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All Sides Agree There Is Excessive Secrecy Surrounding Targeting Of US Citizens

The targeted execution of Anwar al-Awlaki struck different people along the political spectrum in the United States in many different ways, but it has been heartening most all have recognized it as a seminal moment worthy of dissection and contemplation. Despite all the discussion afforded the execution of Awlaki in the last few days, it cannot be emphasized enough how impossible it is to have a completely meaningful discussion on the topic due to the relentless blanket of secrecy imposed by the United States government. Before I get into the substantive policy and legal issues surrounding the targeting and assassination of American citizens, which I will come back to in a separate post, a few words about said secrecy are in order.

The first to note, and complain of, the strange secrecy surrounding not just the kill listing of Awlaki, but the entire drone assassination program, was Marcy right here in Emptywheel. Within a couple of hours of the news of the Awlaki strike, she called for the release of the evidence and information serving as the Administration’s foundation for the extrajudicial execution of an American citizen and within a couple of hours of that, noted the ironic inanity of the pattern and practice of the one hand of the Obama Administration, through such officials as Bob Gates, James Clapper and Panetta trotting out “state secrets” to claim drone actions cannot even be mentioned while the other hand, through mouthpieces such as John Brennan are out blabbing all kinds of details in order to buck up Administration policy.

Now, you would expect us here at Emptywheel to vociferously complain about the rampant secrecy and hypocritical application of it by the Executive Branch, what has been refreshing, however, is how broad the spectrum of commentators voicing the same concerns has been. Glenn Greenwald was, as expected, on the cause from the start, but so too have voices on the other side of the traditional spectrum such as the Brookings Institute’s Benjamin Wittes, to former Gang of Eight member and noted hawk Jane Harman, and current Senate Armed Services Chairman Carl Levin and Daphne Eviatar of Human Rights First.

But if there were any doubt that it was just left leaning voices calling for release of targeting and legal foundation information, or only sources such as Emptywheel or the New York Times pointing out the hypocrisy and duplicity with which the Administration handles their precious “state secret”, then take a gander at what former Bush OLC chief Jack Goldsmith had to say Monday, after a weekend of contemplation of the issues surrounding the take out of Awlaki:

I agree that the administration should release a redacted version of the opinion, or should extract the legal analysis and place it in another document that can be released consistent with restrictions on classified information.

I have no doubt that Obama administration lawyers did a thorough and careful job of analyzing the legal issues surrounding the al-Aulaqi killing. The case for disclosing the analysis is easy. The killing of a U.S. citizen in this context is unusual and in some quarters controversial. A thorough public explanation of the legal basis for the killing (and for targeted killings generally) would allow experts in the press, the academy, and Congress to scrutinize and criticize it, and would, as Harman says, permit a much more informed public debate. Such public scrutiny is especially appropriate since, as Judge Bates’s ruling last year shows, courts are unlikely to review executive action in this context. In a real sense, legal accountability for the practice of targeted killings depends on a thorough public legal explanation by the administration.

Jack has hit the nail precisely on the head here, the courts to date have found no avenue of interjection, and even should they in the future, the matter is almost surely to be one of political nature. And accountability of our politicians depends on the public havin sufficient knowledge and information with which to make at least the basic fundamental decisions on propriety and scope. But Mr. Goldsmith, admirably, did not stop there and continued on to note the very hypocrisy and duplicity Marcy did last Friday:

We know the government can provide a public legal analysis of this sort because presidential counterterrorism advisor John Brennan and State Department Legal Advisor Harold Koh have given such legal explanations in speeches, albeit in limited and conclusory terms. These speeches show that there is no bar in principle to a public disclosure of a more robust legal analysis of targeted killings like al-Aulaqi’s. So too do the administration’s many leaks of legal conclusions (and operational details) about the al-Aulaqi killing.

A full legal analysis, as opposed to conclusory explanations in government speeches and leaks, would permit a robust debate about targeted killings – especially of U.S. citizens – that is troubling to many people. Such an analysis could explain, for example, whether the government believed that al-Aulaqi possessed constitutional rights under the First, Fourth, Fifth or other amendments, and (assuming the government concluded that he possessed some such rights) why the rights were not implicated by the strike. It could also describe the limits of presidential power in this context.

