If this short report in Newsweek is true, then I think I would worry about legal liability more than before, if I were a CIA officer involved in Predator drone strikes. I would have a much greater level of concern that the administration would not back me up in case of an indictment in a European court, for example. Or that it would not take steps to ensure, once the Obama administration ends, that its officials would be protected from future prosecutions, by sending out an unambiguous message that no American administration, Democratic or Republican, will tolerate such moves against American officials. The international community that largely regards drone strikes as
- (a) extrajudicial executions and murder by any other name;
- (b) American cowardice in using technological superiority to avoid having to take personal risks to confront its targets;
- (c) a reason why America’s enemies hide out among noncombatant human shields, with the result that the Americans “force” their enemies to violate the laws of war; and
- (d) an invitation for the United States to use violence as a tool of frequent convenience because it does not have its personnel at personal risk (rather than seeing these advances in technology as humanitarian steps forward over a quarter century to increase discrimination in targeting, and rather than seeing that not having its people at risk allows the targeting to proceed on a more methodical basis, rather than in-out with greater, rather than lesser, pressure to act in the moment),
has so far refrained from doing to US officials what it is endeavoring to do to Israeli officials because of a belief, so far as I can tell, that Obama personally backs this, as he did in his campaign up until now. His personal authority, rather than views of the United States as such, is the key source of inhibition by NGOs, UN representatives, and others. The political calculation for the international community in this kind of debate is simple: attacking the United States increases one’s global legitimacy, while attacking Obama, at least at this point, does not.
Signals by the administration in the other direction will likely embolden legal action against American officials once this administration is over. Signals from the international community, if not vigorously contested and rejected by the Obama administration, that the international community will pursue such actions down the road will have pretty much the same effect today: to disincentivate American intelligence officials from doing anything that they are not 100% sure will be legally protected now and in the future.
It is crucial, in my view, that the administration put on the record, or be pushed into putting on the record, a plain and broad statement that its drone policy is legal, not on narrow grounds of an armed conflict in Afghanistan spilling over into Pakistan, but on broader grounds of self-defense. It would be consistent with what the President said at West Point, after all, in referring to action in Yemen and Somalia or other places in order to deny Al Qaeda safe haven wherever it might go. But the administration needs to say say, plainly and broadly, as a declaration of the American view of the international law of self-defense.
Says Newsweek’s Mark Hosenball:
One person standing in the way of expanded missile strikes: President Obama. Five administration officials tell NEWSWEEK that the president has sided with political and diplomatic advisers who argue that widening the scope of the drone attacks would be risky and unwise. Obama is concerned that firing missiles into urban areas like Quetta, where intelligence reports suggest that Taliban leader Mullah Mohammed Omar and other high-level militants have sometimes taken shelter, would greatly increase the risk of civilian casualties. It would also draw protests from Pakistani politicians and military leaders, who have been largely quiet about the drone attacks as long as they’ve been confined to the country’s out-of-sight border region. The White House has been encouraged by Pakistan’s own recent military efforts to root out militants along the Afghan border, and it does not want to jeopardize that cooperation.
Of course this is Newsweek; it is quasi-reporting and quasi-opinion, so it is hard to know what to make of this. Hosenball might be spinning things; he might be getting spun; there are many possibilities. But if this were true, and I were a covert operations official at the CIA, I would be worried.
(PS. Update on the British arrest warrant against a senior Israeli official:)
Israel reacted angrily Tuesday to a British arrest warrant for former Foreign Minister Tzipi Livni on war-crimes allegations, with the government threatening to sideline the U.K. in Mideast peace talks.
A Westminster, London, magistrate court on Saturday issued the warrant, alleging crimes related to Israel’s military operations in the Gaza Strip in late 2008 and early 2009. Ms. Livni, who is now opposition leader, was foreign minister at the time and one of three government officials — with then-Prime Minister Ehud Olmert and Defense Minister Ehud Barak — to oversee the offensive.
The warrant was issued ahead of a U.K. convention of the Jewish National Fund, to which Ms. Livni had been invited, but had declined to attend. The warrant was revoked by the court on Monday after it was clear she wasn’t in the country.
Of course, it does not require an actual prosecution in order to create big effects; the uncertainties introduced about the future are enough to shift behavior today. That is also true of CIA officials in this country – not knowing what will, or will not be, sufficient to provoke an arrest warrant abroad by some magistrate acting on vague and discretionary authority, such as Baltasar Garzon in Spain, and moreover acting in a climate of local public opinion against the foreign country and its agents, such as the United States or Israel.
The British legal system allows private individuals and organizations to request arrest warrants from local courts under the principle of “universal jurisdiction.” The judicial concept allows domestic courts around the world to try cases of war crimes and crimes against humanity, even if the infraction occurred abroad and the suspect isn’t a citizen.
