Are Drone Strike Operators “Unlawful Combatants”?

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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24 Responses

  1. Michael Drew says:

    But if they are explicitly authorized to the highest levels, then surely that is level where accountability rests under the law?Report

    • Michael Drew in reply to Michael Drew says:

      I understand the argument better seeing it in full:

      “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,” he said.

      “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,” Glazier continued. “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.”Report

    • Michael Drew in reply to Michael Drew says:

      ….Didn’t mean to suggest the higher levels of culpability vitiate the lower.Report

  2. Jaybird says:

    Makes sense to me.

    We may have to hammer out the whole “how many unlawful combattants are either side allowed” thing… like, if there is an ununiformed suicide bomber, then we get one unmanned drone attack kinda deal.

    But this makes huge sense to me.Report

  3. Scott says:

    Presumably the US gov’t has permission from the Pakistani gov’t to make the strikes so where is the problem?Report

  4. Michael Drew says:

    Scott raises the right point – were it not for the “permission” we have to carry this sort of thing out in Pakistan, the real legal issue with the war there would simply be that fact: making war in a country, whether wearing uniforms or otherwise, without any cause or international legitimacy is pretty much the sine qua non of governmental breaking of international law. However, the Pakistani permission is tacit in the international context, so this causes us to have to deny we are doing this. So the fact that we are doing so is (again, in or out of uniforms) probably illegal. Now, obviously one can certainly raise the question whether any government has the right to give another one “permission” to kill its citizens without due process, and individual Pakistanis have likely not all given permission for their relatives to be killed. So again in that sense, this killing is likely illegal. But for that illegality to have legal meaning (I believe, please correct me), the offended party has to take it up in an international legal forum of some sort, which is where the fact of the non-publicly expressed permission comes back in. I don’t know what their standing is in any international legal forum, however. ICC?Report

    • greginak in reply to Michael Drew says:

      @Michael Drew, “Permission” from a government does not mitigate the lawfulness of killing innocents. Nor does any other countries permission relate to whether we use non-uniformed combatants and so forth. Our morality is determined by our actions primarily, not what others do.Report

      • Michael Drew in reply to greginak says:

        @greginak, Morality and legality are two different things. And the legality of the killing of civilians is just the question I was raising. What recourse any innocents killed have if their government has given permission for them to be killed (even if inadvertently, though since any of the ostensible ‘targets’ haven’t been tried and found guilty either, they would also have equal right to any such recourse) is exactly the question I’m asking.Report

    • @Michael Drew, True, but we should keep in mind that many of those who we’ve detained and prosecuted as “unlawful enemy combatants” were allegedly acting with the consent of the then-extant government of Afghanistan (aka the Taliban).

      I take the point to be less one of whether drone strikes are of necessity war crimes, and more one of whether drone strikes controlled by the CIA are of necessity war crimes under the regime we’ve set up.

      Also, at least with regard to Somali drone strikes, I’m not at all certain that we are able to obtain meaningful consent (I could be wrong on that, though).Report

      • Michael Drew in reply to Mark Thompson says:

        @Mark Thompson, On Somalia – good point.Report

      • Michael Drew in reply to Mark Thompson says:

        @Mark Thompson, On the CIA, I concede the point might be valid but my overall point is that the argument smacks of cuteness that doesn’t want to address the real issues at hand. Isn’t there something in the law whereby the person being killed needs to give a shit if the person killing them is wearing a uniform? I don’t actually know. but I can see where the uniform requirement came from in the law of war – if you’re in the field, you really want everyone that might shoot at you to be wearing something saying outright that that is their intention, so you can lawfully shoot them first. In this case, the uniforms really seem like a complete legalism. One could argue that for the purpose of the battlefield, the drone itself is wearing the uniform. Scott and Greg are right (in my opinion, though obviously prominent legal scholarss disagree, and I ain’t one) — the killing of civilians, and just the general issue of the legality of this violence period, in or out of uniform, is really the issue.

        Also, the president doesn’t wear a uniform, but every combatant in the field that is is carrying out his direct orders. Is he a war criminal, when prosecuting a legal war?Report

        • @Michael Drew, As applied here, I don’t know that it’s primarily a function of whether they are wearing a uniform as it is a function of whether they are within the structure of the armed forces.

          I suspect, indeed, that a significant reason why this task is entrusted to the CIA is precisely that it is outside the military chain of command and in general operates outside of the realm of the law of war. So the idea that they could be theoretically liable in the country where the drones operate is not something that anyone in power would find shocking; especially given the consent issue, there is no chance that this theoretical liability would ever be more than that.

