Our Unlawful Enemy Combat-Drones and Their Spooky Button-Pushers

If you haven’t already read these two posts at Danger Room, you should do so. It reports and elaborates on the discussion at a Congressional hearing yesterday about whether or not our use of drones is legal.

As you recall, State Department Legal Advisor Harold Koh recently justified the use of the drones because they operated within law of war principles.

First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and

Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

But whether or not you buy that second bit–that we’re not causing excessive civilian losses with our sloppy drone targeting–there’s something Koh didn’t address: how the drones fit into the schema we’ve adopted surrounding who is and is not a legal combatant in this war. From Loyola Law Professor David Glazier’s statement for the hearing:

A complicating factor in the current conflict is the United States’ failure to clearly classify our adversaries within any recognized law of war categorization. If we consider al Qaeda and Taliban fighters as combatants then we can lawfully kill them or detain them for the duration of hostilities based simply on establishing that status. The fundamental privilege that the law of war confers on a combatant in exchange for this vulnerability is immunity from domestic laws, which ordinarily criminalize any act of violence to persons or property. As a result of this immunity, sometimes called “the combatant’s privilege,” their conduct must be judged under the law of war rather than ordinary criminal laws. We have refused, however, to accord members of al Qaeda and the Taliban the basic right to engage in combat against us. We have instead treated any such conduct, such as Omar Khadr’s alleged throwing a grenade at an attacking U.S. soldier, as criminal on the ground that these are not uniformed military personnel legally entitled to engage in hostilities. As a matter of law, this is tantamount to declaring these adversaries to be civilians. Civilians who engage in hostile activity can still be attacked, but only for such time as they are directly participating in hostilities. This classification thus imposes additional limitations on our authority to conduct drone strikes (or any other attacks) against them. There have been suggestions that U.S. targeting may have been expanded, at least for some period of time, to include Afghan drug traffickers who were supporting the Taliban with sale proceeds. This would clearly be unlawful by law of war standards, as would direct attacks on other individuals who are merely performing non-combat support functions, such as financiers, bookkeepers, propagandists, etc.

This issue is equally relevant to who conducts attacks on our behalf. There is no question that uniformed military personnel, whether regular, reserve, or national guard in federal service are lawful combatants entitled to “fly” drone strikes in a recognized armed conflict. But CIA personnel are civilians, not combatants, and do not enjoy any legal right to participate in hostilities on our behalf. It is my opinion, as well as that of most other law of war scholars I know, that those who participate in hostilities without the combatant’s privilege do not violate the law of war by doing so, they simply gain no immunity from domestic laws. Under this view CIA drone pilots are liable to prosecution under the law of any jurisdiction where attacks occur for any injuries, deaths, or property damage they cause. But under the legal theories adopted by our government in prosecuting Guantánamo detainees, these CIA officers as well as any higher level government officials who have authorized or directed their attacks are committing war crimes. [my emphasis]

That is, our argument about drones depends on a double standard that treats Omar Khadr as an illegal enemy combatant who is not entitled to (allegedly) throw a grenade to defend himself, yet pretends that the non-military spooks who are pushing the buttons of the drones should enjoy the immunity of legal militants. And while Washington College of Law Professor Kenneth Anderson thinks the CIA’s use of the drones are legal, he concedes that others disagree.

Some commentators, including eminent laws of war scholars, have suggested that the activities of the CIA operating drones (including from locales in the United States) in the context of the armed conflict in AfPak constitutes unlawful combatancy by CIA personnel.

Anderson expands on his views in one of the Danger Room posts.

Though perhaps the most eloquent description of what is going on here comes in that same Danger Room post, describing the vulnerability in the command chain involved in this targeted (the speaker is the only one in this discussion who also addresses JSOC):

As Mike Innes of Current Intelligence writes Danger Room: “Intelligence and SF/SOF [special operations] targeting in general is a surprisingly ordinary, bureaucratic process. Can’t imagine there’s all that much that’s fundamentally different about the drones approach. If I had to guess, there’s a long chain of individuals who take small decisions that add up to one big one. Everyone’s responsible, so no one’s responsible … which doesn’t mean someone somewhere won’t be covered in sh*t once it hits the fan over all this.”

