Using drones: principles, tactics and results (amended title)

O'Hara aka OccamsRazor has an article at SWJ linked by SWJBlog, Drone Attacks and Just War Theory (link to pdf). Its BLUF:

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Final Thoughts

The principles of distinction and proportionality are integral to the premise that wars should be conducted in a limited fashion. Derived from theologians in the just war and natural law traditions, these principles have made their way into statutory law, as exemplified by Additional Protocol I of the Geneva Conventions. But what is the best way to interpret these provisions? Does one trust the ICRC guidance, or guidance provided by either hawkish or pacifistic legal scholars? This paper‟s answer was to evaluate which perspective best fit the construct of JWT. While perhaps not always the perfect answer, it is a useful guide in sorting through the various interpretations of distinction and proportionality held in international law. Now, more than ever - with the Obama administration‟s use of targeted killing so prevalent - does this dialogue about drone attacks need to occur.[111]

111 See Jane Perlez and Pir Zubair Shah, Drones Batter Al Qaeda and Its Allies Within Pakistan, N.Y. Times, April 4, 2010, http://www.nytimes.com/2010/04/05/wo...ef=instapundit.

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This thread seems more appropriate for this article than the Drone Paradox thread (which deals more with the military and political aspects) - and it is O'Razor's thread.

Some general articles on "Just War Theory" (which has a large theological component):

Just War - Wiki

Just War Theory - IEP

JustWarTheory.com (many links to multi-variant sources)

War - Stanford Encyclopedia of Philosophy

Principles of the Just War

The concepts governing a "just war" can certainly vary - even within the same religious tradition. E.g., compare these Roman Catholic resources:

The Just War Theory: A traditional Catholic moral view

Catholic Just War

There Can Be A Just War: Teaching of St. Thomas Aquinas

There Can Be A Just War: Teaching of St. Augustine

Thus, no easy answers exist here; and one must credit Bill for tackling this subject (which I would duck).

Speaking of tackling, how many days to go until Navy beats Army ? :D

Regards

Mike

Damn the lawyers anyway! :D

We say we are "at war" so that we can invoke wartime authorities to do things that would not be allowed if we were "at peace" and operating under law enforcement authorities. Not only would we not be able to do these drone strikes, but arguably would have to pack up our tent in Afghanistan and go home from there as well.

Yet logic tells us that we are not really at war. If we were in the beginning, the ends that justified that status have long been met. So while we open ourselves up to the tremendous strategic risk of "losing a war," we don't dare call it over for concern over the tactical risks of losing wartime authorities....

Hmm. We've made a sticky mess of this.

Personally, my vote is drop the war facade. We really don't need it. Anyone who really needs killing will still get killed, and we will have set the legal and strategic framework for moving on to a broader approaches that are less likely to violate the sovereignty of others in ways that tend to validate the very points that AQ makes about the US to fuel acts of terrorism against us in the first place.

Constraints can be good. It was the lack of constraints in Iraq and Afghanistan that got us so deep in those two theaters, and it was the presence of constraints that kept us from overreacting in places like the Philippines and Indonesia. Constraints help one to make the right decisions, while the lack of constraints often enables poor decision making. The US has been operating without effective restraint for too long now. Since about 1989, in fact.

I remember when it was a big deal when the U.S. violated another nation's airspace, or dropped a bomb on some sovereign nation or another. We should make it a big deal again.

(1) We are engaged in an armed conflict with AQ - and you yourself have stated that AQ is engaged in unconventional warfare against us. Under LE rules, direct actions to kill would be illegal - period, full stop.

(2) The argument about the US violating other national sovereignty is a red herring - at least to the extent that it seeks to make direct actions illegal vice the persons attacked. If we violate sovereignty, the violated nation (not the terrs we kill) have remedies under I Law. In most cases, they seem to have exercised the remedy of diplomatic protest. Fine; once the protest is made, I Law is satisfied. Or, the violated nation could sue for damages, etc.; but they seem not to do that. Instead, they take our billions in foreign aid. :(

Your construct seems to include only "war" (in an all-out sense) or "peace" (which involves only LE rules). I'd say that TVNSAs (Transnational, Violent, Non-State Actors) present us - by their choice, not ours - with a middle ground (armed conflicts, usually of lower intensity than conventional war).

