Counterpoints and Recommendations

Some arguments can be justifiably made against the moral considerations advocated in Part Seven. In particular, two major objections will be discussed here. Following these come several recommendations arising from the insights developed through this work and intended for consideration by senior defense policy makers.

Counterpoints and Responses

Possible problems are inherent in encouraging military members to go beyond legal and political checks to consider the role of morality in their recommendations and decisions. Criticism from unnamed “Air Force officials” has argued that both the complexity of approval processes and the weight given to avoiding civilian casualties were excessive and may have prolonged the war in Afghanistan.[169] These officials pointed out that opportunities to strike suspicious, fleeting targets might have killed top al-Qaeda and Taliban leaders within a month of the start of OEF and negated the need to introduce ground troops and expand the war. One officer is quoted as saying: “The whole issue of collateral damage pervaded every level of the operation. It is shocking, the degree to which collateral damage hamstrung the operation.”[170] If indeed the additional moral considerations advocated by this paper would exacerbate this problem in the targeting process, some might believe they are not worthwhile, as indicated in the following article.

In a recent professional journal, three authors formally responded to the objections of the unnamed Air Force officials quoted by Ricks. Each of the respondents disagreed with assertions that these efforts to avoid collateral casualties and damage were wrong. Schmitt argues that these unnamed officials had forgotten that war is a “delicate dance” involving politics, law, ethics, and combat effectiveness, among other factors.[171] He maintains that complaints of excessive interference in the targeting approval process are rarely justified because the approval authorities must track risk of many types—not just military risk. Kashnikov, drawing from his knowledge of the Russian conflict in Chechnya, noted that the political restrictions and limitations, like those lamented by the unnamed Air Force officials, are what keep a limited conflict from sliding down the slippery slope into total war devoid of humanitarian concern.[172] He also asserted that whenever humanitarian issues in war are determined by what the weapons technology is or is not capable of doing, then those fighting the war are on that slope. Westhusing emphasized the importance of decision makers seeing and understanding “the big picture” and taking into account not just military efficiency, but the potential costs of innocent deaths and the effect of the military action on Muslim opinion.[173] Together, the three responses of Schmitt, Kashnikov, and Westhusing claim that there is far more at stake in the targeting process than hitting or missing the target. Their arguments support the claim of this paper that it is vitally important to prepare military decision makers morally as well as legally in order to address these decisions.

A second counterpoint to the inclusion of moral training is the argument that the legal standards of international law have been worked out to be reasonable and enforceable, and are sufficient without additional moral considerations. As mentioned in Part Three, Fuller saw a clear tie between morality and law, but advocated that law is only useful if it can be enforced without creating new problems. He argued that trying to set the “pointer” of law above the minimum standards of the morality of duty was commonly advocated, but a mistake.[174] Cohen similarly argued that in very difficult situations there is only so much that people can be reasonably expected to do. He maintains that asking more than that is wrong. It seems certain that one result would be frustration and overload. Why should anyone propose further burdening military members with considerations beyond the legal ones?

The argument for “reasonableness” in the standards expected for military decision makers may hold for the legal thresholds of permissible behavior. Indeed, the recommendations stemming from this research do not propose changes to the law of war. But legal actions may not always be morally satisfactory ones and therefore this paper has focused on possible contributions from moral judgment and decision making. As Fuller himself said, laws “can create the conditions essential for a rational human existence. These are the necessary, but not the sufficient conditions for the achievement of that end.”[175] Decision makers can and should be better informed of which moral conflicts exist in their decision environment, why they exist, and how their associated biases can be minimized. They should also be alerted to the potential of other traps in their moral thinking. This information will not alter the military members’ accountability under international law, but will better prepare them to address important moral issues within and beyond the legal dimensions of the dilemmas they must face.

Recommendations

The purpose of this discussion has not been to define what is reasonable, although that word is significant in the law of war. In Part Three of this paper, the “reasonable commander” criterion was described as the legal standard for proportionality decisions. Article 57 of Protocol I enjoined the signatories to “take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.”[176] However, this discussion has been focused on finding ways to help military decision makers and those who advise them to be better able to reason with moral matters firmly in mind. Making moral decisions can be likened to decision makers picking their way along a narrow, craggy ridgeline between two abysses. The following recommendations are intended to assist military decision makers and their staffs by working to identify the moral-equivalent of potholes, loose rocks, and blind alleys along that thin path and by providing the best preparation possible so these military members can traverse it successfully.

To this end, the Air Force, Joint Staff, or Office of the Secretary of Defense should convene an ethics advisory panel comprised of ethicists, legal counsels, specialists in judgment and decision making, and experts in targeting and command and control. Authorities in ethics, law, and judgment and decision making should be drawn from both the military sector and from the best-qualified scholars and practitioners in the civilian sector. This panel should formally review the moral aspects of the decision process embodied in the targeting cycle and the approach currently used to prepare participants in this process. They should begin by considering the recommendations listed here. The panel’s own expert recommendations would serve as the template for changes to better support the military decision makers and their staffs as they seek to minimize collateral casualties and damage and the negative effect of these occurrences on the national interests of the United States.

