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

[jmm99]

But first, ODB, good to see the Buddha Belly back posting.

The Short Legal Position starts with the 2001 AUMF, S.J.Res. 23 (107th): Authorization for Use of Military Force, which boils down to one sub-paragraph (JMM emphasis added):

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

During the Bush II Administration, the 2001 AUMF was viewed flexibly with respect to the President's authorization to determine whether a nation, organization or person was within its scope for "future acts of international terrorism". The question (say, as to organizations and persons) was whether the organization or person was closely enough tied to AQ or the Taliban (which harbored AQ) to be considered part of either organization either directly or as an "affiliate", "associate", "franchisee", and all the rest of the buzz words that developed. That question (decided in hundreds of detainee cases that haven't had the publicity of the direct actions and drone strikes, in the Federal courts - I'd include SCOTUS), is primarily a political question - the President's decision will usually be final.

In traditional military terms, the first question is defining the "enemy" (a nation, organization or person subject to the AUMF), which is a Presidential determination. Let's say he's done that and the "AQ Expatriates of Upper Michigan", now in country "X", are within the AUMF (in broad terms, the "enemy") - and let's say that its members are all US citizens.

The next question is whether a given member of the "AQ Expatriates of Upper Michigan", now in country "X", is a combatant or not . Combatant vs non-combatant matrices are developed employing co-operation under Title 10 (the US Code title governing the military) and Title 50 (the US Code title governing the civilian intelligence agencies). That T10-T50 co-operation could extend into the direct action or drone strike itself - killing UBL being a case in point.

If the member is purely a political supporter, he will likely fall into a non-combatant matrix. If his role is more active in military "stuff", he will likely fall into a combatant matrix. Another practical question is "fall into a matrix" by what standard: "more likely than not"; "clear and convincing proof"; "beyond a reasonable doubt", etc. (including such grammatical incoherences as "to a reasonable certainty").

In short, the process reduces to the traditional PID of a combatant member of an enemy force, who can be killed in any place and at any time, armed or unarmed.

Does US citizenship make a difference ? The answer is negative, if one looks to the traditional test for the "privileges and immunities" of US citizens (or, for that matter, to the expanded version of Clarence Thomas, to which I personally adhere as a Second Amendment proponent). A US citizen has no "privilege" or "immunity" to become a combatant member of an enemy force; and can be killed the same as any non-US citizen member of that force. E.g., those German-Americans who joined German forces in WWII; or, for that matter, the Confederate soldiers of the Civil War under the Lieber Code, and the Union soldiers under the Confederate Articles of War that actually preceded the Lieber Code.

That is my legal position.

Having said all that, there are many opponents of the AUMF in general; of direct actions and drone strikes in particular; and of using direct actions and drone strikes to kill American citizens in foreign countries, even when they are combatant members of an enemy force. The Obama administration itself has many such opponents; and the President himself seems "intellectually divided" in this and related areas. My dad taught me to salute (respect) the office, not the man.

Let's call the position of the opponents of my position, the Long Legal Position - actually a collection of multiple, long legal positions. I don't have time to do that now; but have exemplified and explained my opponents' positions in other threads.

Regards

Mike