Friday, April 27, 2012

Does the US' Use of Drones Violate the Laws of War?

To stay true to the name of the blog, we will call drones a cyber law issue and I will post something about them.  I'm sure everyone remembers when Al-Awlaki was targeted and killed via drone strike. This entry is a modified version of something I wrote earlier in the year in response to a listserv discussion on the topic of the legality of the killing.  This particular discussion occurred after Attorney General Holder gave a speech at a law school, where he presented a justification.  I have tried to reword it so that it doesn't read like you're just getting one side of a conversation, apologies if I have missed anything.

There was no formal declaration of war, however, there was an authorization for the use of military force.  Additionally, Congress has passed legislation declaring anyone involved with Al Qaeda to be an unlawful enemy belligerent.  When the war on terror began it was in large part being conducted against the Taliban.  While the Taliban was not widely recognized internationally as a State, it controlled large parts of Afghanistan, including Kabul.  Even now the Taliban controls territory in Afghanistan.  Despite the non-State character of other participants, the conflict is most analogous to military activities, rather than crime.  Therefore, it is the laws of armed conflict, and not the law enforcement model that controls.

Under the laws of armed conflict, unprivileged enemy belligerents are not entitled to the protections of the laws of war, which protect lawful soldiers.  Therefore, in addition to being unlawful combatants, they are criminals.  This is why the government asserts that they are also able to be tried in civilian courts.  The ability to do so is not the same as the obligation.  Enemy combatants are lawful targets, and may be targeted at any time while the conflict is ongoing.  Despite what the ACLU says, international humanitarian law does not make reference to the "battlefield."  Issues of national sovereignty are implicated when a strike is conducted in a State with which we were not at war.  If that State were to consent to the operation, there would be no problem under international law.  Members of the leadership are enemy combatants even if they never pick up a weapon.

The Constitution provides for due process.  It does not define what due process is.  In Ex Parte Quirin, a US citizen was captured on US soil, tried by military commission and executed for committing sabotage along with German Nazis.  This is distinguished from Ex Parte Milligan, where a US citizen on US soil could not be tried by military commission while US courts were open and functioning, because in Quirin the US citizen was an enemy combatant, which was not the case in Milligan.  Therefore, SCOTUS has held that US citizens who are enemy combatants are not granted the same constitutional protections as US citizens being tried under the law enforcement/criminal model.  The due process is different.

I am not arguing that Holder's opinion is perfect.  I do have concerns relating to the complete secrecy in due process determinations.  At the moment we are forced to rely on the AG's declaration that due process is being met.  As an example of possible alternate methods, the Israeli system calls for a judicial determination after-the-fact so that there is some accountability, while still taking the national security concerns for secrecy into account.

As for the lack of honor in using drones that has been mentioned, LOAC prohibits the use of certain weapons.  Generally prohibited weapons are those that are indiscriminate and those designed to inflict unnecessary suffering.  Neither is the case for drones.  It is no different from having a pilot in the cockpit, except the pilot's life is not at risk, and they are able to stay airborne for longer periods of time.

Tuesday, April 24, 2012

Planetary Resources Officially Announces Who and What They Are

Lucky me, I don't even have to go back in time quite yet.  Just after I finished with my introduction I was able to watch a live stream of the Planetary Resources ( press conference.  Much to probably no one's surprise after all the speculation and leaks leading up to today's announcement, PR is an asteroid mining company.  Unfortunately the video wasn't set up to show the slides that accompanied the speeches, but I think what they said was informative enough for my purposes.  I'll recap the science/technology aspects as well as I can, and apologize for any demonstrated gaps in my understanding.  This is exactly the sort of problem I'm trying to correct by attending ISU this summer.

Press Conference Summary:

The press conference was hosted by the Museum of Flight in Seattle, Washington.  PR's co-founders are Eric Anderson and Dr. Peter Diamandis.  Diamandis, it's worth noting, is also a founder of the ISU.  President and Chief Engineer Chris Lewicki also spoke.  The company is headquartered in Bellevue, Washington.

Dr. Diamandis' presentation focused on what he considered the 5 key elements for why now is the time for asteroid mining.  First, he emphasized that growing technologies have made it possible for small groups of talented individuals to do what was once only possible for governments.  Next, developments in other aspects of the commercial space industry, such as the availability of commercial space launch, will help to reduce the costs associated with such an operation.  Third, as we have seen through the endeavors of individuals such as Elon Musk and Richard Branson, there is a new breed of risk tolerant investors who are willing to gamble on commercial space exploration.  Fourth, scarcity of natural resources is a growing problem that can be helped by gaining access to asteroids through improved technology.  Lastly, the demonstrated interest of NASA in partnering with private companies sets the stage for the effort being more feasible as well.