Recommendation #1: Create standardized “morality of war” training materials that clearly acknowledge the moral roots, especially the principle of humanity, behind the legal standards of international law. The training may be distinct from, but should be linked to, the law of war training program and should emphasize the following:

a. The moral force behind the dual roles of the military member in the targeting process: protectors separating innocent civilians from harm and warriors pursuing military objectives.

b. The conflicts between considerations in the targeting process and the potential biases of the decision makers. Particularly emphasize the threat of partiality in judgments that would prematurely favor military necessity over the lives of innocents.

c. The strategies available to check for, and work against, whatever biases may exist. These strategies would include moral advice, feedback, and tools or tests.

d. The possible pitfalls in moral thinking that pose direct threats to “right” targeting decisions. Drawing from the Josephson Institute, these include rationalization of necessity, false necessity, and rationalization of legality. Added by Glover are neutralization of human responses, moral inertia, fragmentation of responsibility, and the moral slide of precedents. Particularly pertinent to this recommendation, Glover emphasizes that moral identity is not a fixed resource, but can be strengthened through thought and discussion, both worthy objectives of the training proposed here.[177]

e. Case studies from actual air strikes that capture the considerations at the time the decision was made, the rationale used to make the decision, and the outcome, to the extent it is known.

f. Accurate descriptions and photographs of the target areas after air strikes, highlighting not only the gun camera footage of bombs striking with amazing accuracy, but also including the unintended harm suffered by civilians (with Recommendation #2, below, making this information more easily available). This component of the training should be focused on helping airmen maintain the human responses of sympathy and respect that Glover warns are likely to be lost over time when attackers cannot see the direct results of their actions.[178]

Recommendation #2: Dedicate United States government resources to rapidly obtaining and integrating information associated with incidents of reported collateral casualties and damage. While a trustworthy picture of the harmful effects to civilians after such a strike will be difficult to obtain, these effects must be accurately characterized as soon as possible. This information should then be immediately provided to the military decision makers and their staffs for consideration in the ongoing targeting cycle. A group of specialized teams drawing from the Department of Defense, Department of State, and other government offices would likely be necessary to perform these fact-finding surveys. This task is so morally critical, that if sufficient government resources cannot be found and dedicated to it, consideration should be given to crafting workable partnerships with selected media and non-governmental organizations who also want to determine the facts in these incidents, although they will arguably have different motivations for this quest.

Recommendation #3: Provide additional sources of expert ethics and judgment advice to the staffs and commanders that implement the targeting cycle. Where the responsibility for targeting decisions rest with the responsible commanders, they remain the determining authority for what resources they want to use in making those decisions. However, the complex moral decision environment described here calls for the availability of additional resources focused on the issues raised in this work.

Such a resource might be dedicated, trained experts assigned to full-time command and control staffs or available to deploy when requested. These advisors should be provided specialized training in applied ethics, judgment, and decision making—a distinctly different role from that formally assigned to the legal advisors. This approach offers the primary advantage of advisors who are sensitized to the moral tensions and conflicts in the targeting decision process and who are dedicated to watching out for threats to moral decisions and helping decision makers avoid them. These ethics and judgment advisors would not supplant the authority of the commander, but offer expert counsel just as legal advisors do. Such a dedicated source of moral advice would be greatly appreciated in a future conflict that is not proceeding smoothly and poses increasingly complex ethical dilemmas along with great pressure for moral compromise. The distinct disadvantages of this approach of dedicated advisors are the hiring of additional staff and the creation of a training program to equip them to offer well-founded and pertinent advice from these critical, but complex perspectives.

An alternate approach that would help address these concerns would be enhancing and expanding the training already provided to legal advisors and expanding their formally assigned duties beyond advising on legal matters during targeting operations. While some legal advisors may already seek to fill this need, the formalization of these duties would require additional training and education to standardize the equipping of all the legal counsels. This would add additional strain to this already heavily burdened corps of professionals and might compromise their legal advisory duties as moral considerations often lie beyond the legal standards of behavior.

However this cadre of ethics and judgment advisors is formed, the Department of Defense could also use them to oversee and help run the morality of war training program mentioned in the first recommendation above.

 

In addition to these three recommendations, the current work has raised important questions that should be investigated in future research. The first question arises from a need to better define the role of national partiality in modern day warfare. How has that role changed in the past century? Also, what are morally permissible levels of national partiality and why? A second question focuses further on the role of post-strike feedback. What are the moral responsibilities of the United States government to provide to the national or world populace an assessment of collateral casualties and damage following an individual air strike or conflict? The third issue is a more thorough investigation of how best to accomplish additional moral training for military decision makers. What would be effective, efficient, and feasible approaches and mechanisms that would produce useful knowledge and practical skills in moral decision making in the course of planning air strikes?

The primary recommendations resulting from this work would not be easy or inexpensive to implement. However, the moral force of the national values and military ethic of the United States, the international law of war, and, most importantly, the lives of innocent civilians—wherever and whenever war is waged—all call for the careful consideration of these insights and proposals. Principles and cautions from ethics and judgment and decision making provide different and important lenses through which to view the very difficult issues posed in the targeting process. More fully incorporating these concepts may contribute to better moral preparation of United States military decision makers and, in the final analysis, may contribute to making wars of the future less costly in terms of innocent lives.