Regards, despite definite disagreement

Mike

Mike, perhaps you can agree with me. I have no problem with declaring an open season on AQ, so long as we have the wisdom to not allow the intel guys to slap that label on every nationalist insurgency movement they assoaciate with. And also the wisdom to not be manipulated by shady allied leaders who just want us to help them but the beat down on their own insurgent populace. I just think its time to retire the "We are at war" mantra. It makes us sound weak and scared, and enables thinking that makes us act like a bully with allies and opponents allike.

Wars carry too much strategic risk; and law enforcement does not work well on those who take their primary sanctuary in being outside the law. To paraphrase Huey Lewis: "I want a new construct." Like Huey's problem, our current program may make us feel good in the short term, but the side effects are brutal.

(I want a new drug One that won't make me sick One that won' make me crash my car Or make me feel three feet thickI want a new drug One that won't hurt my head One that won't make my mouth too dry Or make my eyes too redOne that won't make me nervous Wondering what to do One that makes me feel like I feel when I'm with you When I'm alone with youI want a new drug One that won't spill One that don't cost too much Or come in a pillI want a new drug One that won't go away One that won't keep me up all night One that won't make me sleep all dayOne that won't make me nervous Wondering what to do One that makes me feel like I feel when I'm with you When I'm alone with you I'm alone with you babyI want a new drug One that does what it should One that won't make me feel too bad One that won't make me feel too goodI want a new drug One with no doubt One that won't make me talk too much Or make my face break outOne that won't make me nervous Wondering what to do One that makes me feel like I feel when I'm with you When I'm alone with you)

Sub-titled:

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President Obama is ordering a record number of Predator strikes. An exclusive interview with a man who approved ‘lethal operations.

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Link:http://www.newsweek.com/2011/02/13/i...g-machine.html

An odd article from Newsweek, largely around the ex-CIA senior lawyer talking; yes a book is coming. Nothing startling, especially having heard another ex-CIA lawyer talking.

but the picture I glean from the Newsweek article is that he is something of a legend in his own mind.

NYT search on John A. Rizzo

John A. Rizzo Confirmation Hearing Statement - an outline of the branches in the agency's Office of General Counsel at end.

The article adds nothing to the serious legal discussion re: targeted killings and the AUMF.

Regards

Mike

Here is a pre-publication draft by Bobby Chesney (one of the folks at Lawfare), Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force.

Its abstract:

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Anwar al-Awlaki is a dual Yemeni-American citizen who has emerged in recent years as a leading English-language proponent of violent jihad, including explicit calls for the indiscriminate murder of Americans. According to the U.S. government, moreover, he also has taken on an operational leadership role with the organization al Qaeda in the Arabian Peninsula (AQAP), recruiting and directing individuals to participate in specific acts of violence. Does international law permit the U.S. government to kill al-Awlaki in these circumstances?

Part I opens with a discussion of what we know about AQAP, about al-Awlaki himself, and about the U.S. government’s purported decision to place him on a list of individuals who may be targeted with lethal force in certain circumstances.

Part II then explores objections to killing al-Awlaki founded in the U.N. Charter’s restraints on the use of force in international affairs. I conclude that a substantial case can be made, at least for now, both that Yemen has consented to the use of such force on its territory and that in any event the conditions associated with the right of self-defense enshrined in Article 51 can be satisfied.

Part III then turns to objections rooted in IHL and IHRL, beginning with the question whether an attack on al-Awlaki would fall within IHL’s field of application.

I conclude that the threshold of armed conflict has been crossed in two relevant respects. First, it has been crossed in Yemen itself as between AQAP on one hand and the U.S. and Yemeni governments on the other. Second, it has been crossed as well with respect to the United States and the larger al Qaeda network – and not only within the geopolitical borders of Afghanistan. Building from these premises, I then proceed to consider whether al-Awlaki could be targeted consistent with IHL’s principle of distinction. I conclude that he can be if he is in fact an operational leader within AQAP, as this role would render him a functional combatant in an organized armed group.

