Sunday, April 7, 2013

Drone Group: US Policy


Seeing as though almost all drone activity is monopolized by one country, I’ll be coving the policy of the United States of America for the lethal use of drones. I will look at the legal justifications for targeted killings of foreign nationals by drones, and then establish a working policy for when America uses drones lethally.
There are a few main arguments that America can use to justify the use of drones for targeted killings. First, there is the distinction between unlawful and lawful combatants and how Article 3 of the Geneva Conventions applies to each group. Second, there is the argument centered on Article 51 of the United Nations Charter. Finally, there is the leaked Department of Justice White Paper that outlines the conditions to preform a targeted killing of a United States citizen. Using the guidelines in this paper, it is possible to establish what the strictest use of drones for targeted killing may be.

Under the administration of President George W Bush, a legal argument was made to detain suspected members of al-Qaeda and the Taliban indefinitely without trial, and potentially subject them to “enhanced interrogation techniques.” The argument centered on distinguishing a lawful enemy combatant from an unlawful enemy combatant. A lawful enemy combatant is someone who is fighting the United States and follows a chain of command, openly carries arms, does not blend in with or target the civilian population, wears an insignia or uniform to distinguish themselves from civilians, and follows the rules of war. An unlawful enemy combatant is someone who is fighting the United States and fails to follow the rules of war and violates one or more of the above outlines for a lawful enemy combatant. Distinguishing a lawful enemy combatant from an unlawful one is important because lawful enemy combatants are protected under Common Article 3 of the Geneva Conventions against “(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; …[and]… (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples[1], while unlawful enemy combatants are not. This means that unlawful enemy combatants are not protected against execution and torture, and also do not have the right to not only habeas corpus, but also a trial in general[2].
The process for determining whether a suspected terrorist is an unlawful enemy combatant or a legal one is called a Combat Status Review Tribunal (CSRT). During a CSRT, a suspected terrorist does not have to be present at the whole hearing (due to classified evidence), hearsay evidence is allowed, information collected from “enhanced interrogation techniques” is allowed, there is no appeals process, and the status of the suspect is determined by a panel of three military officers. If a person is declared an unlawful enemy combatant as a result of a CSRT hearing, he/she can theoretically be targeted for killing by a drone strike. I say theoretically because not only are CSRTs are mostly classified, but so are most targets of drone strikes and the administration’s actual justifications.
After this justification, the first important point is that unlawful enemy combatants do not have international protections against being killed after their status is confirmed at a tribunal hearing that they may not be at.

The second argument to be claimed from the legality of lethal drone strikes is based off of the United Nations Charter. Chapter Seven, Article 51 allows for any UN member to respond to an attack out of self-defense[3]. The use of drones by the United States has been justified by the idea that war was declared against it in the form of the 9/11 attacks and that self-defense is authorized. The problem is though, that other than the Taliban government in Afghanistan, there was no single country to target a war against, the enemy resided in places such as Yemen, Somalia, and Pakistan. This prompted the idea that there is a global war against terrorism that blurs the traditional idea of war. According to Former Deputy General Counsel of the Department of Defense for International Affairs at the time, Charles Allen, “war depends on the person targeted, not the existence of armed hostilities”[4].
After this justification, the second important point is that using the UN idea of international self-defense, the United States can carry out a drone attack anywhere, anytime, without warning.