The Obama administration frequently trumpets its commitment to transparency and the rule of law. The President and many of his subordinates were critical of what they deemed to be unnecessarily secretive Bush administration legal opinions, and they disclosed an unprecedented number of them, including many classified ones. Now is the time for the administration to apply to itself a principle that it applied to its predecessor.

Again, exactly right. From Marcy Wheeler, to Gang of Eight members, to Jack Goldsmith, the voice is both clear and consistent: The Obama Administration needs to come clean with as much of the legal and factual underpinnings as humanly possible short of compromising “means and methods” that truly are still secret. That would be, by almost any account, a lot of information and law with which the American public, indeed the world, could not only know and understand, but use to gauge their votes and opinions on. Doing so would make the United States, and its actions, stronger and more sound.

In the second part of this series, which I should have done by tomorrow morning sometime, I will discuss what we know, and what we don’t know, about the legal and factual underpinnings for targeted killing of US citizens, and sort through possible protocols that may be appropriate for placement of a citizen target and subsequent killing.

UPDATE: As MadDog noted in comments, Jack Goldsmith has penned a followup piece at Lawfare expounding on the need for release of the foundational underpinnings of how an American citizen such as Alawki came to be so targeted. Once again, it is spot on:

First, it is wrong, as Ben notes, for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications. It is wrong because it is illegal. It is wrong because it damages (though perhaps not destroys) the diplomatic and related goals of covertness. And it is wrong because the Executive branch seems to be trying to have its cake (not talking about the program openly in order to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking promiscuously to get credit for the operation and to portray it as lawful). I do not know if the leaks are authorized in some sense or not, or where in the executive branch they come from, or what if anything the government might be doing to try to stop them. But of course the president is ultimately responsible for the leaks. One might think – I am not there yet, but I understand why someone might be – that the double standard on discussing covert actions disqualifies the government from invoking technical covertness to avoid scrutiny.

Second, there is no bar grounded in technical covertness, or in concerns about revealing means and methods of intelligence gathering, to revealing (either in a redacted opinion or in a separate document) the legal reasoning supporting a deadly strike on a U.S. citizen. John Brennan and Harold Koh have already talked about the legality of strikes outside Afghanistan in abstract terms, mostly focusing on international law. I don’t think much more detail on the international law basis is necessary; nor do I think that more disclosure on international law would do much to change the minds of critics who believe the strikes violate international law. But there has been practically nothing said officially (as opposed through leaks and gestures and what is revealed in between the lines in briefs) about the executive branch processes that lie behind a strike on a U.S. citizen, or about what constitutional rights the U.S. citizen target possesses, or about the limitations and conditions on the president’s power to target and kill a U.S. citizen. This information would, I think, matter to American audiences that generally support the president on the al-Aulaqi strike but want to be assured that it was done lawfully and with care. The government could easily reveal this more detailed legal basis for a strike on a U.S. citizen without reference to particular operations, or targets, or means of fire, or countries.

Listen, we may not always agree with Jack here, and both Marcy and I have laid into him plenty over the years where appropriate; but credit should be given where and when due. It is here. And, while I am at it, I would like to recommend people read the Lawfare blog. All three principals there, Ben Wittes, Goldsmith and Bobby Chesney write intelligent and thoughtful pieces on national security and law of war issues. No, you will not always agree with them, nor they with you necessarily; that is okay, it is still informative and educational. If nothing else, you always want to know what the smart people on the other side are saying.

[Incredibly awesome graphic by the one and only Darkblack. If you are not familiar with his work, or have not seen it lately, please go peruse the masterpieces at his homebase. Seriously good artwork and incredible music there.]

Relentless Expansion of the Great War on Terror Despite Achieving Primary Goal

Predator drone (US Air Force photo)

It is widely acknowledged that with the death of Osama bin Laden and a number of other high level leaders, al Qaeda is severely crippled in its one-time haven of Pakistan.  Rather than acknowledging this victory in the primary objective of Authorization for the Use of Military Force in Afghanistan (passed on September 18, 2001 in response to the 9/11 attacks) and beginning to phase out the War on Terror, the US instead is finding a new target in Pakistan and building bases from which to launch even more drone attacks in Africa and the Arabian Peninsula, moves which amount to a significant expansion of the war effort.