At a time when the last Administration’s justifications for torture are falling apart and exposing the torturers while insulating the architects of our torture program, we’re blithely ignoring that our use of drones puts us in the same legal gray zone we’ve willfully put al Qaeda in.

34 replies
  1. Marnie says:

    How can the use of drones be legal when the entire military action they are a sub part of is illegal by our own Constitution and under international law?

  2. MadDog says:

    The first (and only) rule of American Exceptionalism: IOKIYAA – It’s OK If You’re An American.

  3. Jim White says:

    There’s also a certain fellow associated with the UN who has an opinion on the legality of drone strikes. From a BBC link in that diary:

    The US told the UN in June that it has a legal framework to respond to unlawful killings. It also said the UN Human Rights Council and the General Assembly have no role in relation to killings during an armed conflict.

    But Mr Alston described that response as “simply untenable”.

    Who is Mr. Alston? He is the UN Special Rapporteur on Extrajudicial Executions.

    Nothing to see here. Move along. Mr. Koh’s is the only opinion that matters…

  4. Leen says:


    After 3 Years in Pretrial Solitary Confinement, Fahad Hashmi Pleads Guilty on Eve of Terror Trial

    Syed Fahad Hashmi has been held in 23-hour-a-day solitary confinement for nearly three years. The government’s case rested on the testimony and actions of an old acquaintance of Hashmi’s who turned government informant after his own arrest. The 30-year-old American citizen’s trial was due to begin today in New York but on Tuesday Hashmi pleaded guilty to one count of material support to a foreign terrorist organization. In a Democracy Now! exclusive we speak with his brother and his former college advisor. [Includes rush transcript]

  5. orionATL says:

    well, well, well

    it took drones and drone technology to raise the issue of that terrible, disguising euphemism “collateral damage” to a debatable issue.

    -but what about the iraqui civilians killed by those thirsting american pilots and gunners,

    – but what about the iraqui civilians killed in the “battle” for falouja, killed with artillery and with williepeter.

    – but what about iraqui and afghani citizens killed by aircraft attacks on wedding parties (for god’s sake) of which there have been dozens reported.

    – and shall we go back to “collateral damage” in vietnam? uh, uh, maybe not. i mean that was a long time ago.

    we can hope “collateral damage” is under attack because it is the concept the military uses to justify killing human beings not involved in war.

    “collaterall damage” is the great absolvent for clumsy, vindictive, ruthless military actions against opponents who operate and fight in a civilian environment

    let’s hope the drone issue keeps the more general issue of killing civilians in order to kill “legal” opponents in the forefront of new thinking about the “law” of war.

  6. ondelette says:

    Was there more you wanted to add with that Harold Koh quote? I’m familiar with his speech, but the “second bit” is just standard laws of war, as is the first “bit”. It lacks the specificity to be evaluated as anything else, it just quotes the rules. A justification must follow, since this is not one, neither is it an argument against.

  7. Frank33 says:

    I think it is now legal for the neo-con secret government to kill anyone or anything for any reason, especially to protect the war profiteering corporate overlords.

    • fatster says:

      Back near the end of the previous thread, I linked to an article about how ICE is treating “illegals”. No killing is being done, apparently, but the model they are using seems to have much in common with what’s been established as SOP in handling “enemy combatants” in Iraq and Afghanistan. In what other area will this model be applied?

  8. Mary says:

    Super post and it’s great to see some of these topics getting broader exposure. I know we’ve talked here about the issue of privilege to kill in “war” but more in passing. Glazier’s effort to highlight some of the problems inherent is really good.

    OT – but I’m waiting for Obama’s reassuring references on military commissions. If we’re lucky, they’ll be as spot on as his condescending asides to the wild left re:offshore drilling.

