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

[jmm99]

ODB: What follows is my opinion.

1. Targeted killings (whether of US citizens or non-US citizens) can only be justified under the Laws of War (aka Law of Armed Conflict or International Humanitarian Law), to include the Laws of Neutrality as a subset of the Laws of War (which require a 'war" or "armed conflict"). If the civilian legal regimes (#2 below) are only applicable and the Laws of War are excluded, targeted killings are murder, pure and simple. NB: they cannot be "war crimes" or "war atrocities" if there is no "war" ("armed conflict"). The reason for juxtaposing "war" ("armed conflict") is that Hague uses "war" and Geneva "armed conflict".

2. If civilian law applies (which could be International Human Rights Law, or the constitutional and criminal laws of the foreign country, or US constitutional and criminal laws applied in the foreign country - which might be problematic for good reasons), those who pursue "terrorists" (aka transnational violent non-state actors) must act as law enforcement officers with limited rights to defend themselves and others. The "terr" can only be arrested and tried - perhaps only in the foreign country, unless extradition is allowed.

3. Back to the Laws of War and the JCS Standing Rules of Engagement, which explicitly permit an armed force to be declared hostile by the President or his delegated representative; and, once that declaration is made, the combatant members of the hostile force can be killed because of their status - any time, any place, armed or unarmed, threatening or not. The 2001 AUMF is Congressional authorization to the same effect; but also allowing civilian law enforcement as an alternative path.

I rely on #1 and #3 to justify my conclusion that targeted killings are justified within the bounds of the "hunting licenses" granted. I see the problems coming not from the legal framework defining the parameters, but from the wisdom of the people who are running that process. A similar type of problem shows up even more clearly in NSA metadata collection - the "powers that are" accepted full bore the statutory "maximization process" (how much data you can initially collect), but ignored the statutory "minimization process" (how much data you can retain).

Your choice to employ only #2, the civilian law enforcement process, is really a political choice - hence, it can't be "right" or "wrong" based on legal opinions. It would be the only choice if there were no "war" ("armed conflict") going on.

I happen to believe a "war" ("armed conflict") is going on; and that, even if we choose #2 civilian law enforcement as the solution in a large percentage of situations, some situations will involve "war" ("armed conflict"). Thus, #1 and #3 will come into play.

A couple of notes: Loss of American citizenship is a red herring; and I believe trials in absentia are a terrible idea. However, there is little point in discussing those issues. If the Laws of War cannot fit into your equation, the gap between where you are and I am is simply too wide to bridge. The position of many (most, all ?) of our Euro allies is to reject the Laws of War and Targeted Killings; as do a number of Americans. So, you are far from being alone in what seems your position. The gap is not legal (everyone in the debate knows what the choices in laws are), it is political; just as the so-called "McCarthy Era" was political, very political.

Regards

Mike

[Firn]

I won't step into the legal realm itself but looking from the outside I just can't shake off the impression that the whole US law sphere regarding conflict has a lot in common with the old joke about the accountant. Asked what two plus two equals he answers, after closing the door, "What do you want it to equal?"

To correctly guess the outcome of the official internal US legal opinion regarding the torture, espionage and the killing of citiziens the famous dictum of the Melian dialogue seems to be often a better guide then the legal framework itself. In short "the strong do as they can and the weak suffer what they must" tends to be a pretty good heuristic.

So if a certain outcome has been seen as expedient for issues right at hand it was highly probable that the legal aspects were at the least strechted very much to meet the political intent and in other cases likely outright broken.

Now this is nothing new under the sun, perhaps apart from the fact just how far the US has gone trying to cover herself with the garb of law. Sadly, with a cloth as thinly streched and partly torn she* looks pretty naked...


*her intent fits generally better. The beauty of the mental picture of a partly naked US depends on her beauty, and although there is plenty of it some areas have rather little.