found that manned aircraft and commando raids could have been used for the selected missions but were rejected as too risky. The decision to use force was “totally a function of the existence of an unmanned capability—it is unlikely that a similar scale of force would be used if this capability were not available.” The report urged “removing some of the horror” of these weapons so that “we do not risk losing our controlling humanity and make war more likely.”[8]

A greater readiness to use force may also result from the physical and psychological distance that separates the launching of a strike from its bloody impact. Robotic technology removes the person from the emotional equation of war, reducing human targets to images on a computer screen. This has stretched to the maximum what writer P.W. Singer describes as the disconnection between war and society.[9] Scholar Mary Dudziak agrees, “Drones are a technological step that further isolates the American people from military action, undermining political checks.”[10] U.N. Special Rapporteur Philip Alston warns against “a ‘PlayStation’ mentality to killing” that may induce public callousness and susceptibility to claims about costless warfare.[11]

Any development that makes war appear to be easier or cheaper is deeply troubling. It reduces the political inhibitions against the use of deadly violence. It threatens to weaken the moral presumption against the use of force that is at the heart of the just war doctrine.

Victims

Claims about civilian casualties from drone strikes have been hotly contested. Senior White House counterterrorism adviser John Brennan asserted in June 2011 that for most of the previous year “there has not been a single collateral death” from drone strikes in Pakistan[12]—this despite press reports and complaints from Pakistani officials to the contrary. Precise information about civilian casualties is shrouded in secrecy, but a report from the Bureau of Investigative Journalism, an independent university-based non-profit in the U.K., sheds important light on the subject. The Bureau has developed the most comprehensive available data on U.S. drone strikes in Pakistan by compiling and painstakingly cross-checking available reports from media, government, and firsthand sources. Their figures show that civilian casualties occur in approximately one fifth of U.S. drone attacks in Pakistan. Since the drone war began in Pakistan in 2004, more than 2,300 people have been killed and at least 1,150 wounded in these strikes. The Bureau estimates that the dead could include as many as 780 civilians, including as many as 175 children.[13]

U.S. drone attacks in Pakistan are prone to special problems of human error. They rely on uncertain human intelligence from agents in the country’s rugged northwest territory. The local informants the U.S. depends upon in the region are “notoriously unreliable,” a former CIA officer told writer Jane Mayer.[14] They may have their own agendas for settling scores in local tribal vendettas.[15] In Afghanistan intelligence gathered in areas with a minimal presence of U.S. soldiers tends to be less reliable in distinguishing between combatants and noncombatants, resulting in a higher proportion of civilian casualties.[16]

Countering Terrorism?

Ethical questions about the use of drones concern not only the nature of the weapons but the policies they are meant to serve. The use of drone aircraft perpetuates the illusion that military force is an effective means of countering terrorism. We should know better by now. After ten years of combat in Afghanistan, the threat of terrorist attack and insurgent violence in the region remains as great as ever, with civilian casualties at their highest level since the U.N. began reporting such figures.[17]

No one denies the legitimacy of preventing terrorist attacks and suppressing the global threat from al Qaeda. The problem lies in the use of military force as the primary means of achieving that purpose. Terrorism is more a political and law enforcement challenge than a threat that can be addressed by military means. The RAND Corporation’s 2008 report How Terrorist Groups End shows that the primary factors accounting for the demise of 268 terrorist organizations over a nearly 40 year period were participation in political processes (43 percent) and effective policing (40 percent). Military force accounted for the end of terrorist groups in only 7 percent of the cases examined.[18]

The White House claims that drone strikes are aimed at al Qaeda, but most of the attacks in the region have killed low-level Taliban fighters. The Wall Street Journal reported in November 2011 that most CIA drone strikes in Pakistan are so-called "signature" strikes, which are directed at groups of lower-level operatives rather than specifically identified al Qaeda leaders.[19] A study by the New America Foundation found that fewer than 13 percent of strikes in Pakistan targeted al Qaeda. Of at least 1,400 militants killed, only 38 were identified as Taliban or al Qaeda leaders.[20] A Reuters report using government data found that CIA drone strikes since the summer of 2008 have killed far more low-level fighters than mid- to higher-level leaders.[21]

These findings alter the moral calculus of current policy and cast doubt on the claim that the drone war in the region is a just cause of strategic necessity. The Taliban insurgency differs significantly from al Qaeda. The Taliban is a locally grown, diverse network of Pashtun nationalists and dispossessed tribes seeking to remove foreign troops from their soil and control the Pashtun-majority parts of Afghanistan and Pakistan. Al Qaeda is an Arab-based extremist movement with a global agenda of attacking western targets. Unlike the militants of al Qaeda, the Pashtun fighters of the Taliban do not have a transnational agenda and have not engaged in attacks beyond South Asia. There is no recorded incident of an Afghan Talib participating in a terrorist attack outside tribal regions.[22] However repugnant Taliban ideology may be, the Pashtun insurgency does not pose a threat to the security of the United States sufficient to justify large-scale military action and drone warfare.[23]