Should the analysis instead turn on IHRL, however, the central issue becomes the requirement of necessity inherent in IHRL’s protection for the right-to-life, and in particular the notion of temporal necessity. I conclude that this requirement is not an obstacle to attacking al-Awlaki insofar as (i) there is substantial evidence that he is planning terrorist attacks, (ii) there is no plausible opportunity to incapacitate him with non-lethal means, and (iii) there is not good reason to believe that a plausible non-lethal opportunity to incapacitate him will arise before harm to others occurs.

A second question then arises, however. Must al-Awlaki be linked to a specific plot to carry out a particular attack, or is it enough that the evidence establishes that he can and will attempt or otherwise be involved in attacks in the future without specificity as to what the particulars of those attacks might be? The former approach has the virtue of clarity, yet could rarely be satisfied given the clandestine nature of terrorism. The latter approach necessarily runs a greater risk of abuse and thus perhaps justifies an especially high evidentiary threshold, but in any event it is a more realistic and more appropriate approach (particularly from the point of view of the potential victims of future terrorist attacks).

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Prof. Chesney asks a fairly narrow question: "Does international law permit the U.S. government to kill al-Awlaki in these circumstances?" Placing that question front and foremost gives too much primacy to the "law" as the decisive factor in dealing with Mr al-Awlaki and others in his group.

A different approach (which eventually gets to the "law") would start with the policy choice between the packages of strategy and tactics, available or which could be developed, to neutralize (kill, capture or convert) the target group. The policy choice could range from a purely "law enforcement" approach (in which targeted killing is far from the norm) to a purely "military" approach (in which targeted killing is the norm - in the setting of a conventional war under the least restrictive ROEs[*]) - with mixtures of those approaches along the spectrum.

Having decided on a package of strategy and tactics, one then should approach the "law" to see what is available "off the shelf". One should fully realize that the "law" is not an immutable omnipresence in the sky; and often can be shaped or even changed to meet the needs of the strategy and tactics selected. Good lawyers shape (or at least try to shape) the "law" every day.

Of course, if you believe that the "law" is simply immutable, then you cannot accept my suggestion.

A similar disconnect involves who decides what the "law" is (lots of room for some Clintonesque parsing of "is"). My position is that that decision is a policy decision which belongs to the governmental branch or branches constitutionally empowered to decide.

In matters of foreign and military policy, the courts should rarely be involved with those political questions. They should not be decided by legal academics; e.g., The Lexington Principles Project:

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A Transnational Legal Process Approach to Due Process

The Lexington Principles on the Rights of Detainees is a new body of international due process principles reflecting the prevailing transnational norms in the area of detainee treatment. The final principles were completed on April 1, 2009.

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The "prevailing transnational norms" are, of course, as seen by the folks (mostly academics) who constitute the project's principals.

Regards

Mike

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[*] E.g., Germans vs US in 1944. To a German sniper, my dad was a legal target, whether armed or unarmed, at any time or any place, whether or not he himself was or was not an immediate hostile threat to anyone. The German can shoot because dad (1/117-30ID) was an enemy combatant.

In the case of a irregular force, the question of who is a "combatant" is a tougher factual question - as also the treshhold question of whether an "armed conflict" exists between the irregular force and the state considering use of targeted killing.

I missed this NYT article and found it viahttp://legalift.wordpress.com/ .

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When military investigators looked into an attack by American helicopters last February that left 23 Afghan civilians dead, they found that the operator of a Predator drone had failed to pass along crucial information about the makeup of a gathering crowd of villagers.

But Air Force and Army officials now say there was also an underlying cause for that mistake: information overload.

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Link:http://www.nytimes.com/2011/01/17/te...0Deadly&st=cse

Jimm99 - I just saw this thread now. I had a blast writing that paper for my Law of War class last spring, and I'm glad that you had a chance to take a look at the final product.