          Where the trouble comes into play in this respect,though, is that we are specifically charging those we determine to be unlawful enemy combatants with “war crimes” rather than just merely the applicable domestic crime. This sets a precedent where the consent of the host country is irrelevant and where the criminal liability would actually apply under the US war crime laws in addition to any theoretical liability under the host country’s laws.

          What I’m saying is that the theories we’ve used in the Guantanamo prosecutions may very well have had the unintended effect of making a wide range of CIA clandestine operations, including drone strikes, defined as war crimes under US law. In other words, by defining any acts of war committed by “unlawful combatants” as violations of the laws of war rather than merely the acts of common criminals in a foreign country, we have made much of what the CIA does into violations of the laws of war rather than merely acts that are potentially criminal under the laws of the foreign power.Report

          • Michael Drew in reply to Mark Thompson says:

            @Mark Thompson, Are you arguing something in particular here? My impression was that you were pointing to the arguments of others more or less without comment.Report

            • @Michael Drew, I’m working through it to figure out why I found this to be persuasive.Report

              • Michael Drew in reply to Mark Thompson says:

                I think you’re probably right to have, now that I see that the contention may be that it is preceisely because these are not uniformed military carrying this out that we think it can be done legally. If that is the contention, then I can certainly see where a seeming technicality like uniforms (which in this context I think it has to be acknowledged don’t have the relevance that they do on a battlefield) become very relevant. I didn’t see that contention made specifically in the links, but it all makes better sense if you take it as implied.Report

          • Michael Drew in reply to Mark Thompson says:

            @Mark Thompson, In any case, I’m not dismissing the argument at all. The speculation that this is done by the CIA precisely because it can’t be done legally by the military is probably very accurate, which would address my objection. (Though the uniform issue is still a sidelight, as the point is that the act would be illegal either way — possibly under the law of war as well as by the domestic law.) My impression is that this was being done both inside as well as outside the military chain of command. But perhaps only where we have been “legally” at war within the chain of command – Iraq & Afghanistan.Report

  5. Rufus F. says:

    It’s an interesting point. I have to say that drone attacks unnerve me in a way that even bombings do not. I don’t know what it is- maybe the video game aspect.Report

  6. Nob Akimoto says:

    It also raises the question of just how much of a paramilitary capability we want intelligence agencies to have.

    They could avoid a lot of the sticky legal questions if they put ALL the drone strikes programs under air force control./Report

  7. Michael Drew says:

    A very good discussion of the issues involved:

    I take the question of the “priviledged” status of combatants to be rather more complicated than the simple matter of uniforms, but in any case it seems clear enough that CIA operatives and certainly contractors do not meet the criteria. It’s remarkable to me that this program was adopted wholesale across successive administrations, with the succeeding having been sharply critical of the preceding on just this type of grounds, with such obviously defective modalities kept entirely in place. Where was the review process? It seems to me (I must be mistaken, however) it would be a rather small matter to adjust the control of the program such that the status of the operations were compliant with unambiguous requirements of IHL/law of armed conflict. (The larger questions of the legality and certainly morality of the actions regardless of modalities being decidedly another matter.) It’s, again, remarkable to me, given the high profile of this program in the Obama approach to these wars, that a thorough, competent review process didn’t identify such obvious deficiencies and address them if it was going to adopt the program with such emphasis. Some CIA lawyers must have done their jobs too damn well for their own good, or certainly the administration’s.Report

    • Scott in reply to Michael Drew says:

      @Michael Drew,

      I was with the author until he started comparing the drone strikes to other assassinations.Report

      • Michael Drew in reply to Scott says:

        @Scott, I agree that’s somewhat dubious — covert assassinations of various methods surely have been part of nations’ ouvres for longer than our drone warfare. However, Horton there isn’t making a legal anaolgy but rather is reasoning out the de facto consequences of the expansive, non-transparent way in which we are conducting that warfare for the reasoning and actions of other states. I agree he doesn’t satisfactorily draw the lines of causation he suggests in each case, but his point is not that each case is legally or morally analogous, but rather that our actions have led others to emulate us in ways that escalate the seriousness of the legal and moral issues that get glossed over in each successive case. That part of the talk was a story of escalating unintended real-world consequences of our approach rather than strict moral or legal analogy.Report

        • Scott in reply to Michael Drew says:

          @Michael Drew,

          My problem is with his reasoning that American actions (i.e. drones) have led others to emulate us. Many countries were killing their expats and other foreigners they regarded as threats long before we started with the drones. Yes, other countries use our war on terror as an excuse to kill those they want to but I don’t see as a very good reason for the US to stop with the drones.Report