In recent months, U.K. lawyers representing Palestinian groups sought an arrest warrant for Mr. Barak, but it was denied on grounds of diplomatic immunity.
Israel called for “immediate” action from the U.K. to block plaintiffs from using its legal system to put Israeli leaders on trial for actions in the Palestinian territories. Ms. Livni is the fourth senior Israeli official since 2004 that pro-Palestinian activists have sought to detain using British courts.
As this British situation shows, it is a process by which central government can shrug, if it wants to, say it’s the independent judiciary, we can do nothing, while allowing the process to be captured by activists and advocates further down the system. Protests by Israel mean little, protests by the United States (if it is inclined to make them, which is far from guaranteed) mean little more. And, to judge by the behavior of Spain, what matters is the protest, public or private, of a rising power with teeth and the expectation that it will be heeded – China’s private objections to Spain’s expansive universal jurisdiction provisions and the indirect threat of withholding economic benefits, I’m told by decently connected friends in Spain (but cannot verify), was important in getting Spain’s legislature to consider scaling back its ambitions on criminal universal jurisdiction.
It is also important to recognize that the United States has its own civil law version of such universal jurisdiction, the Alien Tort Statute – and one of these days, it too will face a challenge from China on behalf of one of its corporations getting sued in the US for its actions in Africa or elsewhere, and it will be exceedingly interesting to see how the US reacts.
Off Kilter says:
Politicians of course always claim that any preemptive action was done for reasons of self-defense. If I, in Boston, attacked via long-distance mechanism (mail bomb, for example) someone in Marin county and claimed it was “self-defense” the idea would be considered fairly laughable. If I showed emails and other material that some experts read as perhaps consistent with the intent of the person in Marin county to eventually attempt to do me some harm, self-defense would still be fairly laughable. If my mail bomb inadvertently killed a dozen other people, this would be considered significant, not incidental.
In summary, the notion of “self-defense” is not easily and directly transferred from the individual context, where it is readily understood, to the level of the nation-state. Is there a clear, operational definition of “self-defense” accepted by the nations of the world, or do our politicians just make it up as they go along?
December 15, 2009, 9:38 pmRoger the Shrubber says:
I think this may be the longest sentence in the history of the VC.
December 15, 2009, 9:49 pmEvilDave says:
One thing this administration has shown is that any act of political disagreement is either a criminal act or an act of racism.
This may go away now, but ginning up political show trials to distract from bad news on another front was Obama’s go-to play for a few months there.
December 15, 2009, 9:49 pmCornellian says:
Does the right of self-defense that other countries have include the right to fire missiles into American buildings if they think a terrorist is in the building?
December 15, 2009, 9:50 pmKenneth Anderson says:
Roger: Write no sentence that does not require diagramming! That’s my motto.
December 15, 2009, 9:51 pmKen Arromdee says:
If you are referring to 9/11, I would point out that the Taliban is not a country and has no more right to do this than a gang member would. Another country would have the right, but we would have the right to bomb them back to the Stone Age in response.
December 15, 2009, 9:54 pmAnderson says:
Obama is concerned that firing missiles into urban areas like Quetta, where intelligence reports suggest that Taliban leader Mullah Mohammed Omar and other high-level militants have sometimes taken shelter, would greatly increase the risk of civilian casualties.
Well, good, that means Obama has not completely 100% lost his f.ing mind.
December 15, 2009, 10:07 pmAnderson says:
If you are referring to 9/11, I would point out that the Taliban is not a country and has no more right to do this than a gang member would.
Pakistan is, however, a country, and that would seem to be the gist of Cornellian’s question.
My largely worthless thoughts on the subject, with however some quotations of potential interest, are better viewed here than cut&pasted into this thread.
December 15, 2009, 10:11 pmzuch says:
Prof. Anderson:
As they say, if you can’t do the time, don’t do the crime.
Cheers,
December 15, 2009, 10:11 pmyankee says:
How does this constitute a problem? Government officials are supposed to obey the law, and the threat of punishment is supposed to give them an incentive to do so.
December 15, 2009, 10:25 pmJKB says:
Sure there is risk here. But the greater risk is to those very same NGOs and UN officials. See, they may go after the drone operators but they need to worry about other CIA officers going for coffee before sending on a possible threat.
It’s high time the thousands of US operatives who keep these fools safe take a day off and let the high minded individuals face the world.
December 15, 2009, 10:26 pmSteve says:
I support the drone strikes, in the sense that I feel like it’s an ugly thing we kinda need to do, but I feel like I probably wouldn’t be as understanding if a different country were to claim the exact same right of “self-defense.” The best defense against international prosecutions is to remain a superpower, I think.
