Casualties and Polls: Some Observations

In a recent post provocatively entitled “New Poll: American Support for Drone Strikes Plummets When Innocent US Civilians Killed,” Just Security’s editor Ryan Goodman energetically tries to counter the many headlines about the May 1st AP/Gfk poll that found that notwithstanding the unintended deaths of an American and Italian hostage in Pakistan last January as a result of a drone strike (that also killed several al-Qaeda operatives who were the intended targets), the American people still strongly support the use of drones as a counterterrorism tool. Indeed, despite the grim aftermath of the hostage deaths, only 5% of the public “strongly opposed” the use of drones (another 8% “somewhat” oppose them).

Ryan, who I don’t believe opposes drone technology per se, nevertheless criticizes the many surveys that consistently show solid U.S. support for drones because they “fail to seek information about public attitudes in the face of drone operations that, in reality, often cause civilian deaths.” He is right to conclude that, logically, public support declines when civilian casualties are involved, and he is also right to critique the polls. I do disagree, however, with the popular assumption (and not just Ryan’s) that “in reality” drone strikes “often” cause civilian casualties.

Furthermore, I believe that the support of the American people for drone strikes would be even stronger if they knew not only that civilian casualties are atypical these days, but also had — as I discuss over at War on the Rocks — a better understanding of the law.

For example, I think lots of folks unwittingly assume it is somehow legally wrong to launch a drone strike (or any attack) knowing civilians are likely to be killed. Of course, as Protocol 1 to the Geneva Conventions makes clear, it is legal to conduct such attacks so long as the “incidental loss of civilian life” isn’t “excessive in relation to the concrete and direct military advantage anticipated.”

How that so-called “proportionality” standard works in the law can be challenging and contextual, as Mike Schmitt recently explained. Nevertheless, it is imperative to understand it in order to make meaningful judgments as to the propriety of drone strikes and other warfighting activities. Yet it is rarely explained by pollsters, let alone those opposing drone strikes who, I predict, would see their fortunes sink even lower.

Similarly, I also believe that people ought to know that just because someone is properly protected from direct attack because they are technically considered a “civilian” by international law, that doesn’t necessarily make them morally or even legally “innocent” of supporting terrorism or other nefariousness.

In truth, while we can make informed judgments as to who is, or is not, a “civilian” in the eyes of the law, we might rarely know — and the law in this instance doesn’t care — who among the civilians proximate to known terrorists are authentically “innocent.” The point is that the public need not flagellate themselves with the misapprehension that every civilian who may be killed was incontrovertibly an “innocent.”

In making his argument, Ryan relies upon the research conducted by our mutual friend, Sarah Kreps, a social scientist at Cornell. Though I like and respect Prof. Kreps, I find I must disagree with her research in this instance for a number of reasons. For example, in conducting her survey she employed an Amazon Mechanical Turk, which is an online service where people who self-select themselves to be employed as “workers” have the option to further self-select “Human Intelligence Tasks” in which to participate (in this case a survey) and to be paid.

Frankly, whatever value the “Amazon Mechanical Turk” may have for other “Human Intelligence Tasks,” I personally am very skeptical of its value in this particular context. Among other things, I think that the mindset of someone who decides to become a paid Internet “worker” is not necessarily coterminous with that of the average American, especially when the survey depends upon such “workers” choosing to be employed as a respondent on this specific survey.

As Prof. Kreps recognizes herself, the Amazon Mechanical Turk results could hardly be a representative sample, so she re-weighted it as to political affiliation based on 2008 data from something called the American National Election Studies (ANES). Why use 2008 data for a 2014 survey? Because, Prof. Kreps advises in her report, “2008 is the latest ANES Survey for which data are available.”

I find that explanation puzzling because there are plenty of other sources for party affiliation data (even assuming that party affiliation is a sufficient re-weighting standard this kind of survey). Actually, party affiliation (to include, as ANES did, those who “leaned”) in 2008 was, according to the Pew Research Center, 35% Republican and 51% Democrat (and, importantly, the 2008 Presidential election result was McCain (R) 46% and Obama (D) 52%).

Of greater importance is that in 2014 (when Prof. Kreps did her poll), Pew found party affiliation to be 39% Republican and 48% Democrat (a 9-point difference). Yet Prof. Kreps built her survey results on the erroneous supposition that the U.S. was just 25% Republican and an overwhelming 59% Democratic (a full 34-point difference). As significant as this may be, it is not my biggest concern about her survey.

