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.

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