I’m also wondering, since Obama didn’t invent the concept of drone strikes, why we didn’t see all sorts of international prosecutions during the last administration since apparently the world is only staying its hand because of Obamaphilia.
Finally, since these attacks are taking place within the borders of an ostensibly sovereign state, shouldn’t it be the job of that state to commence legal proceedings in the first instance? Imagine if Bolivia had invaded Afghanistan in response to 9/11.
December 15, 2009, 10:41 pmCornellian says:
Does the right of self-defense that other countries have include the right to fire missiles into American buildings if they think a terrorist is in the building?
If you are referring to 9/11, I would point out that the Taliban is not a country and has no more right to do this than a gang member would.
Um, no there were no missiles used on 9/11 and the Taliban isn’t a country. I mean suppose Russian operatives report that a terrorist wanted for bombing buildings in Moscow is right this minute hiding out in a building in Seattle but may leave the building soon. Do the Russians have a right of self-defense that includes the right to fire missiles into that building in Seattle in order to kill the person they consider to be a terrorist?
December 15, 2009, 10:53 pmRicardo says:
Drone operators may be at risk at least in theory but I wonder what the legal solution is supposed to be? Pakistan has not repealed its laws against murder: presumably, the CIA officers controlling the drones as well as their supervisors are technically guilty of conspiracy to commit murder or whatever the relevant statute is under Pakistani law. CIA operatives often break the laws of countries they operate in: that’s part of the job. There wasn’t anything inherently wrong with New Zealand prosecuting French intelligence agents for bombing the Rainbow Warrior vessel, for instance.
As far as third-party countries are concerned, are murder and extrajudicial executions by themselves covered under ICC jurisdiction or are they subject to universal jurisdiction in any significant country’s legal system? I know crimes against humanity, torture and genocide are all covered but am less sure of targeted killings of people because of their association with terrorist organizations.
December 15, 2009, 10:58 pmRicardo says:
The common-sense approach would be to say that depends on the U.S.’s track-record of cooperating in arresting and extraditing terrorists wanted by other countries. If Russia were to notify the U.S. of the terrorist, would police tip the terrorist off so that he could escape? Would the U.S. flat out refuse to do anything or claim it lacks the resources or willpower to go after powerful terrorists?
If so, the U.S. would be analogous to Pakistan and Russia may well be justified in taking matters into its own hands. In reality, I don’t believe any of these conditions apply to the U.S.
December 15, 2009, 11:03 pmGuy says:
Someone help me understand this post, how does Obama’s morally and politically based (i.e. not legally based) decision not to authorize strikes that will likely have large collateral civilian death indicate a desire not to defend CIA operatives who might face charges stemming from a bona fide attempt to carry out their duties? It honestly sounds like a non sequitur to me. Surely a desire to maintain a defense for government operatives who cause civilian deaths doesn’t require the president to order them to kill civilians.
Do you mean Al Qaeda? Or are you saying the Taliban is more directly responsible for 9/11?
December 15, 2009, 11:22 pmGlenn Bowen says:
The stand-up dudes in this administration?
Two words: “trust them“…
December 15, 2009, 11:32 pmBrian G. says:
The real question is why aren’t a ton of people under indictment or in jail for the murders carried out through the use of a Predator drone? Bush, Cheney, Rumsfeld, Ashcroft, and Rove should all be in jail for what they have done. At least Obama obeys international law, unlike Bush and Cheney, who are war criminals that should be tried at The Hague and then imprisoned for the rest of their lives.
December 15, 2009, 11:50 pmAllan Walstad says:
Well said, Zuch.
What Obama should have done from the get-go was note that any reasonable mission in Afghanistan had lapsed, and get the hell out. We are really up to our necks in dirty business.
December 16, 2009, 12:21 amD.R.M. says:
The Caroline Incident suggests the answer is yes.
December 16, 2009, 12:22 amSoronel Haetir says:
I also don’t see the complaint about not going after targets that would have too high a political cost. We have reasons to keep the Pakistanis more or less happy in this matter. Refraining from drone strikes in some or all cities seems like a reasonable first choice.
December 16, 2009, 12:37 amJoe Triscari says:
How bizarre. If Western Europe has taught the world anything in the past few years it’s that they will not use force to enforce a foreign policy they think is humane.
Fourteen years ago Europeans were assigned task of preventing Muslims from being massacred by Christians in Srebrenica. When the killers came they promptly held the gates open. Europeans still blame Americans for not coming in sooner to prevent the Europeans from covering themselves with fear urine. Americans had to cross the Atlantic to do the job Europeans refused to cross the street to do.