Eric Anderson spoke more to the business plan.  He addressed why mining asteroids would be so valuable.  He joked that at PR they don't understand why their announcement is a big deal since we have been mining asteroids for years.  This is meant to point out that certain precious metals, like those in the platinum group, do not occur in the Earth's crust.  Platinum is currently mined from sites of asteroid impact.  The ability to mine these metals from asteroids would be a dramatic increase in their supply.  Additionally, asteroids are a good source of water in space.  Mr. Anderson emphasized the importance of this to making deep space exploration possible and affordable.  One bit of science I did pick up from the announcement is that the hydrogen and oxygen from water makes an excellent rocket propellant.  Through the mining process, Anderson projected the possibility for establishing "gas stations" on the way to and from destinations like Mars.

As for how the company will operate, Mr. Anderson gave an introduction that was expanded upon by Chris Lewicki.  PR is developing their Arkyd line of spacecraft, for which they have planned out a 100, 200, and 300 series.  During the prospecting state the satellites would monitor near Earth asteroids to determine which asteroid would be the most profitable to target (based on materials that could be mined, ease of landing, needs of national space agencies, etc.), and then extracting could begin.  Mr. Anderson stated that we currently know of about 9 thousand near-Earth asteroids measuring more than 50 meters, which he estimates to only be about 1% of what is actually out there.  The first step toward the ultimate functionality of the company is the Arkyd 100 series. The Arkyd 101 was described as a space telescope operating in low Earth orbit, which could be pointed toward the asteroids for initial long-range prospecting, or toward Earth.  The dual use nature of the telescope will allow PR to gain some income just by providing remote sensing services to educational institutions.

PR also emphasized the importance of their "swarm" approach.  The goal here is to think of their satellite manufacture as an assembly line, where they are protected by the large number of satellites operating at any given time.  They also stated that they intend this to remain a robotics-oriented project, since the addition of astronauts makes things much more expensive.  I find this particularly interesting since there is always the fear that when space exploration doesn't involve humans, the public won't care.  PR, however, has enjoyed a large amount of media attention and seems to have captured the imaginations and interest of everyone.

Legal Issues:

On the legal side of things, the many implications of the commercialization of space has been a hotly debated topic recently.  Rand Simberg's proposal for US property "rights" legislation on the moon is probably the most well known instance at the moment.  The Moon Agreement calls for an equitable sharing in the benefits derived from resources taken from celestial bodies in our solar system.  However, the Moon Agreement has not been signed by the United States and other major space powers, and is not customary international law.  Therefore, it is only binding upon those States that have ratified or acceded to it.

Article I of the Outer Space Treaty, which has been ratified by the major space powers, states that "the exploration and use of outer space, including ... other celestial bodies, shall be carried out for the benefit and in the interests of all countries...."  Article II prohibits national appropriation through any means.  Given the lack of similar activities in the past, it is hard to know exactly what this means.  All of PR's activities in space can be attributed to the US through the concept of State responsibility. Arguably, conducting mining operations or establishing a long term fueling station on an asteroid could be seen as appropriation of the asteroid by the United States.  Similar problems are seen when discussing property rights on the moon for commercial enterprises.  The current international regime in space law is not conducive to commercial exploitation.  The ambiguities in the space treaties create real political risks for governments and economic ones for private companies that are seeking to spear-head the industry.  I think that Dr. Diamandis handled this issue well today when discussing how PR seeks to bring these resources back to mankind or humanity, and not the United States.  But, given the optimistic timeline of the venture, it is important for these issues to be clarified on the international political level, and soon.


I guess I will start with an introduction.  My name is Eric Dawson.  I have spent most of my life in New York, though I lived in Europe for about a year and am currently in Lincoln, Nebraska.  I received my J.D. from the Fordham University School of Law.  I am now finishing up an LL.M. degree in Space, Cyber, and Telecommunications Law at the University of Nebraska College of Law where I have the honor and privilege of studying under the world's preeminent space lawyer, Frans von der Dunk (mentioning him is a standing requirement).  My thesis work focuses on UNIDROIT's Space Asset Protocol to the Cape Town Convention on International Investments in Mobile Equipment, but I'm not going to ruin the surprise by telling you my opinions here.

This summer I will have the opportunity to be a participant in the International Space University's SSP 2012 program being hosted this year at the Florida Institute of Technology.  That is important because it is the reason I was asked to create this blog.  Starting June 2 you will get to read about all the interesting things I do, people I meet, and places I see.  Historically, engineers hate lawyers, so we'll see if I'm able to make any friends.

In the meantime, I'll try to catch up on some interesting space and cyber issues that have popped up throughout the year and give you my perspective on them.  I'm sure some of you are dying to know if we can make Gingrich President of the Moon, and what this young lawyer thinks about Rand Simberg's white paper.  Stay tuned.