In Pakistan, the Washington Post reports that the US is applying extreme pressure on Pakistan to dissolve the relationship between the ISI (Pakistan’s intelligence service) and the Haqqani network:

The Obama administration has sharply warned Pakistan that it must cut ties with a leading Taliban group based in the tribal region along the Afghan border and help eliminate its leaders, according to officials from both countries.

In what amounts to an ultimatum, administration officials have indicated that the United States will act unilaterally if Pakistan does not comply.

This threat of unilateral action is unlikely to be seen as mere bluster since the hit on bin Laden was unilateral.

It turns out that the Haqqani network is yet another example of a group the US helped to form only to become one of its targets:

The organization was formed by Jalaluddin Haqqani as one of the resistance groups fighting the Soviet occupation of Afghanistan in the 1980s, with U.S. and Pakistani assistance. In the Afghan civil war that followed, Haqqani sided with the Taliban forces that took power in Kabul in 1996. His fighters fled after the Taliban overthrow in late 2001 to Pakistan, where U.S. intelligence officials think they are in close coordination with al-Qaeda forces.

Pakistani intelligence maintained close connections to the network, now operationally led by Sirajuddin Haqqani, the founder’s son, as a hedge against the future in Afghanistan.

The Post article goes on to speculate that the Haqqani network’s attack on the US embassy in Kabul last week may have been final act to drive such strong language coming from Washington.

As if the declaration of a new enemy in Pakistan worthy of unilateral US action were not enough in the escalation of US war efforts, we also learn from the Washington Post that a new network of bases for drones is being built:

The Obama administration is assembling a constellation of secret drone bases for counterterrorism operations in the Horn of Africa and the Arabian Peninsula as part of a newly aggressive campaign to attack al-Qaeda affiliates in Somalia and Yemen, U.S. officials said.

One of the installations is being established in Ethi­o­pia, a U.S. ally in the fight against al-Shabab, the Somali militant group that controls much of that country. Another base is in the Seychelles, an archipelago in the Indian Ocean, where a small fleet of “hunter-killer” drones resumed operations this month after an experimental mission demonstrated that the unmanned aircraft could effectively patrol Somalia from there.

The U.S. military also has flown drones over Somalia and Yemen from bases in Djibouti, a tiny African nation at the junction of the Red Sea and the Gulf of Aden. In addition, the CIA is building a secret airstrip in the Arabian Peninsula so it can deploy armed drones over Yemen.

Recall that just last week, the Obama administration was depicted as being in an internal debate on the legality of expanding the drone war outside of Pakistan to these very areas where the bases are being built.  Considering that the bases are now already under construction, last week’s “debate” story would appear to have been nothing more than a mere academic exercise whose outcome had already been determined.

Only a fool would bet against Washington choosing more war in more locations.

Should David Petraeus Be Replaced With a Computer?

Today’s Washington Post brings an update on the work being done by the Pentagon to develop artificial intelligence to the point that a drone can be automated in its decision on whether to kill.  The article points out that currently, when the CIA is making kill decisions on drone missions, that decision falls to the director, a position recently taken over by retired General David Petraeus.  In other words, then, the project appears to be an effort to develop a computer that can replace David Petraeus in decision-making.

Of course, this prospect raises many issues:

The prospect of machines able to perceive, reason and act in unscripted environments presents a challenge to the current understanding of international humanitarian law. The Geneva Conventions require belligerents to use discrimination and proportionality, standards that would demand that machines distinguish among enemy combatants, surrendering troops and civilians.

More potential problems:

Some experts also worry that hostile states or terrorist organizations could hack robotic systems and redirect them. Malfunctions also are a problem: In South Africa in 2007, a semiautonomous cannon fatally shot nine friendly soldiers.