What do they think their guards will do when the commando team comes to take the prisoners back? Will they declare war? Can Europeans possibly imagine they will stand up when the shooting starts when they’ve spent the last decades looking for excuses to snivel at the heels of their declared enemies? Do they really think a serious scolding will keep that from happening?
December 16, 2009, 1:21 ambjorn says:
“I would have a much greater level of concern that the administration would not back me up in case of an indictment in a European court, for example.”
I suppose it’s probably a good thing that our military doesn’t rely on irrational cowards such as yourself to operate the drones, then.
December 16, 2009, 1:42 amarch1 says:
Kenneth Anderson,
1) I would really like to see you directly respond to Cornelian’s Seattle/Russia scenario in a manner which clarifies whether you believe that there are self defense prerogatives which apply only to the United States and not to other nations.
2) I’d also be interested in your response to Guy’s first paragraph. Are you saying that Obama’s reluctance to expand drone strikes suggests that he is likely to not protect covert operatives who act under his direction? If so, why do you believe this? If not, what are you saying (sorry, got a 404 error when I dereferenced the Newsweek URL, which might have clarified the matter)?
December 16, 2009, 2:23 amTitle10vs50vsAllNessecarryMeans says:
I have some rather large concerns with the whole basis of the question. I have been present in several POCs and SPOs and have never ever seen a CIA “drone operator” – let alone a CIA representative – press the magic button. Thats a BIG GIANT NO NO… Title 10 vs. Title 50. Launching weapons against foreign enemys (regardless of their location) does not fall under the CIA’s charter for “unconventional warfare” (i.e. to support or stimulate armed resistance elements in their homeland against the regime in power, or to employ irregular troops to invade a country and unseat its regime – or a combination of both). I don’t care what Presidential Finding you read, if someone tried to pull that in the real world there would be several nice men with automatic weapons there to convince them otherwise.
Sorry to burst the bubble…
December 16, 2009, 2:34 amDavid Nieporent says:
I think Ricardo answered it quite nicely. If people use your country as a base of operations from which to attack another country, and you refuse to do anything about it, you have committed an act of war. (If you can’t do anything about it, then it isn’t really your country at all, regardless of what a map says.) If the U.S. has a policy of knowingly harboring terrorists, and will neither stop them, arrest them, prosecute them, nor turn them over to Russia, then sure, Russia would be justified. (And on the flip side, if Pakistan was willing and able to stop these people, then the U.S. would not be justified.)
December 16, 2009, 5:29 amPersonFromPorlock says:
The problem is that when given a lawful order to do something that a future government may not defend as a lawful act, the actor has a choice of being punished now for refusing or (maybe) being punished later for complying. Leadership that doesn’t involve loyalty down is pretty self-destructive.
December 16, 2009, 6:35 amLysenko says:
Actually, it is very specifically the job of the CIA and certain other government employees to break the law: at the very least, the laws of the countries in which they operate (even collecting intelligence passively tends to violate espionage statutes), and quite possibly “international law” as well, though that one’s harder to call since international law is as far as I can tell almost completely incoherent on the subject of peacetime espionage. They are expected to obey US law, yes, but that’s something of a moot point when they are ALSO expected not to conduct active operations in areas where the US legal system has jurisdiction.
December 16, 2009, 8:27 amKevin P. says:
David is exactly right. The only reason for the drone attacks in Pakistan is that Al Qaeda and the Taliban take refuge there and regroup to plan more attacks against a neighboring sovereign state. The state of Pakistan has been consistently unwilling and/or unable to exercise its sovereignty to prevent these attacks. If similar circumstances applied to Russia and Seattle, Russia might well be justified in carrying out similar attacks.
December 16, 2009, 8:34 amKenneth Anderson says:
Re the Russians bombing Seattle … I am not going to try to answer that here, but will simply refer you to the section at the back of my chapter on targeted killing, discussing “comity” and countries where it is permissible to do this and countries where it is not, and the criteria for establishing a difference. Free download at SSRN.
December 16, 2009, 8:42 amBuddy Hinton says:
So there is a Mexican druglord living in a tall hotel in San Diego right near the water and directing operations in Tijuana. US officials are deciding whether they want to arrest the suspect or not, but it is going to take time to properly evaluate Mexico’s voluminous evidence because US officials are busy people. Mexico decides that there is not the luxury of time. So they sneak a missile into US waters, blow up the hotel and kill the druglord (along with some innocent US citizens) in time to prevent the assassination of the mayor of Tijuana and Mexico’s president.
Mexico then pleads self defense and it turns out that its evidence that immediate action was required is quite strong. Would Mexico have been good to go on that?
December 16, 2009, 9:16 amInstapundit » Blog Archive » SHOULD CIA DRONE OPERATORS worry about legal liability?… says:
[...] SHOULD CIA DRONE OPERATORS worry about legal liability? [...]