I also disagree with the questions she used (they are here for your review). In my opinion, they rather plainly invite “anti-drone” responses. For example, respondents were asked “Do you support or oppose the use of drones under these circumstances?” and this circumstance was one of those posed:

As you may know, the United States has been using unmanned aerial vehicles, also known as drones, to target and kill individuals in countries such as Pakistan, Yemen, and Somalia. Beyond the intended targets, these strikes have often caused a number of civilian casualties. This collateral damage may mean there are more civilian deaths than are actually reported.

The problem? In the first place, it is misleading to characterize the targets merely as generic “individuals.” Furthermore, as I indicate above, I believe it is inaccurate to assume that drone strikes “often” cause civilian casualties. Consider what Will Saletan over at Slate recently dug out from the intractably drone-hostile (check out their website!) Bureau of Investigative Journalism (BIJ): In 2014 BIJ reported, “In the past 18 months, reports of civilian casualties in attacks on any targets have almost completely vanished … despite a rise in the proportion of strikes that hit houses.” (my emphasis.)

BIJ (whose data Prof. Kreps uses) quite plainly provides no empirical support for the idea that in March of 2014 (when her survey taken) drone strikes “often” cause civilian casualties.

Indeed, for all of 2014 BIJ reported barely 0-2 civilian deaths in 25 drone strikes in Pakistan. (Incidentally, BIJ had only 4-9 civilians killed in 13-15 “confirmed drone strikes” for all of 2014 in Yemen, and just 0-5 civilians killed from 2001 to 2014 in 9-13 drone strikes in Somalia). In reality, civilian deaths from drone strikes in both Pakistan and Yemen are rare in recent years, if they ever were anything but infrequent.

Here’s another example of a circumstance in Prof. Kreps’s survey with which I am obliged to take issue:

The government’s definition of “terrorist” includes individuals who appear to behave in similar ways as terrorists—for example, going to a meeting with community elders—but who may not be confirmed terrorists. Such a broad definition may mean there are more civilian deaths than are actually reported.

Really? Do social scientists truly believe that the U.S. government is designating someone as a “terrorist” simply because that person happens to be “going to a meeting with community elders”? If so, that is a “Texas-size” conspiracy theory.

Seriously, I defy anyone to prove that merely “going to a meeting with community elders” was the basis for characterizing someone as a “terrorist,” let alone targeting them for a drone strike. The troubling wording is further exacerbated by the question structure that suggests that this “example” actually comes from the “government’s definition.”

In addition, there is a series of “circumstances” presented in the survey where there are statements that follow the “often” civilian casualties’ assertion that insinuate wrongdoing. Here’s an example of such juxtaposed language: “In addition, strikes in areas where the US is not involved in armed conflict may be a violation of international law” (and there is a similar one for “domestic” law).

We can debate about the legality (and where the US is involved in an “armed conflict”), but it is important to note that the opposite proposition is never presented for comparative analysis. In short, the Internet “workers” are never queried as to whether they support drone strikes where civilians are infrequently killed in operations lawfully conducted — which are, in fact, circumstances much closer to reality than those which the survey asserted and focused upon.

Though it was probably not the intent of her paper, what I conclude Prof Kreps’s work really shows is that if people are misinformed as to the law and/or the facts as to drone strikes, then their support for them will drop.

Recently, Prof. Kreps teamed with Prof Geoffrey Wallace, a political scientist at Rutgers, to produce a related paper entitled, International Law, Military Effectiveness, and Public Support for Drone Strikes. That paper — which is quite intriguing and a “must read” regardless of where you stand on drones — concludes that “public support for drone strikes is moved more by legal principles than by military effectiveness.”

It also claims that research shows “negative publicity by human rights groups increased individuals opposition to their government’s policies,” and this suggests, the authors tell us, that “active critics” of drones such as Human Rights Watch (HRW) and Amnesty International (AI) could “help diminish public support for drones.” (The authors seem unaware of the devastating criticism that both HRW’s and AI’s expositions on drones have received.)

So why aren’t these critics (who the authors apparently find “credible”) more successful in dissuading the public from supporting drones? The authors seem to believe it is the “overwhelming presence of government voices in discussions of drones in U.S. newspapers” that gives it “a privileged position in establishing the baseline view” about drones, and that is — obviously — supportive of them.

Their method of coming to this conclusion is, however, puzzling to me. In a computer examination of thousands of newspaper articles, they used search terms to discern whether a story had a “voice.” That “voice” could be the government (presumed to be pro-drone) or nongovernmental organizations (NGOs) and international organizations (IO) (both presumed to be drone critics). Thus, if the phrase “White House” or “Defense Department” appeared in the story, that was enough to consider that a government “voice” was heard in it.