The final main argument for the legality of done killings is taken from how the United States views citizens versus non-citizens and a Department of Justice White Paper that NBC News obtained in early February.
Generally speaking, the United States and every other country views its own citizens as a priority over non-citizens (a government that held the opposite opinion probably wouldn’t remain in power very long). From a legal standpoint, the idea that citizens have more legal protections than non-citizens has been confirmed by Supreme Court rulings most recently and relevantly as the 2006 Hamdi decision. Another example is that when a United States citizen was captured and suspected of being a member of the Taliban, he was taken from Guantanamo Prison and put in civilian court instead of a CSRT.
The Department of Justice White Paper, rumored to be a part of the classified 2010 Office of Legal Council memo justifying the whole United States’ drone program, outlines under what conditions a United States citizen can be targeted and killed by a drone strike. The conditions are that:
“(1) An informed, high-level official of the United States government has determined that the targeted individual poses an imminent threat of violent attack against the United States of America; (2) capture, is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation is conducted in a manner consistent with the four fundamental principles [military necessity, distinction, proportionality, humanity[5]] of the laws of war governing the use of force.”[6]
This justification addresses three concerns: nature of the threat, potential to capture, and due process under the law.
Because of the idea that there is preferential treatment for US citizens versus non-citizens, it can be assumed that the criteria for using drones in a lethal manner is at most stringent equal to that needed to kill a US citizen (although most likely looser). This also shoots down the argument that drones could be used over the United States (also, see Eric Holder’s letter to Rand Paul: http://www.newyorker.com/online/blogs/closeread/2013/03/rand-paul-gets-a-letter-from-eric-holder.html) or, as Charles Allen suggested, a place such as Hamburg, Germany because capture is completely feasible. However, in places such as Waziristan or rural Yemen, capture is not nearly as feasible.
The third important point after this justification is that the criteria for killing US citizens involves an imminent threat, infeasibility of capture, and due process.

Taking these three important points, the overall policy of lethal drone use by the United States comes into focus. Its policy can be said to be that if a person is determined to be an unlawful enemy combatant as a result of a form of due process, their protections under Article 3 of the Geneva Conventions are forfeited. Coupled with international self-defense under Article 9 of the UN Charter the USA has launched, and will continue to launch, lethal drone strikes when there is no feasible option to capture the unlawful enemy combatant.

As a side note, it is interesting to note that these legal arguments by the government are all pertaining to justifying “enhanced interrogation techniques,” or torture, and indefinite detainment. It is against the government’s interest to use lethal drone strikes to kill senior member of al-Qaeda and the Taliban because they are no use to US intelligence agencies dead. It is my opinion that lethal drone strikes are one of the last lines of national self-defense, especially when indefinite detainment and all interrogation tactics are on the table for American intelligence agencies.

James Manning

29 comments:

  1. On the issue of killing US citizens vs non citizens shouldn't it be the priority of the US to protect its law abiding citizens as oppose non citizens while an accidental execution of a non citizen is a tragedy would allowing an active terrorist to escape and carry out an attack a greater tragedy from the point of view of the US government after all a nation exist at its most basic level to protect its own people not those of the world.

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    1. I think the premise of your question is would a US citizen be accepted as collateral damage?
      If not, correct me, however, I'll answer the question as so.
      I think the answer is yes, if there is a clear and present danger to a larger group of civilians. For example, if there is an airliner over the Atlantic that is hijacked with US citizens on board, and an F-15 is sent to intercept, I think that the authorization would be given to shoot it down if it were confirmed to be on course for a major population center such as DC or NYC. In this case, the number of citizens on the plane would be "acceptable" collateral damage instead of them in addition to casualties on the ground.

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  2. On the issue of laws of war should we consider the historical context of Frac a tier and collective retaliation when view the problem of drones. While the Articles where revised circa 1923 to tighten that definition I believe that collective punishment is still technically legal.

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    1. From my understanding, the idea of collective punishment goes back to the idea of massacring or punishing a civilian population for helping an enemy. However, under the AUMF and other post-9/11 laws passed by Congress, only the political elements who help the enemies of the US/allies of those responsible for 9/11 are targeted. I see this as different because there is a distinction between targeting the civilian population and political entities that are "fair game" for lack of better terms, in the rules of war.

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  3. Question on the point regarding the terrorist in Hamburg germany point. What about the Urban Guerilla case in point the Red Faction which waged a ten year campaign of terror in West Germany while avoiding capture. Could these people be legitimate drone targets ?

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    1. I'm not very familiar with that case, admittedly, however, I still think there is a line of distinction between the abilities of capture in the time periods. If West Germany had drones at the time and none of the surveillance infrastructure that Germany has now, yet had drones, and a state of war had been legitimized by one or both parties, then I could see a drone strike MAYBE being authorized because it was an armed insurrection against the legitimate government. However, I am not versed in West German Constitutional law, so I would say that I have nothing to offer here but speculation.