December 16, 2009, 10:18 amKen Arromdee says:
This isn’t very different from asking if they can invade us using ordinary soldiers in an ordinary war. The answer is “if the war itself is justified, then so is the invasion; if the war isn’t, then the invasion isn’t either”.
It sounds like you’ve stipulated that the war is justified, so the answer is yes. I wouldn’t like to be a civilian killed here. But then I wouldn’t like to be a civilian killed in a normal war with Mexico, and it would be silly to say that that means they never have the right to go to war with us.
December 16, 2009, 10:22 amBuddy Hinton says:
I don’t understand your reference to war in my hypo. Wouldn’t the US just say, “Now that we have had time to review your evidence, we see that it was strong and that your act of self-defense was legitimate. So, there is no need for a war between us here. We will strive to respond more quickly in the future so hopefully you will not have the need to blow up any more hotels.”
It seems like what some of the drone apologists posting on this thread would say for the sake of intellectually consistency.
December 16, 2009, 10:32 amJGreene says:
Let me make a brief comment and extend the arguments in the preceding posts to the idea of American Sovereignty – F..k them. If we do not have leaders who will tell Euroweenies to “STUFF IT” we will continue to be nibbled at around the ankles.
In addition, we should make it clear that Israel is an American Friend and Euroweenie antisemitic actions will be strongly resisted by the United States.
Who are these midgets?
December 16, 2009, 11:18 amBuddy Hinton says:
The CIA operators aren’t worried about “war” so much as other punishments. But the idea is that if they acted in legit self defense of their nation, then it would seem that Mexico also acted legit when it took down that hotel in my hypo.
I can see someone staking out a position that the drones are okay, and so, by the same token, would the hotel levelling have been in my hypo. What I am more curious about is whether anybody could try to defend the position that the drones in Pakistan are okay, but the hotel levelling in my hypo would somehow not be okay. So far no one has taken this latter position. Maybe no one cares. Or maybe no one wants to try to defend an inconsistent position. Who knows.
December 16, 2009, 11:20 amKen Arromdee says:
The point is that the question “is it right to send missiles at another country” is very similar to the question “is it okay to go to war with another country”. You can’t say that shooting a missile at a hotel is justified or not merely because it’s shooting a missile at a hotel. You have to look at how moral your goal is, how much force you need to achieve that goal, how correct your assessment of the situation is, etc.
If, as you specify, Mexico had correctly figured out that they needed immediate action or their leader would be killed by a druglord, then they would be justified. (Of course, it’s unlikely your stipulation would be true in practice.)
December 16, 2009, 11:21 amrbj says:
Buddy, I think the answer to your Mexican hypothetical is Pancho Villa. The US did cross the border to attack him & his “army” after he committed attacks in the, resulting in US civilian deaths. This was done without declaring war on Mexico.
So if a gang leader in the US was ordering the killing of Mexicans, especially in Mexico, the Mexican authorities appealed to the US to help and the US was unwilling or unable to help, then yes, Mexico would be justified in using a missile (or an assassin) to remove the threat to its citizens’ lives.
December 16, 2009, 11:23 amEzra says:
Really? Aren’t you conflating two different issues? If the war is just and the goals important, then winning it, including particularly by killing enemy leaders, is important and humane, as it will speed the end of the conflict. The Just War notion of proportionality remains w/re collateral damage, but that’s not what’s motivating objections to drones or killing Mullah Omar. Rather, these objections are much more fueled by a view that the war itself isn’t just or has no discernible goal. And there’s a logical argument to make that just or not, there isn’t any winnable peace here, and hence no goal worth fighting for.
But, if that’s the view, then you can’t continue the fight. When Obama has the conviction to say ‘game over,’ then this discussion will be interesting. Until then, so long as he’s willing to put Americans in harm’s way, and so long as he’s willing to tolerate violence and death (just low-intensity, and in ways that don’t attract the media attention that drones seem to), the least he can do is support our troops’ access to and use of the best weapons we can provide them in furtherance of the mission we’ve sent them into harm’s way to pursue. Obama himself has defended the mission. Let him not be heard as justifying limitations that undermine our soldiers as they serve the mission he outlined.
December 16, 2009, 11:37 amSteve White says:
It would be helpful to understand the settled principles of international law that apply to this situation, as opposed to opinions on said law or claims regarding ‘emerging’ international law (that last one being whatever a leftist NGO apparatchik claims international law ‘should’ be).
If I understand this correctly, under settled international law, we and the government of Afghanistan (such as it is, stop snickering) claim the right to go after bad boys in Pakistan because said bad boys are directing an insurgency against Afghanistan, our ally. Pakistan, supposedly our ally and to whom we give billions of dollars a year in aid, nevertheless supports the Pashtun/Taliban insurgency since they view the Pashtun region as their sandbox and view us as gullible, foolish infidels. Therefore they’ll support Mullah Omar, etc., and not stop the Talibs from attacking us and our ally.
