{"id":466099,"date":"2010-03-24T11:03:12","date_gmt":"2010-03-24T15:03:12","guid":{"rendered":"http:\/\/opiniojuris.org\/?p=11690"},"modified":"2010-03-24T11:03:12","modified_gmt":"2010-03-24T15:03:12","slug":"drone-warfare-and-uavs-in-house-subcommittee-hearing","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/466099","title":{"rendered":"Drone Warfare and UAVs in House Subcommittee Hearing"},"content":{"rendered":"<p><strong><em>by Kenneth Anderson <\/em><\/strong><\/p>\n<p>(<em>Note: \u00a0I hear Rumors, Unverified Gossip, and Speculation that Legal Adviser Koh will give a formal statement of views on targeted killing and drone warfare at his keynote address at ASIL this week. \u00a0I would certainly welcome such a statement, of course &#8211; I hope that it would be sufficiently broad so as to encompass what the President is actually and most controversially doing (via the CIA as well as the military) as well as what future presidents might do in the world of After Al Qaeda &#8211; but in any case, certainly I would welcome a public statement by the Obama administration&#8217;s lawyers on this vital topic. \u00a0Unfortunately, I won&#8217;t be able to attend, as canceling class after so many snow days and lost time this semester is a bad idea, but I look forward to the webcast.)<\/em><\/p>\n<p>Yesterday (Tuesday, March 23, 2010) I was pleased to appear as a witness before the House Subcommittee on National Security and Foreign Affairs, to discuss drone warfare and Unmanned Aerial Vehicles (UAVs). \u00a0The <a  href=\"http:\/\/oversight.house.gov\/index.php?option=com_content&amp;task=view&amp;id=4840&amp;Itemid=30\">list of witnesses is here<\/a>, along with a link to a webcast (which I can&#8217;t seem to open), and links to the witness statements. \u00a0I am always fascinated to listen to Brooking&#8217;s Peter Singer, author of <em>Wired for War<\/em>. \u00a0I was particularly interested to hear in this session discussion of the many ways in which UAV technology is entering civilian fields &#8211; everything from crop dusting to monitoring schools of fish from the sky. \u00a0Someone mentioned (but I haven&#8217;t verified) that University of Nevada now offers a degree program in UAV control. \u00a0 My points were fairly removed from much of the rest of the technological or military discussion, being aimed squarely at policy and legal policy concerns. \u00a0In my oral statement, I emphasized the following:<\/p>\n<ul>\n<li>The Obama administration has embraced drone warfare, but its lawyers have not caught up; presumably they have private concluded that the several drone warfare programs underway are legal, but it is not a good idea to keep the rationales secret. \u00a0Not, at least, with a program in Pakistan that is only a matter of official denial, not secret. \u00a0It leaves the President and operations people on down hanging out there exposed.<\/li>\n<li>The drone warfare campaign embraced most thoroughly as a strategic matter &#8211; correctly, in my view &#8211; by the senior administration officials starting with the President is not the &#8220;hot battlefield&#8221; use of drones, in which they are essentially a substitute air support weapon for a manned system. \u00a0It is, instead, the use of drones in a role unique to them, as a targeted killing mechanism for use in places far off of active battlefields. \u00a0There are some questions raised about military battlefield use of drones, but the real questions lie off the active hot battlefield &#8211; and it is these uses that are the real reason why senior Obama officials have celebrated them.<\/li>\n<li>The fundamental issue in a legal policy sense, then, is not so much drones as such &#8211; it is their use in a campaign by the CIA of targeted killing. \u00a0A better way to understand the drone debate is that this emerging technology has forced onto the table discussion of the lawful and appropriate role of the CIA, in the use of force, and in covert operations using force. \u00a0Much of the purely military discussion is interesting technically, but legally somewhat beside the point at least at this point. \u00a0A millimeter beneath the surface of the drone discussion is the question of the CIA. \u00a0This is the point of the attack on the CIA&#8217;s role as criminal made by Mary Ellen O&#8217;Connell, and also by Gary Solis in his characterization of America&#8217;s &#8220;own unlawful combatants.&#8221;<\/li>\n<li>CIA director Leon Panetta has been engaged in a vigorous public defense of the drone program of targeted killing by the CIA. \u00a0I am all in favor of it, of course &#8211; but as a friend of the program, so to speak, and happy as I am to see Panetta speak up, his defense of the CIA program is slightly beside the point. \u00a0He defends the success of the program. Leaving aside criticisms of &#8220;blowback&#8221; &#8211; easy to make, hard to prove or disprove, frankly, but leave that aside &#8211; for most of us the success of the program is not the issue. \u00a0At issue is its <em>legality<\/em>, not its success. \u00a0Or at least, to know on what basis the lawyers think it is legal.