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  4. There has been some discourse in the news lately about the usage and concern of drones being used by law enforcement agencies in the U.S. to use non-lethal force on citizens committing crimes. Some activist groups are afraid that this, along with the use of lethal force against citizens will actually come to fruition. Here is a link to a recent news article on the topic of drones using force on U.S. citizens on U.S. soil: http://www.guardian.co.uk/commentisfree/2013/mar/29/domestic-drones-unique-dangers I would like to hear your opinion on the matter, do you think this is a justified use of drones or an infringement on civil rights?

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    1. A few things,
      1) I don't really see the problem with using drones as a form of surveillance IF A WARRANT IS ISSUED. The idea that drones could simply spy on whoever, whenever is a violation of our rights under the 4th Amendment. Possible court cases to reference could be the one about dogs not being used to search for drugs by sniffing the outside of your house (http://www.slate.com/articles/news_and_politics/jurisprudence/2013/03/supreme_court_police_dogs_can_t_sniff_for_drugs_on_your_porch.html). I see probable cause as a huge impediment to those who want to spy on everyone.
      2) As for the lethal aspect, I see it as nearly impossible to justify on US soil. The feasibility of capturing a suspect is almost 100% given the nation's infrastructure and levels of law enforcement working together. The only time I could see drones being used is in the case of another 9/11 or Flight 93 where a plane is on target for the Senate/White House/DC and if the passengers don't bring it down, that a drone strike is authorized to kill those on board to save the hundreds that would be killed in addition to them.

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  5. There has been some discourse in the news lately about the usage and concern of drones being used by law enforcement agencies in the U.S. to use non-lethal force on citizens committing crimes. Some activist groups are afraid that this, along with the use of lethal force against citizens will actually come to fruition. Here is a link to a recent news article on the topic of drones using force on U.S. citizens on U.S. soil: http://www.guardian.co.uk/commentisfree/2013/mar/29/domestic-drones-unique-dangers I would like to hear your opinion on the matter, do you think this is a justified use of drones or an infringement on civil rights?

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  6. With cyber terrorism and hacking become more prevalent and the instance of drones being hacked. How will this effect drone policy and the use of drones in the future?

    Heres one of the example I found but other countries have done it as well.

    http://www.huffingtonpost.com/2012/06/29/drone-hacked-by-universit_n_1638100.html

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    1. I actually remember reading this exact article and being scared you-know-whatless. Honestly, this comes back to the idea that the USA is frankly an easy target for those who really want to destroy it, cyber-wise. Our powergrids are wide-open along with main infrastructure hubs. I see this as more of an issue that the USAF will have to deal with, if not, then the US government at large. Drones being hacked is actually the least of my worries when it comes to potential cyber targets due to the idea that at least a Predator has a finite number of missiles while a power outage could kill many more.

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  7. This is commenting on your last paragraph. As you stated there are scenarios when it is unfeasible to capture an enemy combatant. How is interogation on the table for Al-Qaeda operatives who can't be captured? Is the U.S. conducting drone strikes on targets who could more easily be captured? Thanks.

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    1. I more or less had that paragraph in there to prove that I think that targeted killings really are a "last resort" so to speak. As in if the enemies were able to be captured, I think the US would do so instead of just pulling a trigger because of the loss of intelligence.

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  8. The ranking Republican on the Senate Foreign Relations Committee, Senator Bob Corker of Tennessee, recently announced that he will pursue a revision of the 2001 Authorization of the Use of Military Force (AUMF), which the Bush and Obama Administrations have used as the legal basis for its counter-terrorism operations. Given the objectives to the AUMF outlined in the testimony below, how could the proposed changes affect U.S. policy?

    SOURCES:

    http://www.corker.senate.gov/public/index.cfm/video?ID=0b648aac-968c-4aed-8ac6-7f7ca462a0f0

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    1. I see this as an aspect of the legal battle between the unitary executive theory and where Congressional oversight belongs. I think that these revisions would allow for more potential targets by the executive branch, but with the tradeoff of more Congressional oversight.

      For example, this may allow the US to target militants in Mali, who weren't related to 9/11, but only with some sort of oversight/approval from Congress. Under the current AUMF, it is my understanding that the CIA or military couldn't target these people because they cannot be directly linked to 9/11.