Also, O'Razor is awesome. I think it might be my new handle :-)

Again from WaPo:

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reports that, according to independent estimates, few high-value targets are being hit successfully by U.S. drone strikes in Pakistan, despite a sharp increase in strikes last year. The report says 118 drone strikes in 2010 killed an estimated 581 militants, only two of whom appeared on a list of most-wanted terrorists. CLS Fellow Peter Bergen is cited in the report as suggesting that “data on the strikes indicate that 94 percent of those killed are lower-level militants".

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Link:http://www.washingtonpost.com/wp-dyn...l?hpid=topnews

One does wonder if the ISI-provided intelligence, pre-Raymond Davis, which has previously been reported as the main source for targeting, has been accurate and if the motives have been clear.

http://www.sfgate.com/cgi-bin/articl...i025538D16.DTL

I read a comment on this topic on LWJ claiming Sharabat Khan was "good Taliban", and had attempted to liberate Afghanistan from ISI control. Wasn't aware that there was a tiered system within the Taliban based off your level of "good" and your priorities. These guys should really issue badges out so we don't mistake them...

Grant Bramlett
http://www.bramlist.com

The Taliban are not, and have never been the enemy of the United States. IAW principles of Pashtunwali they refused to give up AQ to the US when we asked them to, so we put our weight behind their enemies, lifting the Northern Alliance into power.

Now the Taliban hold the keys to Al Qaeda's sanctuary in Pakistan. That is an essential, and too often overlooked fact.

It is not within the Government of Afghanistan's power to deny sanctuary to Al Qaeda.

It is not within the Government of Pakistan's (or the ISI or their Army for those who demand granting the government amnesty for the actions of its arms, and to also grant sanctuary from consequence to those arms as well) power to deny sanctuary to Al Qaeda.

The mission given to the U.S. by the President is:

“to disrupt, dismantle, and eventually defeat al Qaeda and to prevent their return to either Afghanistan or Pakistan.”

Now maybe it is more effective to build Afghanistan into a modern State, while suppressing that element of their populace that is not particularly down with the form of government put together by Mr. K and his friends.

Maybe it is more effective to disrupt the balance between India and Pakistan by destabilizing the shaky hold that the Pakistani government has on the reins of power there.

Maybe. Personally, I think it is probably smartest to go straight to the Taliban and cut a deal with them. That does not mean giving them the keys to Kabul, as many will immediately jump to. But it does mean not dedicating ourselves to denying them the opportunity to once more engage in the political process of their own country.

This should be fairly obvious, but clearly it is not.

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Originally Posted by gbramlet

http://www.sfgate.com/cgi-bin/articl...i025538D16.DTL

I read a comment on this topic on LWJ claiming Sharabat Khan was "good Taliban", and had attempted to liberate Afghanistan from ISI control. Wasn't aware that there was a tiered system within the Taliban based off your level of "good" and your priorities. These guys should really issue badges out so we don't mistake them...

Grant Bramlett
http://www.bramlist.com

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The Pak Army/ISI are the ones who should be issuing the IDs. Good and bad Taliban is their concept. "Good" attack us and the Indians. "Bad" attack things in Pakistan. The trouble with the idea is the good work with the bad who work with the good who are buddies with the bad and they all believe in about the same thing anyway. The ISI think they can control the whole thing and keep track of who is good or bad. In the past they have used our drones to kill bad Taliban. Apparently they are upset that our guys slipped the leash for once and killed some of the good Taliban.

Bob's World: It might indeed be a good idea to talk to the Taliban, though which part you would talk to may cause a bit of confusion. It would help us peel them away from the Pak Army/ISI. The trouble is of course, all the top leaders of Taliban & company live in Pakistan and if they tried talking to us they would get picked up right away, as happened in early 2010.

Also which part of the Taliban are sheltering AQ, the good or the bad? If it is the bad, why should they care what happens in Afghanistan?

I have a question. Does Pashtunwali require the host to allow the guest to murder others while he is a guest? That is what essentially happened in 2001. AQ wasn't running and seeking refuge, they perpetrated an outrage while they had refuge. A rather big difference.

"good" and "bad" are assessments that are not particularly helpful; unless by "good" one means willing to work with us toward mutually beneficial ends.