Is it indeed settled international law that we can therefore go after the Talibs in Pakistan? Because if it is, then whether we do it by asking the Marines to storm the front door or do it by drone-zapping the occasional bad boy is irrelevant. Either causes collateral damage, that being the wrecking of stuff and the deaths of
camp-followersinnocent civilians. Either violates Pakistan’s claim to sovereignty.Now if it is not settled international law, then we can either rely on a leftist NGO interpretation of ‘emerging’ international law or we can revert to the primordial law of ‘might makes right’ (which might be more sensible and safer than the former).
But whatever way one sees the ‘law’, we should strip away the veil that prevents the situation from being clearly seen. The Taliban is an insurgency. Pakistan is aiding the insurgency significantly to further its own interests in the region. The Afghan government, duly recognized as the legitimate government, is trying to stop the insurgency. The US and NATO have allied ourselves to that government to further our own interests in the region.
Now either international law on this point is settled or it isn’t. Either we have the right to pursue the Talibs across a line on the map or we don’t.
December 16, 2009, 11:37 amBuddy Hinton says:
My hypo is different because with Pancho Villa there presumably weren’t any collateral damage deaths. With my San Diego hotel hypo and with Pakistan there are.
I am curious as to why the one poster found my hypo unrealistic. Is it that, in the real world, US would always act quickly on Mexican intelligence regarding threats to Mexico? If so, I am not sure I buy that. Here is an Onion link that helped me think of the US-officials-slow-to-react part of the Mexican hypo, anyway:
http://www.theonion.com/content/news/u_s_finally_gets_around_to
December 16, 2009, 11:50 amPubliusFL says:
There’s a magnitude issue too, though. The typical drone strike target is a car, SUV, house, etc. Your Mexico hypo proposes flattening a high-rise waterfront hotel in San Diego. Which do you think would result in MORE collateral damage deaths? Which do you think might be more subject to criticism on the ground of disproportion?
Well, if The Onion says it…
December 16, 2009, 12:18 pmJMA says:
“Do the Russians have a right of self-defense that includes the right to fire missiles into that building in Seattle in order to kill the person they consider to be a terrorist?”
Under the reasoning for the whole drone thing, as I have been given to understand it, “Yes, provided that the US will not or cannot deal with the Russian terrorist in an appropriate manner.”
Why anyone would ask a question so simple that *I* can answer it, I don’t know.
December 16, 2009, 12:18 pmrbj says:
There were:
“In June, Pershing was informed that Villa could be taken at the small village of Carrizal, northwest of his command center at Dublan. (Map 2). When the Pershing’s troops assaulted the village on June 21, they quickly realized they had been hoodwinked for they found themselves fighting “Carranzistas,” not Villistas. Scores of “Carranzitas” were killed or wounded. Villa was reported to have watched with much delight — from a safe distance — as his two enemies battled each other in total confusion.13″
The unfortunate American attack on Mexican government troops became known as the “Carrizal Affair” and created a such a rowe that war with Mexico seemed possible.
http://www.hsgng.org/pages/pancho.htm
December 16, 2009, 12:19 pmTweets that mention The Volokh Conspiracy » Blog Archive » Should CIA Drone Operators Worry? -- Topsy.com says:
[...] This post was mentioned on Twitter by Tom Foreman, Eugene Volokh. Eugene Volokh said: Should CIA Drone Operators Worry?: If this short report in Newsweek is true, then I think I would worry about l.. http://bit.ly/5XIRKL [...]
December 16, 2009, 12:26 pmBuddy Hinton says:
If a drone gets 0 bad guys and 1 innocent guy, and the Mexican missil gets 5 bad guys and 95 innocent guys, then the Mexican proportion is much better.
Are we keeping any sort of track of how many good guys or bad guys the drones are getting? If not, then I would have to say that proportionality does not matter.
December 16, 2009, 12:26 pmBuddy Hinton says:
“Bin Laden determined to strike in the US”
Zacharias Moussaoui’s laptop
anthrax taken from US military facility
etc.
etc.
December 16, 2009, 12:29 pmConnecticut Lawyer says:
yankee wrote,up above: “Government officials are supposed to obey the law, and the threat of punishment is supposed to give them an incentive to do so.”
American officials are supposed to obey American law. If they violate American law, it is up to elected American officials to decide whether to exercise prosecutorial discretion and prosecute them. There is no role for foreign governments to play in this.