The White House claims its policies are reducing the chances of another terrorist strike in the United States, but drone strikes are fomenting greater anti-American hatred and creating support for the very militant movements their proponents claim to be suppressing. Former Australian military officer and Pentagon adviser David Kilcullen testified before Congress in March 2009 that drone strikes arouse “a feeling of anger that coalesces the population around the extremists” who vow to fight against such attacks.[24] Drone attacks also may be motivating so-called "lone wolf" extremists who have attempted terrorist strikes in the United States. Faisal Shahzad, the Pakistani immigrant who failed in his attempt to bomb Times Square in 2010, testified that, “…until the hour the U.S. pulls it [sic] forces from Iraq and Afghanistan and stops the drone strikes in Somalia and Yemen and in Pakistan . . . we will be attacking [sic] U.S., and I plead guilty to that.”[25]

"Murder"

The moral basis of drone warfare is clouded further by the program’s secrecy and minimal public accountability. The Bush and Obama administrations have given authority for counterterrorism drone strikes to the CIA and the Pentagon’s Joint Special Operations Command, JSOC. The CIA has a horrific history of criminality and incompetence, as recounted in Tim Weiner’s magisterial A Legacy of Ashes. Human rights lawyer Scott Horton expresses concern that this “marks the first time in U.S. history that a state-of-the-art, cutting-edge weapons system has been placed in the hands of the CIA.”[26] JSOC and CIA drone programs operate largely without public review or restraint. The only form of legislative "oversight" is notification of strikes after the fact to a few members of congressional Armed Services and Intelligence committees.

In an interview with Newsweek’s Tara Mckelvey, the CIA’s former acting general counsel referred to his work with drone attacks as “murder.”[27] The UN Special Rapporteur has criticized the lack of international legal justification for drone warfare program as “a vaguely defined license to kill.”[28] Administration officials vehemently reject such claims, asserting that drone attacks comply with applicable laws of war, but the government refuses to address some of the most important legal issues involved.[29] It has not defined the scope of the war we claim to be fighting, the criteria for selecting individuals to be killed, or the safeguards and accountability mechanisms for preventing abuse.

The Obama administration may be taking a more aggressive stance toward killing alleged terrorists because of the political and legal difficulties of detaining and trying such suspects in the United States. According to American University’s Kenneth Anderson, “there is less reason to seek to capture rather than kill. And if one intends to kill, the incentive is to do so from a standoff position because it removes potentially messy questions of surrender.”[30]

Conclusion

The United States is increasing its commitment to drone warfare without regard for the risks these weapons pose to our security and moral standing in the world. Drone technology is spreading rapidly, with dozens of countries and even nonstate actors such as Hezbollah now developing or purchasing these systems. Military planners are developing autonomous drones that could make their own decisions on when to unleash lethal force.[31] If other nations follow our example as they often do, we will soon face the prospect of a world in which terror can rain down from the sky at any moment without warning. There is no long-term benefit to the United States in the unchecked proliferation of drone weapons or in the absence of agreed standards for limiting their use.

Drone strikes and targeted military operations stand in the way of a political solution to the conflicts in Afghanistan and Pakistan. The government of Afghanistan demands an end to U.S. military raids that violate Afghan homes. Pakistani officials want strict limits on drone strikes as a condition of their cooperation. Insurgent groups are using popular resentment at drone strikes to fan the flames of militancy. To overcome these obstacles and create a climate for reconciliation will require confidence-building measures and gestures of restraint. The United States could help by extending the current suspension of drone operations in Pakistan and halting targeted military operations in both countries.

The United States should work through the United Nations to convene an international conference for developing legal standards on the use of unmanned weapons. The goal should be to ensure that any military use of these systems complies fully with the laws of war, including international humanitarian law and human rights law. This would enhance our moral standing and strengthen U.S. and international security.