When we decide some guy or his organization is "beyond the Pale" we mostly serve to limit our own options. The real key is to identify and reconcile key issues rather than people. Some of these guys are never going to get a seat at the table, but that does not mean that a guy they trust from their organization or a related one cannot carry their issues to the table.

The "good" and "bad" refer to how it seems the General sahibs view Taliban & company. Good quickly turn to bad in the eyes of the Pak Army/ISI if they show signs of bolting the reservation. So from our standpoint if somebody showed signs of wanting to seriously talk independent of their masters at GHQ, to us they would be good; to GHQ, they would be bad and they would get picked up quickly making the whole thing moot.

Well before 9/11 the Pakistani government tolerated paramilitary organizations that are willing to take the law into their own hands, particularly over the long-simmering feud with India over Kashmir. When particularly outrageous acts of terrorism took place the response of Pakistan's government would usually be to detain a few people for a few days and then let them go. There was a period in 1999 or 2000 when it seemed that Pakistan and India might go to war over Kashmir because of incidents there.

When we finally pull out the last of our troops in Afghanistan we ought to end our funding to Pakistan -- I mean the whole nine yards, DoD, State, AID, whatever else. The country has been jacking us around for 30 or 40 years by saying if we don't support it financially dangerous radicals might take control of the country. That's two-faced -- they've been supporting terrorist groups for decades, and only by a deliberate act of the U.S. Government burying its head in the sand could we pretend it's not so. Let's cut Pakistan off -- they've been pushing the limits for years. Let them be a failed state.

Pete,

You are being unduly harsh on Pakistan:

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The country has been jacking us around for 30 or 40 years by saying if we don't support it financially dangerous radicals might take control of the country.

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The religious radicals / extremists have been there throughout its short history and only recently have had significant influence, rarely power IMHO. We have debated the radicals empowerment by the state, notably by ISI, the Army and others before.

So what is the 'jacking about' since 1970-1980? When the USSR invaded Afghanistan in 1979, leaving in 1988, Pakistan quickly decided on opposition, yes with some US largesse; without Pakistani support the Mujahhedin anti-communist insurgency would have been far harder, if not impossible.

After the USSR exit an active US role in Afghanistan disappeared and shortly afterwards the Taliban era began. Only after 9/11 did the USA return to Afghanistan, when Pakistan's leader made a decision to back the USA and more funding commenced. Again without that support - however convoluted - the USA would then have struggled in Afghanistan.

Perhaps the USA has been "lead by the nose" by the Pakistani state, it is clear to me the US decision-makers were aware what Pakistan was doing, hard choices were made.

Today though I agree referring to a 'radical takeover' is well past it's use by date and in other threads SWC has debated Pakistan's failings.

Hat tip to CLS e-briefing to a report in The Guardian:

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Britain’s Ministry of Defence commissioned an in-house study last month examining the ethics of drones, according to the Guardian, and is urging policymakers to consider norms and rules that would govern the use of the rapidly developing technology and robotic warfare. According to the Guardian, the report states that “the recent extensive use of unmanned aircraft over Pakistan and Yemen may already herald a new era,” and that “every time a mistake is made,” insurgents are able to cast themselves “in the role of underdog and the west as a cowardly bully that is unwilling to risk his own troops, but is happy to kill remotely.” The report continues that the authors hope policymakers will engage in a conversation about the implications of remote warfare, including whether individuals operating drones are considered combatants.

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Link to article:http://www.guardian.co.uk/world/2011...kes-mod-ethics

There is a superb commentary on the issues involved, which I hesitate to select a quote from on Leah Farrell's blog:http://allthingscounterterrorism.com...-using-drones/

Do Drones Make Warfare Too Easy?

Entry Excerpt:

Are Drones a Technological Tipping Point in Warfare? by Walter Pincus, Washington Post.

"Debates are growing at home and abroad over the increasing use of remotely piloted, armed drones, with a new study by the British Defense Ministry questioning whether advances in their capabilities will lead future decision-makers to 'resort to war as a policy option far sooner than previously.'"

Are Drones a Technological Tipping Point in Warfare?.



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