<\/li>\n<li>Even you believe targeted killing using drones is, as a general proposition, legal under domestic and international law, as I do, it matters what kind of legal rationale one asserts for it. \u00a0Not all lawyers would agree, to be sure, and I suspect this includes lawyers inside the administration, but in my view it matters whether one adopts an &#8220;armed conflict&#8221; justification in which, when the US targets someone in Pakistan or Yemen or Somalia or wherever, that person is determined to be a lawful target &#8211; and it doesn&#8217;t matter, for the bare legality of targeting, where he is located. \u00a0The armed conflict goes where the combatant goes. \u00a0Mumbai, Mogadishu, wherever. \u00a0I think this is wrong as a question of the laws of armed conflict, because it does not adhere to the threshold requirements of this peculiar non-international conflict with a non-state actor taking place on a global basis that the US has with Al Qaeda. \u00a0In my view, the proper legal frame is international law of self-defense &#8211; and it is what the US has traditionally viewed the exercise of these discrete uses of force by the CIA, covert or clandestine, as being anyway.<\/li>\n<li>These two legal rationales eventually lead to different legal conclusions, constraints and authority for the use of force. \u00a0My view is that forcing CIA targeted killing in places that might range widely in the world into armed conflict rationales is bad for the CIA&#8217;s legal reasoning, and requires ever greater legal contortions to make it fit into a model of armed conflict law that is about the overt meeting of armies and state forces, not covert ops and intelligence services using force. \u00a0I don&#8217;t think it is a stable legal view for the CIA over the long term. \u00a0Moreover, as I thought in analyzing the Bush administration&#8217;s &#8220;global war on terror&#8221; legal frame, forcing all uses of force outside of plain law enforcement into the armed conflict box of law for overt war distorts that body of law and its interpretation, too. \u00a0It isn&#8217;t about regulating covert ops and intelligence services &#8211; there was a good reason why, during all those decades before the 1990s, it was regarded as not unlawful under international law, but not part of the law of armed conflict, either.<\/li>\n<\/ul>\n<p>So I think it will turn out to matter quite a lot over the long term that the Obama lawyers eventually opt for the specific law of armed conflict, including its definitions and thresholds under treaty and customary law, or some customary law of self-defense. \u00a0My guess is that the administration&#8217;s lawyers will finally opt for what appears to them to be both a narrower and a superficially reassuring ground of armed conflict that allows them to say that everyone being targeted is a &#8220;combatant&#8221; in a legal sense. \u00a0Again, my own view is that this won&#8217;t work over the long run &#8211; it will degrade as a rationale for the CIA under withering attack from the soft-law community, and it will have a tendency to degrade the law of war itself as rationales suited to a body of rules about large scale, or at least overt, conflict modeled on inter-state armed conflict, continues to pressed into service in an area that is mostly about covert or clandestine operations, and which aims to avoid overt war.<\/p>\n<p>Put more bluntly, as a political evaluation, I think this rationale will work so long, but just so long, as there is an Obama administration. \u00a0As a legal rationale, armed conflict as a rationale will turn out to be a legally and politically &#8220;wasting asset.&#8221; \u00a0The legal attacks on targeted killing and the use of drones therein will be developing, but won&#8217;t ripen into active claims of war crimes and so on, at least ones that have teeth, until the Obama administration leaves office. \u00a0Like many of the Bush-era legal tools in counterterrorism, my guess is that the Obama administration will rely on them &#8211; but not legally defend them in ways that leave them plainly and cleanly available to the next president or future administrations.<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" src=\"http:\/\/feeds.feedburner.com\/~r\/opiniojurisfeed\/~4\/1pdB_Pp45ec\" height=\"1\" width=\"1\"\/><\/p>\n","protected":false},"excerpt":{"rendered":"<p>by Kenneth Anderson (Note: \u00a0I hear Rumors, Unverified Gossip, and Speculation that Legal Adviser Koh will give a formal statement of views on targeted killing and drone warfare at his keynote address at ASIL this week. \u00a0I would certainly welcome such a statement, of course &#8211; I hope that it would be sufficiently broad so [&hellip;]<\/p>\n","protected":false},"author":4222,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-466099","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/466099","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4222"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=466099"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/466099\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=466099"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=466099"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=466099"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}