While there is much to credit in the Kreps/Wallace study, I part company with this assumption. In the first place, simply because “Defense Department” appears somewhere in a story, that would hardly mean that there was, categorically, a government “voice” defending or even discussing drone strikes in any meaningful way. Most government officials are not permitted to discuss drone operations, or even the law related to them.

One can understandably criticize the government for that lack of transparency, but — regardless — it typically provides critics with free reign to make whatever legal or factual claims they want, and do so without much opposition beyond, perhaps, a perfunctory denial. Moreover, given that many of the most influential newspapers have already staked out drone-hostile editorial positions (e.g., New York Times, Washington Post, and San Francisco Chronicle), I am not surprised when I see what government “voice” there might be in an article is included in way that is clearly little more than an afterthought. Rarely in my experience do reporters seek out “voices” outside of government that may be supportive of drones.

Additionally, measuring just newspapers excludes other influential media hostile to drones. There are plenty of journals, blogs, reports and other outlets with real influence that reflect anti-drone activism, to include items originating in the legal academy. Along this line, I don’t endorse (and, indeed, have not fully read) a new article in George Mason Law’s National Security Law Journal where William C. Bradford launches into an extended (185 page) and vitriolic critique of the legal academy as to security issues (including drones). Nevertheless, it is my own observation that while there are academics who are supportive of the legality of drone operations, they are relatively few and far between.

I don’t believe that anti-drone animus in the academy is necessarily ideological or nefarious in some way. Rather, I believe that there are those in the academy who may be erudite in the law, but who honestly don’t understand military technology or the verities of warfare, and that unfamiliarity (about which they may be unaware) skews their views. Overall, I just do not agree with the idea that anti-drone activists have been somehow drowned out in the public discourse by pro-drone government “voices.”

Perhaps the most interesting aspect of the Kreps/Wallace study is the playbook they provide drone opponents. They say that despite today’s supportive poll results, anti-drone “campaigns pursued by IOs such as the UN, and NGOs like HRW, can have some traction.”

The key, it seems, is to recognize that “criticisms focusing on the effectiveness of strikes [have] had little impact; only those highlighting normative principles embodied in international legal principles significantly altered public attitudes toward drone warfare.” If an anti-drone campaign follows that law-centered prescription, “continued efforts by NGOs and IOs would further reduce support for drone strikes” and could even “ultimately erode the program’s viability.”

Quite obviously, that invites drone opponents to double-down on publicity that does not delineate the actual permissive contours of international law, and that capitalizes on the myths we’ve discussed that suggest that any civilian casualties are ipso facto indicative that “innocents” were killed, and that they must have died as a result of an illegality or dereliction of some sort. Painting those involved in drone operations as rogues or even criminals would seem to be the kind of thing that would work.

The obvious counter to the Kreps/Wallace strategy: reverse engineer it. Those who believe that drone operations are an essential tool of counterterrorism need to do a better job at clarifying precisely what international (and domestic) law actually permits (which can mean that civilian casualties are not necessarily the product of criminality or ineptitude).

Furthermore, as Ryan indicates in his posting, emphasizing precision in drone operations may be counterproductive as the realities of warfare — to include enemies utilizing women and children as human shields — mean that civilians will likely be killed from time to time, even in the most scrupulously legal and moral military operation.

Here’s where I sense Ryan, Professors Kreps and Wallace, and I invariably agree: we all believe that the law and the facts are truly important to the American people, and that is something policymakers ought to internalize. And I think we would also all agree it is vitally important that there be accuracy and completeness in the drone dialogue, especially with respect to discussions of the law. The drone debate really does matter.

That said, I believe it says much good about the common sense of the American people that notwithstanding the less-than-stellar job that pollsters, government, media, academia, and others have done in clarifying the law (and the facts), they nevertheless have instinctively concluded by a significant majority that in a conflict against a savage enemy, the melancholy truth is that some civilians will inevitably die in the effort to save even greater numbers from the horrific depredations of terrorists.

[Editor’s note: Stay tuned for a response by Professor Sarah Kreps and George Wallace at Just Security.] 

About the Author(s)

Charles J. Dunlap, Jr.

Professor of the Practice of Law and Executive Director of the Center on Law, Ethics and National Security at Duke Law School He retired from the Air Force in 2010 as a Major General.