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
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.