The Rules - Engaging HVTs & OBL

[jmm99]

Hi Carl,

I'd love to put aside the "legality issues" of drone strikes; and look at the much broader picture. That includes not only the simplistic question ("Is it legal ?"), but questions of purpose, scope, judgment and wisdom - the tough questions. I think McNeal addresses some of them in his 127-page article; though admittedly, I had a tendency to drift (like Lawrence on his camel) as I got into the middle third.

Yesterday, I ran into an interesting non-legal article that summed up 5 key issues regarding the "drone war" - in two pdf pages. From "The Week" (its "The Compass" blog), 5 truths about the drone war (March 13, 2013; by Marc Ambinder - "Marc Ambinder (born c. 1978) is an American editor and journalist, editor-at-large of The Week, a contributing editor at GQ and at The Atlantic." see, very brief Wiki):

Maybe Jacques Derrida [JMM: a good non-legal link to read in itself], the French dauphin of deconstruction, was right: In the beginning and end was the word. Logos. In war, words matter. Take our drone war, which is not, in point of fact, a war, and involves "drones" only incidentally. And yet the concept of hovering, amoral surveillance machines with missiles attached to them is pretty much the way everyone describes a much different reality.

I'd suggest (without any expertise as a pollster as opposed to a poll user; and thereby breaking at least two of Alinsky's Rules, despite having a copy 15 feet to the right of me and 15 feet to the left of me, as I write ) that the polling results, both favorable and unfavorable to the USG and USP (People) positions, are heavily motivated by the "concept of hovering, amoral surveillance machines with missiles attached to them".

Leaving behind my expertise or lack of same, what are Mr Ambinder's Five Points (snipped) ? -

1. The drone war is not fought primarily with drones.
...
2. The CIA does not "fly" drones.
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3. The targeted killing policy is the best of all worst options for two reasons. One: The United States does not have a coherent and legitimate capture and detention policy. (Thank the CIA torture program, Abu Ghraib, Congress, and the Obama administration's weak efforts to create one.) Two: Human intelligence collection has atrophied to the point where there are not enough people on the ground to facilitate the capture and detention of wanted targets.
...
4. 4. Al Qaeda core has not successfully pulled off a plot against the West since 2005, according to Peter Bergen.
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5. RPVs are NOT the future of warfare. They are a future part OF warfare.
...

I'll take these in a slightly different order.

5. RPVs are NOT the future of warfare. They are a future part OF warfare.

Ambinder's argument for this is:

Wars are still mostly fought by people in the theater with guns and ammo and communication trucks. RPV technology is advancing, but it is still hard to get one of those buggers to hover in place for an hour and THEN shoot something, and then hover for hours. It's doable, but hard. (Most battle damage assessment are done with other UAVs). That's why the RPVs "orbit." Their courses are programmed; they can deviate off-track and be rapidly reprogrammed, but physics still prevents complete freedom of movement especially if the UAVs have large ordinance on board. If an intelligence source has the exact coordinate of a known al Qaeda operative, the weapon of choice used to kill him will be the platform that is closest, available, and would provide the least collateral damage and most accuracy, depending upon the mission and its own operational security needs.

I have no complaint here. Wilf (Owen of Infinity Journal) might require more "rigour"; but "War" is always "War" (the conduct of war, warfare - lit. a "ticket to war" - has varied over the ages, though not as much as people might assert). IMO: the "weapon of choice" could range from an infantryman to a nuclear warhead - drone strikes and airstrikes are mesne means. One might expect adversity to drone strikes to diminish as they enter more and more national armories (as the crossbow, fusils, cannon, etc., incl. "nukes").

1. The drone war is not fought primarily with drones.

Ambinder's argument for this is:

The United States targets members of al Qaeda, al Qaeda affiliates and now, apparently, affiliates of those affiliates, using a comprehensive array of technical intelligence resources, backed up by fighter jets with conventional bombs, submarines that launch missiles, other platforms that launch missiles, and, sometimes, missiles attached to remotely piloted vehicles. The policy is best described as targeted surveillance and killing of the aforementioned groups. In certain areas, it is easier to fly airplanes; in certain places in Pakistan, RPVs launched by Afghanistan will do the job. The munition and vehicle used depends on the target, his location, his importance, and the resources available to the military and CIA at the time.

Again, I've no complaint here; other than a quibble that boots on the ground should be in play (given the right situations) - the PBI (poor bloody infantryman) and the "Son Tay Raiders". And, I'd have to add those "always on the table" nuclear devices.

2. The CIA does not "fly" drones.

Ambinder's argument for this is:

It "owns" drones, but the Air Force flies them. The Air Force coordinates (and deconflicts) their use through the CIA's Office of Military Affairs, which is run by an Air Force general. The Air Force performs maintenance on them. The Air Force presses the button that releases the missile. There are no CIA civilians piloting remote controlled air vehicles. The Agency has about 40 unmanned aerial vehicles in its worldwide arsenal, about 30 of which are deployed in the Middle East and Africa. Most of these thingies are equipped with sophisticated surveillance gear. A few of them are modified to launch missiles. The Air Force owns many more "lethal" RPVs, but it uses them in the contiguous battlefield of Afghanistan.

If this be true (I don't know. but it sounds plausible), we have a combination of Title 10 & Title 50 (U.S. Code) that fits within the "Laws of War" (aka "LOAC" & "IHL"), as accepted and applied by the U.S. (though quite obviously not as "accepted and applied" by the citizens of other nations - from the Pew Poll).

On this point (which is a legal one), Wells Bennett notes:

That’s an interesting “truth” - assuming it is, indeed, true - in light of the DOJ White Paper.

Among other things, the White Paper concluded that, under its given facts, a hypothetical violation of 18 U.S.C. § 1119 (or the “murder of a U.S. citizen
abroad” statute) likely would be justified on “public authority” grounds. This part of the White Paper proceeded in two steps:

first, by noting 1119′s incorporation of other federal laws which criminalize only “unlawful” killings;

and second, by pointing out that the targeted killing, abroad and away from any zone of active hostilities, of a senior Al-Qaeda leader who is a U.S. citizen and poses an imminent threat - would be lawful.

That is, the killing would be conducted in accordance with the laws of war, which govern the United States’ non-international armed conflict with Al-Qaeda. And that, apparently, would furnish “public authority” sufficient to justify a violation of the statute under such circumstances.

That conclusion, of course, follows from two a priori conclusions: (1) that the "Laws of War" apply; and (2) that "Kill" is an equally valid option to "Capture". Generally speaking, we have a US vice EU-UN dichotomy on all three of those legal issues.

- to be continued -