The article notes that in response to issues surrounding the development of autonomy for weapons systems, a group calling itself the International Committee for Robot Arms Control (ICRAC) has been formed.  On the ICRAC website, we see this mission statement:

Given the rapid pace of development of military robotics and the pressing dangers that these pose to peace and international security and to civilians in war, we call upon the international community to urgently commence a discussion about an arms control regime to reduce the threat posed by these systems.

We propose that this discussion should consider the following:

  • Their potential to lower the threshold of armed conflict;
  • The prohibition of the development, deployment and use of armed autonomous unmanned systems; machines should not be allowed to make the decision to kill people;
  • Limitations on the range and weapons carried by “man in the loop” unmanned systems and on their deployment in postures threatening to other states;
  • A ban on arming unmanned systems with nuclear weapons;
  • The prohibition of the development, deployment and use of robot space weapons.

 

In the end, the argument comes down to whether one believes that computer technology can be developed to the point at which it can operate in the war theater with autonomy.  The article cites experts on both sides of the issue.  On the positive side is Ronald C. Arkin, whose work is funded by the Army Research Office.  Believing the issues can all be addressed, Arkin is quoted as saying “Lethal autonomy is inevitable.”

 

On the negative side of the argument is Johann Borenstein, head of the Mobile Robotics Lab at the University of Michigan.  Borenstein notes that commercial and university laboratories have been working on the issue for over 20 years, and yet no autonomy is possible yet in the field.  He ascribes this deficiency as due to the inability to put common sense into computers: “Robots don’t have common sense and won’t have common sense in the next 50 years, or however long one might want to guess.”

 

As HAL said in 2001: A Space Odyssey: “Dave, I’m scared.”

State Department, DoD Argue Over “Rules” for Drone Targets Outside Pakistan

Fire away!

Predator drone firing Hellfire missile. (Wikimedia Commons)

Ed: Now that he’s on the mend from heart surgery, Jim is going to do some posting at EW. Welcome, Jim!

Charlie Savage notes in today’s New York Times that the Departments of State and Defense are engaged in an argument over the choosing of targets for drone attacks outside Pakistan. The primary point of contention centers on whether only high level al Qaeda figures in places like Yemen and Somalia can be targeted or if even low level operatives in these areas can be targeted there, just as they are in Pakistan.

Arguing for a more constrained approach is Harold Koh at the State Department:

The State Department’s top lawyer, Harold H. Koh, has agreed that the armed conflict with Al Qaeda is not limited to the battlefield theater of Afghanistan and adjoining parts of Pakistan. But, officials say, he has also contended that international law imposes additional constraints on the use of force elsewhere. To kill people elsewhere, he has said, the United States must be able to justify the act as necessary for its self-defense — meaning it should focus only on individuals plotting to attack the United States.

A more wide open approach is favored by Jeh Johnson at the Pentagon:

The Defense Department’s general counsel, Jeh C. Johnson, has argued that the United States could significantly widen its targeting, officials said. His view, they explained, is that if a group has aligned itself with Al Qaeda against Americans, the United States can take aim at any of its combatants, especially in a country that is unable or unwilling to suppress them.

Sensing an opportunity to add to his “tough on terrorism” credentials, Senator Lindsey Graham (R-SC) can’t help but join in the DoD’s line of argument: Read more

The Fog of Obamawar In Hi-Def 1080p

David S. Cloud has what can only be described as an amazing piece in today’s Los Angeles Times on the sobering reality and cold hearted bloodlust of remote drone warfare. Cloud’s story tells, in gripping, fully fleshed from all angles, detail the story of an United States killer drone operation gone awry.

The Americans were using some of the most sophisticated tools in the history of war, technological marvels of surveillance and intelligence gathering that allowed them to see into once-inaccessible corners of the battlefield. But the high-tech wizardry would fail in its most elemental purpose: to tell the difference between friend and foe.

This is the story of that episode. It is based on hundreds of pages of previously unreleased military documents, including transcripts of cockpit and radio conversations obtained through the Freedom of Information Act, the results of two Pentagon investigations and interviews with the officers involved as well as Afghans who were on the ground that day.

Before you go any further, go read Cloud’s full article. Seriously, do it now, because the details of the story – of just this one singular drone strike – are too many and Cloud lays them out to well for me to pick, choose and substitute.