Ceding any power to a foreign country to make those decisions with respect to the conduct by American officials or servicemen acting in the service of the United States would be an irresponsible abdication of sovereignity. Of course, no one objects to a foreign country enforcing its laws against Americans who violate the laws of that country in that country. If an American CIA agent kills his wife in a jealous rage, and he happens to be in London at the time, well, the English police would have jurisdiction and could decide to prosecute, no problem. But for the UK Government to decide to charge a CIA officer located in the US (or anywhere outside of the UK) with murder because he directed a predator missile at some village in the Hindu Kush, well, that’s would be a direct attack on American sovereignity.
Of course, the attempt by an official of the British Government to arrest Livni for supposed “crimes” committed in the war between Israel and Hamas is equally a direct attack on Israeli sovereignity.
The sad truth is that Obama doesn’t care because he knows that his personal popularity shields him, and probably his direct cabinet officers, from this kind of attack, and he doesn’t give a s**t about American sovereignity or protecting CIA officers and others who will continue to serve their country after he has retired from the field.
December 16, 2009, 12:48 pmjerry says:
I’m new to this whole tubes thing, and since no one else has mentioned it, maybe my mouse is just borken, but that linky to Newsweek doesn’t seem to take me where I think you wish me to go.
December 16, 2009, 12:59 pmAnne Herzberg says:
For more on this topic, please see my monograph: NGO “Lawfare”: Exploitation of Courts in the Arab-Israeli Conflict
http://www.ngo-monitor.org/data/images/File/lawfare-monograph.pdf
December 16, 2009, 1:16 pmSoap MacTavish says:
Buddy,
I think your hypo was answered ad nauseam, but I’ll help. The answer is yes, Mexico would be in the right to flatten the hotel if:
(1) the US was at that time a “failed state” (that the US would delay in assessing Mexican “intel” does not mean it is powerless in its territory, merely that the DMV finally took over the gov’t);
(2) the threat was grave enough against Mexico (the mayor doesn’t count but going after the Mexican president might be considering grave enough); and
(3) no more particularized method was available (comparing a drone strike to flattening a hotel, really?).
Number (1) is key for me and why I would be okay with both the hotel massacre and preying on mountain troglodytes in Pakistan or Afghanistan: if the alleged “sovereign” can’t deal with the pirates in his territory, then why should I care if I anger that “sovereign” by taking direct action against those pirates myself? What’s he gonna do about it?
The problem of course is who gets to label whom a “failed state.”
December 16, 2009, 1:21 pmBuba Rooni says:
If the Russkies had a tacit agreement with the Americans to conduct such operations, yes.
If the Russkies had tried vainly to get the Americans to cooperate and take action against such targets in the past and the targets always ‘escaped’ at the last minute and this lead the Russkies to conclude that the Americans were either actively helping the targets or at the very least turning a blind eye towards such machinations, yes.
Now the Russkies would have to make the political calculation as to whether the end result was worth a general war with the Americans, but if they decided it was so it would be their right as a nation state to protect themselves.
Unlike sophmoric individuals who devolve such real world issues into moronic lawyerese, grown ups in the real world must and do perform such calculus daily.
December 16, 2009, 1:37 pmBuddy Hinton says:
I am comparing the flattening of the hotel to all the drone strikes combined.
December 16, 2009, 1:57 pmPubliusFL says:
Oh, all the strikes combined? In that case your hypo is a little flawed, because obviously the scores of strikes conducted weren’t aimed at getting the same single individual
December 16, 2009, 2:31 pmdrug kingpinterrorist. To make it roughly comparable, we could say the hotel has about 1,000 people in it. About 20 are drug gang leaders, another 700 or so are “foot soldiers” in the gangs, (many armed) and the remaining 300 or so are innocent civilians. Under those circumstances, if the U.S. refused to take action to detain the hundreds of militants gathered in a hotel on U.S. soil and Mexico had a fleeting opportunity to strike at them, then yeah, there’s a decent chance the strike is justified.zuch says:
Begging the question. You are assuming the order is lawful (and not just awful). If it’s lawful, you don’t need the gummint to defend you (but it should and will). If it’s not lawful, the gummint shouldn’t be defending it. Why you think otherwise is beyond me.
Cheers,
December 16, 2009, 2:32 pmgs says:
I’m probably with Connecticut Lawyer on this: Of course, the attempt by an official of the British Government to arrest Livni for supposed “crimes” committed in the war between Israel and Hamas is equally a direct attack on Israeli sovereignity. If the British Government endorses the magistrate’s action, it indeed is attacking Israeli sovereignty.
If not, a variety of responses suggest themselves, ranging from a pie in the face to snatching the magistrate to face an Israeli tribunal. Rogue actors want to polarize the situation, drag in governments, and incite public opinion to their side. This suggests that humiliation and ridicule may be more effective countermeasures than outright retribution.