    Apparently rigs don’t cause leaks. Who knew? Maybe he can call the Coast Guard now and tell them to quit fighting imaginary problems.


  9. klynn says:

    Drones are not proportional.

    Unfortunately, we are in the age that is flippant and states, “Who says war must be proportional?” And the drone was born.

  10. ondelette says:

    I highly recommend reading the written testimony of Mary Ellen O’Connell (actually I would almost always recommend reading something she had written). Among her many points, the strongest is in her introduction:

    Combat drones are battlefield weapons. They fire missiles or drop bombs capable of inflicting very serious damage. Drones are not lawful for use outside combat zones. Outside such zones, police are the proper law enforcement agents and police are generally required to warn before using lethal force. Restricting drones to the battlefield is the most important single rule governing their use. Yet, the United States is failing to follow it more often than not. At the very time we are trying to win hearts and minds to respect the rule of law, we are ourselves failing to respect a very basic rule: remote weapons systems belong on the battlefield.

    • JTMinIA says:

      I like her a lot, too, but she really needs to keep her politics/policy views separate from her legal opinions. When she mixes the former into an answer that was supposed to be the latter (only), it really hurts her case. There were many times when I was watching her testify that I found myself nodding and screaming at the same time – nodding because I agreed and screaming because she was making it so easy for anyone who disagrees with her to ignore her.

  11. scribe says:

    Seems to me the same principles would apply to any civilians who get involved in the action. I seem to remember there were stories to the effect that while posing as a journalist for Faux, former Marine Oliver North was involved in a little bit of shooting brown people, IIRC in Iraq, with his taking more than a journalist’s part in theaction. Kind of breaching tht fourth wall, if you will.

    It would be not just poetic, but also justice, no?

  12. Sara says:

    Very strong recommendation of a fascinating read — P.W. Singer’s “Wired for War: The Robotics Revolution and Conflict in the 21st Century,” Penguin, 2009. Now in Paperback.

    Drones are just the first generation of what is in development, production, and moving into the US Military System. Singer moves about and visits all the labs, experiment platforms, talks with the developers, in particular those who would place some elements of artificial intelligence into post modern weapons systems, Command and Control, and asks the appropriate questions about law and whether or not a robot, perhaps one partially controlled by IA, can have moral sensibility, conscience, and/or be governed by law. Singer makes the point that virtually no one has asked Congress, other Policy forums, or a Presidential contender about this issue — ever. And not asked at all — the Pentagon’s industrial developers are certainly not engaging on the moral or legal levels.

    Various versions of drones have been in the US Military’s inventory since the Balkan Wars in the 90’s, with the development coming in the decade before that. Initially they were visualized as an “over the trees” set of eyes (first versions used video tape that had to be recovered and replayed)that might be useful in sighting artillary. Something like the hot air balloons used in the Civil War or the gas balloons during World War One, but something that could be targeted. Less than 20 years later we have systems with GPS onboard, deep memory that can reveal details of a point of interest over years or months, ability to integrate all relevant intelligence for operators, and operators who work half a world away who depend on systems intelligence (maybe 75% of the way to IA) to decide to shoot. It is quite an evolution over less than 20 years. Much more than Drones, according to Singer, is in the pipeline. It all needs a broad picture debate, but thus far it has mostly gotten the gee wizz approach from those who believe each new gizmo that can be deployed by warriors may be the silver bullet. So has it ever been since ancient man discovered the efficency of the sling-shot as a way of casting stones.

      • Sara says:

        Clarification? IA?

        It got flipped — Artificial Intelligence is what was my intent — AI.

        jeaton adds — “The only difference between a bomb-wearing terrorist and the drone pilot is the operating budget!”

        I think there is a huge difference, and it is very important to understand that difference. A terrorist set on suicide has submitted to religious discipline such that he or she believes in a cause worthy of personal death. The suicider believes in instant rewards in the next world — all those virgins, or feasts set in marble palaces or whatever.