Suffice it to say, by the most conservative casualty report, by the US military naturally, there were at least 16 dead and 12 critically wounded. For which General Stanley McChrystal gave a verbal apology and the oh so benevolent United States government paid blood money stipends of $2,900 for the dismembered and disfigured survivors and $4,800 for the dead. At $76,800, the combined lives of 16 innocent dead citizens, blown to bits in their own country, is about the cost of one of the Hellfire missiles fired by a Predator drone. The cold and celebratory technician soldiers at the drone pilot center in Nevada, and video review center in Florida, played their war games on video monitors that are worth more than the United States assigns as the value of a developed human life in Afghanistan.

So much of the angst (though certainly not all) from the legal liberal left, whether here at Emptywheel, from our friend Glenn Greenwald, or others, centers on promises and inferences that Barack Obama Read more

Obama/Bush DOJ Update to OLC Christmas Carol

Earlier I linked to and posted the oh so hilarious (if you appreciate the humor in the supposed creme de la creme of government attorneys laughing about breaking the law and violating citizens’ rights) Christmas carol drafted by the DOJ’s Office of Legal Counsel (OLC) all the way back during the Carter Administration. It seems to be making a comeback through a post at Volokh Conspiracy.

Well, through what can only be described as a Christmas miracle, our very own Mary has “discovered” the new version, as updated by the Obama/Bush OLC:

You’d better watch out,
look up in the sky,
You’d better not doubt;
Better say your good bye.
Santa Claus is droning
Your home.

He’s paying out bounties,
For kids he pays five,
He’s razoring genitals
And burying alive.
Santa Claus is beating
the prone

He hears you in your cages,
Videotapes your screams and moans,
After sharing with Senate pages,
Then he’ll freeze you all alone

So–you mustn’t believe
In Justice tonight.
On Christmas Eve
She’s lost more than her sight
The OLC will help with hiding
Your bones.

As Mary noted, “Those jokers at OLC. At least they enjoy their work”. Indeed. With “wise men” like John Yoo, Jay Bybee and Steve Bradbury, what could go wrong?

Tapper Throws Softball on Drones to Panetta

Jake Tapper’s interview with Leon Panetta has made a lot of news already and he deserves credit for getting the CIA Director on film in the first place. But one question he asked did more harm than good. Tapper asked Panetta to assure us that the US use of drones was legal. But he limited that question to Pakistan.

Tapper: Will you give us your personal assurance that everything the CIA is doing in Pakistan is compliant with US and international law?

Panetta: There’s no question that we are abiding by international law, and the law of war.

As the UN report on targeted killing (which Tapper references in setting up his question) makes clear, the problem with drones is not so much their use against combatants in active war zones (as the borderlands of Pakistan, at least, is).

79. The use of drones for targeted killings has generated significant controversy. Some have suggested that drones as such are prohibited weapons under IHL because they cause, or have the effect of causing, necessarily indiscriminate killings of civilians, such as those in the vicinity of a targeted person.142 It is true that IHL places limits on the weapons States may use, and weapons that are, for example, inherently indiscriminate (such as biological weapons) are prohibited.143 However, a missile fired from a drone is no different from any other commonly used weapon, including a gun fired by a soldier or a helicopter or gunship that fires missiles. The critical legal question is the same for each weapon: whether its specific use complies with IHL. [my emphasis]

Rather, the problem is using drones in places like Somalia and Yemen, where we are not at war.

86. Outside its own territory (or in territory over which it lacked control) and where the situation on the ground did not rise to the level of armed conflict in which IHL would apply, a State could theoretically seek to justify the use of drones by invoking the right to anticipatory self-defence against a non-state actor.147 It could also theoretically claim that human rights law’s requirement of first employing less-than-lethal means would not be possible if the State has no means of capturing or causing the other State to capture the target. As a practical matter, there are very few situations outside the context of active hostilities in which the test for anticipatory self-defence – necessity that is “instant, overwhelming, and leaving no choice of means, and no moment of deliberation”148 – would be met. This hypothetical presents the same danger as the “ticking-time bomb” scenario does in the context of the use of torture and coercion during interrogations: a thought experiment that posits a rare emergency exception to an absolute prohibition can effectively institutionalize that exception. Applying such a scenario to targeted killings threatens to eviscerate the human rights law prohibition against the arbitrary deprivation of life. In addition, drone killing of anyone other than the target (family members or others in the vicinity, for example) would be an arbitrary deprivation of life under human rights law and could result in State responsibility and individual criminal liability. [my emphasis]

So by phrasing the question as he did, specifically limiting it to one of the few places where it is legal, Tapper invited Panetta to claim legality for the wider drone program.

