JANUARY 17, 2014
By the Future of War team, New America Foundation
Best Defense office of the future
Law, institutions, and political organizations always lag behind changing technologies. While no one can predict with any certainty precisely how evolving technologies will change the future shape of law and political structures, New America's "Future of War" project will map out the key conceptual and legal questions that we need to grapple with as we move forward.
Changing technologies are simultaneously increasing and decreasing state power; how will these countervailing trends change the nature of state power vis à vis other states and non-state actors?
Will they drive changes in how states interact with one another? On the one hand, wealthy and powerful states -- in particular, the United States -- now have unprecedented means of exercising power. Massive surveillance power, space-based weapons systems, and so on remain within the sole province of powerful states. Even drones are primarily tools of powerful states, since only those states have the anti-aircraft capabilities to prevent incursions by "foreign" drones and the broad-based intelligence capabilities that permit drones to target specific individuals. On the other hand, individuals and non-state organizations can confound state power in new ways, both through the use of sophisticated cyber tools and through the dispersed and decentralized use of simple, low-tech weapons such as IEDs, which are difficult to track and control.
As technologies of violence and control change, so do the concepts of "war" and "peace." Does "armed conflict" versus "unarmed conflict" still make sense as a distinguishing category? Should we seek to develop rules governing the "state use of force across national borders"?
If we retain existing constructs of war and peace, how do we define these? In the "war" against al Qaeda and its allies, "the battlefield" is potentially anywhere on the globe and "the enemy" is not another army but a loosely associated group of individuals of varying nationalities. The wars in Iraq and Afghanistan were armed conflicts, but as a legal matter, is the United States in an "armed conflict" with suspected violent extremists living in Bosnia, or with militant leaders in Pakistan's tribal regions? Are we in an armed conflict with suspected al Qaeda "associates" in Somalia? Is a U.S. drone strike in Somalia a lawful strike against an enemy combatant in an armed conflict, or the illegal, immoral murder of a human being in a foreign country (and a possible violation of sovereignty and the United Nations Charter to boot)?
How do we decide who is a combatant in this new kind of armed conflict, which is not fought by uniformed armies? How do we define "direct participation in hostilities" when any "hostilities" might be months or even many years in the future, and might involve anything from the destruction of a privately owned power plant to an internet denial-of-service attack? If we're truly in a "war," it's surely reasonable to consider an al Qaeda operative with bombs strapped to his chest a combatant who can be targeted or killed. But what about an al Qaeda financial supporter, or a propagandist who sets up web sites urging violent jihad? Are the drivers, bodyguards, servants, and wives of al Qaeda leaders combatants? Would a Somali tribal militant whose operations are wholly confined to Somalia be considered a combatant if he belongs to an organization that is loosely affiliated with al Qaeda?
How do we protect human rights and human dignity in this murky world? If we can't figure out whether or not there's a war -- or where the war is located, or who's a combatant in that war and who's a civilian -- we have no way of deciding whether, where, or to whom the law of war applies. But if we can't figure out what law applies, we lose any principled basis for making the most vital decisions a democracy can make, such as: When can lethal force be used inside the borders of a foreign country? Who can be imprisoned, for how long, and with what degree, if any, of due process? What matters can the courts decide and what matters should be beyond the scope of judicial review? When is government action and administrative procedure guarded by national security interests and when must government decisions and their basis be submitted to public scrutiny? And ultimately: Who lives, and who dies?
How does the migration of war into the cyber domain complicate these questions? Just as the law lags far behind advances in drone technology, so too the law has little to say about cyberwar, particularly in determining when and if a cyberattack is an "act of war." (Similarly, despite the increasing militarization of space, space law is only in its infancy.) There has been some discussion about these issues at the Pentagon, but very little in the public space. But it's important to consider, for instance, whether a large-scale Stuxnet-like attack on U.S. infrastructure would be an act of war or not. Would it depend on whether the attack was unleashed by a state, an organization, or an individual? How would one define "combatants" and civilians in a cyberconflict?
What does civilian control of the military mean in the context of these rapidly changing technologies? Consider cyber: There are reports of a confrontation three years ago between the Obama White House and the Pentagon over the issue of the pre-authorization of responses to a cyberattack. The Pentagon argument was that it simply couldn't wait for the White House to review the situation and decide to act. The White House ultimately responded that the Pentagon would have to wait for the president to get involved, just as it does with nuclear weapons. This exchange illustrates some of the new questions being raised as warfare evolves that are not being answered in a sufficiently coherent way.
How can we prevent interstate conflict in a world in which norms of state sovereignty are changing and eroding? Both human rights norms and security concerns have challenged traditional understandings of state sovereignty, which is increasingly viewed as a privilege earned by states that "follow the rules" and potentially waived by those that do not. In many ways, the shift away from absolutist conceptions of state sovereignty has been a positive development from a human rights perspective. But with the U.N. Security Council politicized and often paralyzed, powerful states -- such as the United States -- have increasingly taken it upon themselves to determine when it is appropriate to use force inside the borders of another state, a practice that jeopardizes the already fragile post World War II collective security bargain.
In addition to grappling with such large-scale conceptual questions, New America's "Future of War" project will engage with current policy debates that relate to these broader questions.
The Future of War project is led by Peter Bergen, director of national security studies at the New America Foundation, and the author of several books. This series was drafted by him and the team's other members: Rosa Brooks, Anne-Marie Slaughter, Sascha Meinrath, andTom Ricks.
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