Notes

[1]Greg Miller, “Under Obama an emerging global apparatus for targeted killing,” Washington Post, December 28, 2011, (accessed December 29, 2011).
[2]Spencer Ackerman, “Libya: The Real U.S. Drone War,” Wired, October 20, 2011, (accessed December 29, 2011).
[3]Greg Miller, “Under Obama an emerging global apparatus for targeted killing,” Washington Post, December 28, 2011, l (accessed December 29, 2011).
[4]Eric Schmitt, “U.S. Preparing for Pakistanis to Curtail Ties,” New York Times, December 26, 2011, A1, A8.
[5]Hans J. Morgenthau, “Does Disarmament Mean Peace?” in Arms and Foreign Policy in the Nuclear Age, ed. Milton L. Rakove (New York: Oxford University Press, 1972), 422.
[6]“Numerous studies show that states with greater power capabilities are more likely than states with lesser capabilities to participate in and initiate wars.” Greg Cashman, Leonard C. Robinson. An introduction to the Causes of War: Patterns of Interstate Conflict from WWI to Iraq (Lanham: Rowman & Littlefield Publishers, 2007), 10.
[7]Mary Ellen O'Connell, “Seductive Drones: Learning from a Decade of Lethal Operations,” Journal of Law, Information & Science, August 2011 (accessed December 28, 2011).
[8]United Kingdom Ministry of Defence, “The UK Approach to Unmanned Aircraft Systems,” Joint Doctrine Note 2/11 (March 2011): 5-9.
[9]P.W. Singer, Wired for War: The Robotics Revolution and Conflict in the 21st Century (New York: Penguin Books, 2009), 316-321.
[10]Mary L. Dudziak, “To Whom is a Drone Loyal?” Balkinization, posted September 29, 2009, cited in Megan Braun and Daniel Brunstetter, “The implications of drones on the just war tradition,” Ethics and International Affairs 25, no. 3 (September 2011): 354.
[11]UN Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, 28 May 2010, A/HRC/14/24/Add.6 (accessed December 26, 2011) (pdf).
[12]Ken Dilanian, “U.S. counter-terrorism strategy to rely on surgical strikes, unmanned drones,” Los Angeles Times, June 29, 2011 (accessed December 26, 2011).
[13]Chris Woods, “Drone War Exposed – the complete picture of CIA strikes in Pakistan,” The Bureau of Investigative Journalism (August 10, 2011), (accessed December 26, 2011).
[14]Jane Mayer, “The Predator War: What are the risks of the C.I.A.’s covert drone program?,” New Yorker, October 26, 2009.
[15]Lane Hartill, “Sifting intelligence tips from vendettas in Afghanistan,” Christian Science Monitor, January 26, 2006, (accessed December 26, 2011).
[16]Alex Bellamy, “Is the War on Terror Just?” International Relations 19, no. 3 (2005): 28; Natalino Ronzitti, The Law of Air Warfare: Contemporary Issues (Utrecht: Eleven International Publishing, 2006) 311-312.
[17]U.N. Assistance Mission in Afghanistan. Afghanistan Midyear Report 2011: Protection of Civilians in Armed Conflict. Kabul, Afghanistan, July 2011.
[18]Seth G. Jones and Martin C. Libicki, How Terrorist Groups End: Lessons for Countering Al Qa’ida, 2nd ed. (Rand Publishing, 2008).
[19]Adam Entous, Siobhan Gorman, and Julian E. Barnes, “U.S. Tightens Drone Rules,” Wall Street Journal, November 4, 2011, A 16.
[20]New America Foundation, “2010: The Year of the Drone: An Analysis of U.S. Drone Strikes in Pakistan, 2004-2011,” Counterterrorism Strategy Initiative, (accessed December 21, 2011).
[21]Thomas J. Billitteri, “Drone Warfare: The Issues,” CQ Researcher 20, no. 28 (August 2010): 655; Adam Entous, “Special Report: How the White House Learned to Love the Drone,” Reuters, May 18, 2010, (accessed December 26, 2011).
[22]Jeffrey Thomas, “Transnational Terrorist Networks: The Afghanistan-Pakistan Connection,” Center for the Study of the Presidency and the Congress (August 18, 2011), (accessed December 26, 2011); see also Jason Burke, “Misreading the Taliban,” Prospect Magazine no. 152 (November 2008), cited in Thomas Ruttig, “How Tribal Are the Taleban? Afghanistan’s Largest Insurgent Movement between its Tribal Roots and Islamist Ideology,” Afghanistan Analysts Network, Thematic Report (June 2010): 16-17.
[23]Selig S. Harrison, Pakistan: The State of the Union (Washington, DC: Center for International Policy, 2009), 33.
[24]Congress, Committee on Armed Services, Effective Counterinsurgency: The Future of the U.S. Pakistan Military Partnership, 111th Cong., 1st sess., 23 April 2009, 21.
[25]Andrea Elliot, “Militant’s Path from Pakistan to Times Square,” New York Times, June 22, 2010, (accessed December 26, 2011); Preet Bharara, “Prosecution of Faisal Shahzad,” Offices of the United States Attorneys, United States Department of Justice, (accessed December 26, 2011).
[26]Scott Horton, “The Trouble with Drones,” Harper’s Magazine, May 3, 2010, (accessed December 26, 2011).
[27]Tara Mckelvey, “Inside the Killing Machine,” Newsweek, February 13, 2011.
[28]UN Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, 28 May 2010, A/HRC/14/24/Add.6, (accessed December 26, 2011) (pdf) par. 3.
[29]Ibid.
[30]Anderson, Kenneth, “Targeted Killing in U.S. Counterterrorism Strategy and Law,” Counterterrorism and American Statutory Law no. 9 (May 11, 2009), (accessed December 26, 2011).
[31]Peter Finn, “A future for drones: Automated killing,” Washington Post, September 19, 2011, (accessed December 30, 2011); A recent article in the Journal of Military Ethics argued that battlefield atrocities can be eliminated through the “ethical autonomy of unmanned systems,” giving machines the power to kill people. See R.C. Arkin, “The Case for Ethical Autonomy in Unmanned Systems,” Journal of Military Ethics 9 no. 4 (2010): 338-39.