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  9. The article from Fox below is one of many that express thoughts about drone use by Israel that are similar to the topics we have discussed in relation to US use. Do you see any differences in the legal/policy concerns of these two cases?

    http://www.foxnews.com/world/2012/12/29/exclusive-inside-track-on-israels-reconnaissance-drones/

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    2. I think you see a little bit of a difference mainly because of the location of the drone strikes. The American strikes are on the other side of the world, while the Israeli strikes are in their own backyards. The Israelis need to deal with all repercussions directly from their strikes, whereas the United States might not have to. Legally, it seems as though the debate is centered around how to carry these out, not whether or not they're legal.

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  11. Has the UN addressed drones at all? Do you see NATO potentially taking drones on as a weapon, or are they too controversial? Do you think NATO using drones would affect US policy at all?

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    1. Considering how large of a say the USA has in NATO policies and how much supply they contribute to the alliance, I think it will happen if the US wants it to. That being said, I don't think it will be used because when NATO is used, it's in a time of more or less traditional war. In these circumstances, it is more acceptable to use F-16s, B-2s, and other traditional aircraft. For example, I don't recall NATO using any drones in the implementation of the no-fly zone in Libya under Resolution 1973. What French, Italian, American, and British forces used were Tomahawk cruise missiles, French Mirage fighters, American warplanes, etc.

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  12. Time recently published an article about the use of drones at home, and how the average citizen could rent a surveillance drone. Is there much domestic policy regarding drones? Particularly on restrictions of citizens using drones?

    The article also mentions an instance where hunters shot a privately owned surveillance drone down in America. How do you think U.S. policy should respond to human on drone violence?

    Here's the link to the article: http://www.time.com/time/magazine/article/0,9171,2135132,00.html

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    1. I personally didn't come across much in the domestic policy of private drone ownership. I'd imagine smaller ones are treated the same as really expensive toys for lack of better terminology, while larger ones might be subject to FAA guidelines or similar rules governing private plane ownership.

      To me, the case of the hunters seems like property damage at the most.

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  13. What do you think are the legal differences in policy between a drone strike in a non-combat zone like Pakistan and sending in a special forces time into a non-combat zone like we did with Osama bin Laden? Does it come down to whether or not we should be involved in a non-combat zone, no matter the method, or is there a significant legal difference between a drone strike or a few boots on the ground?

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    1. I think the difference here was the combination of the scale and US unilateral action. From unofficial accounts and some official ones (see Pervez Musharraf's recent comments about drone) the US receives approval from the Pakistani government to carry out drone strikes. The raid in Abbottabad was not only using multiple SEAL teams, stealth black hawks, Chinooks, and fighter jets on standby, but was done not only without the authorization from the Pakistani government, but without them even knowing about it.

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  14. I'm sorry, this is probably a silly question, but I don't really see how drones are different from any other weapon. Their use may not be fair, but neither are regular bombs or missiles. What exactly is it about drones that you think makes them different from other technologies? Why do you think the US needs specific drone policy, when compared to the amount of deaths the US has caused by other means, the number of drone deaths is miniscule?

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    1. I think it's the concepts of how accurate and precise these drones are along with the "removal" of the humans from the acts of killing. Even with cruise missiles, there is still a warship in the vicinity that needs to be operated in order to deliver the strike. The other thing is that (I think at least) people fear this type of technology essentially becoming a video game of sorts for the drone operators.

      I personally don't consider these too valid but that's just my opinion.

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  15. In class we discussed that the use of drones is not limited to the United States though, it is certainly the leader in the recent drone technologies, other states such as Israel are known to use drone technologies. Israel recently released the intention to move all military aircraft to drone technologies within the next decade. if this becomes the future for a lot of states how does something like this change the policy framework of drones?
    http://www.washingtonpost.com/business/israel-military-official-says-drones-to-replace-piloted-warplanes-within-decades/2013/04/21/81910fc6-aa97-11e2-9493-2ff3bf26c4b4_story.html

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    1. I think that we'll start to see more of an attempt at international regulation depending on how they're used. If they're used for targeted killings by multiple countries, I think we'll see something similar to the initiatives to ban landmines or cluster munitions. If they're just used as surveillance tools or in war time, I think that we'll start seeing air-to-air drone systems and an increase in countermeasures, whether they be shoot-down technology or systems hacking.

      Either way, your guess is as good as mine about the future.

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