        The drone operator is hardly required to believe anything. Any reward for excellent joy stick performance will be bureaucratic, a promotion perhaps, increase in rank, or pay. Any decrease in skills will result in being edged out of action by superior joy stick operators.

        This year, 2010, the US Airforce will train more Joy Stick operators than it will pilots. It is the cross-over year. Training costs are much less, the cost of drones is peanuts compared to a high performance Jet Fighter — something like 350 million a copy to about 2 million per. Costs of Logistics for deployment are chicken-feed compared with establishing a far flung air base, and staffing it. Plan is now to build “drone ports” on ships, that can be deployed anywhere blue water exists. Research indicates totally different gender and personality traits make for good drone operators compared to pilots. Women apparently are more competent on the average, and bravo pilot agressiveness is a downer for drone operators. Macho “right stuff” stuff is out.

        Gramps409 says…”Mr. Singer’s enthusiasm seems palpable, “warrior robots” indeed. The perfect toys for tomorrows warriors who grew up mastering computerized war games.”

        I would not describe Singer’s book as enthusiasm — I would suggest he sees robotic warfare as a near term reality that has not at all been thought out. This is particularly the case in his chapter that involves looking into the assumptions built into any application of artificial intelligence to warrior robots.

    • gramps409 says:

      The LA Times published an op/ed piece by Singer in January. Here is the link:

      This is my published response:
      So, “Science fiction is coming true on our battlefields?” “Killer applications” still in their “Model T” phase of development, “fighting on America’s behalf?” Mr. Singer’s enthusiasm seems palpable, “warrior robots” indeed. The perfect toys for tomorrows warriors who grew up mastering computerized war games.

      Why am I not encouraged by Singer’s ‘not to worry’ about the ‘Terminator showing up at my door?’ As a matter of fact, that is precisely what I am worried about, except that I don’t expect a Terminator. More likely the latest mutation of Blackwater.

      Once upon a time, Americans were singing praises to the Winchester repeating rifle, “The Gun That Won The West” believing that it would be instrumental in bringing about a more peaceful world. If history is any guide, its only a matter of time until the descendants of the Americans who paid for these “killer applications” and pick up the tab for the privatized police forces, will find that an unwelcome guest has indeed ‘showed up at their door.’

  13. timbo says:

    Thanks for keeping the pressure up on the legal nonothings who just want to use power, the military, technology, to kill and maim people with impunity. This is what war crimes and war criminals are all about–double standards. And that’s what many of these people, these sociopaths, are trying to make legal. It’s got to stop. It is really, really a sad state that the law and thinking on the law in the United States has fallen so low and so far. John Yoo and Judge Bybee must be doing jigs in their secret torture bungalows–this is the legacy that Busholini and his power-as-the-law regime have left us in.

  14. gramps409 says:

    Remotely operated drones, coming to a neighborhood near you, but first, further testing in the drug WAR in Mexico.

  15. workingclass says:

    If our corporate masters want to drop bombs on little children who are sleeping in their pajamas and blow their little arms and legs off they don’t want to be restrained by some stupid law. If they want to torture people continuously for years and years and never charge them with a crime and imprison them forever they certainly don’t want some nobody telling them its wrong. If our corporate masters want to bombard, invade and occupy entire sovereign nations, without provocation or purpose,killing, maiming, torturing and imprisoning its citizens, they don’t want to be lectured about some bull shit constitution that was written before their time.


  16. jeaton says:

    The only difference between a bomb-wearing terrorist and the drone pilot is the operating budget!

  17. Blutodog says:

    The Pentagon sees the rest of the Planet’s surface beyond the US as a free fire zone where they can play video war games with live ammo. Disgusting.

  18. aardvark says:

    Well, finally, someone brought up bomb-wearing terrorist. And the bomb-wearing terrorist targets whom, specifically? Well, in most cases, no one other than innocent civilians. And that is where the equivalence stops. At least where the drone attacks occur, an attempt is made to target the attack on someone relevant and causally related. That someone who knows he is targeted chooses to be with his wife and children, and they are collateral damage, he, more than the drone controller, is responsible for their death.

