I don’t really know where to start with Michael Hayden’s piece in the New York Times defending drone strikes. Perhaps with the report last fall from the Intercept that shows that the very data we use to characterize the results of drone strikes is cooked “by categorizing unidentified people killed in a strike as enemies, even if they were not the intended targets.” Drone strikes are automatically effective if you assume they are effective, and you can do that by the casual us versus them analysis that says “If you live in one of these areas, or are walking near particular people, you’re probably a terrorist.” The only (ironic) way in which this might be true is that, if you didn’t hate the United States before indiscriminate drone killings, you’re much more likely to afterwards, when someone you know was killed. Not that the targets are necessarily well-chosen, either. One analyst has described these methods as “completely bullshit.”

But what I want to point out is the argument Hayden makes about the efficacy of drone strikes. He says definitively that, despite the errors (which he acknowledges the existence but not the magnitude of), the program is worth it because it has prevented terror attacks. I’m not sure how we know this definitively. It’s always good to invoke a mushroom cloud when we’re talking about killing people in other countries (see the Iraq war), but these are always questions of probability, not certainty. I get that that’s inherent in intelligence work, but I think it’s probably overstating it to say that we necessarily got X benefit for Y deaths.

The bigger problem, as I see it, is the narrow way in which Hayden’s analysis views the costs and alternatives. Drones might be justified if they are the best option we have, but drone use shouldn’t be compared to doing nothing, but compared to doing something else.  Whether it’s worth it “to America” has to include the long-term damage it is doing to our reputation around the world.  But I’d like to think we should also consider the lives and psychological well-being of innocent people who are being randomly killed.

I guess Hayden’s fundamental cost-benefit analysis is this: extra-judicial killings are “worth it” only because he sees innocent lives as worthless. Perhaps they are to Michael Hayden—after all, these are mostly Muslims living in foreign lands. I don’t see it that way, nor do I see this as being representative of the values of the United States.

[Cross-posted at The Reality-Based Community]

David Ball

David Ball is an Associate Professor at Santa Clara School of Law. He writes and teaches primarily in the fields of criminal law and criminal procedure, with a special focus on sentencing and corrections. He also serves as the Co-Chair of the Corrections Committee of the American Bar Association.