Now, Tapper prefaces this question by noting that Panetta can’t discuss classified programs, perhaps suggesting that the drone attacks in countries with which we are not at war are a secret (though our first strike in Yemen was widely reported in 2002!).

But if the effect of the question, as asked, is to allow the government to specifically obscure the legal issues, is it really worth asking?

Killer Drones Coming To America!

Like all new fads that start overseas and eventually make their way here to the US as the next “new thing”, drones are on their way to our friendly skies. From AP via Google News:

Unmanned aircraft have proved their usefulness and reliability in the war zones of Afghanistan and Iraq. Now the pressure’s on to allow them in the skies over the United States.

The Federal Aviation Administration has been asked to issue flying rights for a range of pilotless planes to carry out civilian and law-enforcement functions but has been hesitant to act. Officials are worried that they might plow into airliners, cargo planes and corporate jets that zoom around at high altitudes, or helicopters and hot air balloons that fly as low as a few hundred feet off the ground.

On top of that, these pilotless aircraft come in a variety of sizes. Some are as big as a small airliner, others the size of a backpack. The tiniest are small enough to fly through a house window.

Exciting! Cops want to use them to catch speeders, monitor traffic and track suspects (that is pretty much all of us). Border Patrol and Sheriff Joe Arpaio want to use them to chase down the brown (skinned that is). Fed Ex wants them so they don’t have to actually pay pilots. And the NSA wants them to spy on “suspicious” people (like the writers on this blog). Hey, it’s all good; what’s the loss of a little privacy when it comes to protecting America?

There is a tremendous pressure and need to fly unmanned aircraft in (civilian) airspace,” Hank Krakowski, FAA’s head of air traffic operations, told European aviation officials recently. “We are having constant conversations and discussions, particularly with the Department of Defense and the Department of Homeland Security, to figure out how we can do this safely with all these different sizes of vehicles.

Excellent! Because I will feel a lot better when the DOD and DHS have the “civilian airspace” saturated with their freaking drones; won’t you? Of course you will. And we are on the way there too. From Government Executive:

The Homeland Security Department expanded the use of unmanned drones along the U.S.-Mexico border this week, flying for the first time this sort of advanced technology in west Texas.

The Predator B unmanned aerial vehicle is providing support to U.S. Customs and Border Protection to help interdict drug smugglers and detect people trying to enter the United States illegally, key lawmakers said.

Texas lawmakers have been clamoring for years to have an unmanned drone assist in border security operations, but the move had been delayed by bureaucratic wrangling between DHS and the Federal Aviation Administration. Drone flights along the Southwest border had been limited to regions in Arizona and New Mexico.
……
By putting eyes in the sky along the Rio Grande, we will gather real-time intelligence on the ground to augment the good work of federal, state and local law enforcement….

Well, so drones are here among us, at least those of us near the Mexican border; and they are here to stay. Government drones are going to be ever more pervasive and ubiquitous throughout the entirety of the country if the law and order types in the federal, state and local governments have anything to say about it. And they will have their say; count on it. Swell, eh?

So, with all of the Afghani, Pakistani and Iraqi wedding parties that have been taken out by US Predator drone strikes, how long before they hit one of our precious wedding celebrations right here in the homeland of the good old “real America”? What will the NeoCon wingnuts say when it hits their own chosen ones?

[Incredibly awesome graphic by the one and only Darkblack. If you are not familiar with his work, or have not seen it lately, please go peruse the masterpieces at his homebase. Seriously good artwork and incredible music there.]

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.

Read more