    This is an asymmetrical war, and as such we have not yet developed adequate rules of engagement, but it seems to me there is an on-going good-faith effort to do so.

  19. aardvark says:

    Wow, Sara, what a cheap-shot. “The drone operator is hardly required to believe in anything . . . .” Well, maybe the drone pilot really believes she is doing a service for her country. Imagine that?? And I used the feminine pronoun intentionally, as my information is that one of the best drone pilots is a woman.

    So, machoism is out, and competency and presumably, feminine sensitivity is in, where robotic war is concerned. Makes for a really interesting mix, doesn’t it?

    • Sara says:

      “Wow, Sara, what a cheap-shot. “The drone operator is hardly required to believe in anything . . . .” Well, maybe the drone pilot really believes she is doing a service for her country. Imagine that?? And I used the feminine pronoun intentionally, as my information is that one of the best drone pilots is a woman.

      So, machoism is out, and competency and presumably, feminine sensitivity is in, where robotic war is concerned. Makes for a really interesting mix, doesn’t it?”

      I think the initial point here was a comparison between a suicide vest wearing bomber and a drone operator.

      I seriously doubt if you can convince a young person to commit suicide as part of a strategy (to create fear via terrorism, for instance) without the ability to depend on religous belief and commitment or an all inclusive political ideology on which to build the suicide sacrifice. The essentially psychological conditioning that prepares a suicider for deployment and death is built on such all encompassing beliefs.

      In contrast — what does a Drone Operator need to believe? There are no essential requirements. Yes — one could believe it a Patriotic Job, but that isn’t necessary at all. Do people who play video games have common beliefs? I don’t think that at all necessary to winning. The only common characteristic might just be superior hand-eye coordination.

      The issue PW Singer raises however is a little different. He makes the point that successive generations of drone operators (or in fact any kind of robot operators) are making decisions using artificial intelligence. In essence, Artificial Intelligence is created by coding into decision processes a quite large range of factors generated over time — factors related to success of mission, factors seemingly causing mission failure, and much else, and over many similar missions evaluates these causal factors, and based on this collective experience, removes them from the frame of reference the real time operator needs to apply to a given mission.

      In a crude sense, I think this application of Artificial Intelligence is somewhat parallel to the problems Toyota is currently facing. They have put considerable AI into software in their cars controling such things such as braking, acceleration and the like. Some aspects of the driver’s judgment, driving experience, or what some might call road-feel in traffic conditions, have been taken out of the driver’s control, and built into softwear. In many ways, such systems may make driving safer, more of a pleasure, but when the driver’s reactions cannot override the AI, that may not be the outcome.

      In recent weeks an interesting legal case in this vein has emerged in Minnesota. Last year a driver was convicted of reckless driving, endangerment, and was sent to jail for four years. Defense was the car accelerated rather than braked when approaching a busy intersection, with deadly consequences. Turns out it was one of the cars Toyota has since recalled. The convicted driver is asking to be let out of prison and allowed to persue a new trial given current public evidence regarding that particular Toyota model. The difference between reckless driving leading to deadly outcomes, and inappropriate application of AI to normal driving where the AI cannot be overridden, may well be the issue in this case.

  20. gramps409 says:

    aardvark wrote:
    “Wow, Sara, what a cheap-shot. “The drone operator is hardly required to believe in anything . . . .” Well, maybe the drone pilot really believes she is doing a service for her country. Imagine that??” [end quotes]

    Its very easy to “imagine that.” Beware the ‘beliefs’ of uninitiated males. The rationalizations for killing they come up with are a matter of historical record. Often as simple as ‘following orders.’

  21. lduvall says:

    I wonder how the american public would react if the “proportionality” (aka collateral damage) levels were the same here in the US when the cops killed a bad guy, and a dozen or two innocent bystanders????

    But then, as has been well documented, “they” don’t count, so “we” won’t either.

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