***************
Despite not being a lawyer, I find the legal discussion here interesting and don’t wish to disrupt it unduly–but it’s curious that the British magistrate did not issue a warrant for Tienanmen Square, Tibet, or the Uighurs.
Just one of those things, I suppose.
December 16, 2009, 2:57 pmDavid Sucher says:
“…to disincentivate American intelligence officials from doing anything that they are not 100% sure will be legally protected now and in the future.”
Uh, I think you just shot down your whole argument.
Maybe you’d prefer a policy which says : “Encourage American intelligence officials to do things which are not 100% legal.”
Do you really think that the latter is a wise policy?
December 16, 2009, 2:58 pmmidasear says:
Clearly US courts have jurisdiction over Mexican individuals present in the US with respect to actions carried out inside the US.
But so what?
The analogous question is actually whether a court in Great Britain or some other uninvolved nation, acting on the motion of a third party private citizen or organization, ought to be able to assert primary jurisdiction and conduct a criminal inquiry into the hypothetical San Diego hotel explosion just because Mexico’s then-foreign minister happens to be visiting London.
December 16, 2009, 3:04 pmPersonFromPorlock says:
For all practical purposes, any order from competent authority is lawful and the subordinate who refuses to comply is playing ‘you bet your ass’ with the other guy’s dice. It’s as unworldly to expect non-compliance with an order that comes down the chain of command as it would be to expect a lower court to demur on constitutional grounds with a Supreme Court precedent. And to give the comparison a little more bite, assume that the demurral, if it weren’t upheld by that same Supreme Court, would put the lower court judge in Leavenworth.
Now, yes, if the order is “Here’s a baby; kill it” then disobedience is ‘condoned and expected’. But real orders tend to be things like “Target coordinates are x, y, Time on Target is 1524Z” and there’s just not a lot there to justify refusal.
December 16, 2009, 3:26 pmBCKane says:
I have noticed a few comments about Obama being selective or reducing the number of drone attacks in Pakistan (supposedly unlike Bush). I was wondering where people were getting this information. According to the NYT (not known for anti-Obama sentiment) the number of attacks have increased, not to mention that was one of the pillars of Obama’s get tough on terrorism strategy.
Just wondering why people think Bush would be more guilty than Obama in the use of drone attacks.
December 16, 2009, 3:28 pmzuch says:
No. It may be a defence (see, e.g., U.S. v. Barker) to be “just (reasonably) following orders”, but that hardly makes “any order from competent authority” lawful. If such were the case, we could just save ourselves a bucket of cash and fire all the Congresscritters. But you might not want to stick around for the result.
Cheers,
December 16, 2009, 3:39 pmBama 1L says:
Surely with the Mexico and Russia hypotheticals, the important question is not whether the strike on American soil would be legal; it’s what the American response would be. Frankly, I do not care how good any foreign government’s reason is for blowing up a building here. I don’t want them doing it and I want them hurt badly if they do.
December 16, 2009, 3:44 pmkumquat says:
Earlier commenters have asked this, but it doesn’t seem to have been addressed yet:
What in the Newsweek report suggests Obama won’t defend drone operators? All it says is that he doesn’t want to use drones against targets in Pakistani cities, because of the extra civilian casualties and the likelihood that it would screw up relations with Pakistan.
December 16, 2009, 3:45 pmAllan Walstad says:
PFP:
1. The second paragraph contradicts the first.
December 16, 2009, 4:31 pm2. “I was only following orders.” Is that it?
3. Suppose there’s a baby at x, y, and t?
PubliusFL says:
How would you expect the drone operator to know, assuming he doesn’t see a baby lying in the middle of a field in the camera displays? The coordinates probably designate a building where someone is expected to be at time t. It isn’t reasonable to expect the drone operator to always ask: “Who is the target? What has he done? Who else is there? What’s your intelligence identifying him as a bad guy? What’s your intelligence indicating that he’ll be there at time t? How reliable is this intelligence and how do you know?” Answering those questions is the job of other people, and under most circumstances it’s reasonable for a drone operator to expect everyone else to do their own job while he does his.
December 16, 2009, 4:58 pmPunkindrublic says:
Oh, there’s the Master Arm switch;…now where’s that damned trigger? Hawk away!
December 16, 2009, 6:21 pmBuddy Hinton says:
No. It is the families of the innocent victims who do not get paid enough. The real sacrifice and the real suffering is theirs.
December 16, 2009, 7:03 pmGarandFan says:
Be interesting to know what Barack really thinks. But then, that’s subject to change at a moments notice. After all, we’re not talking about someone who has a political backbone. Or an ethical one for that matter.
December 16, 2009, 7:59 pmFivo says:
Well a fellow citizen was recently murdered here in San Diego by the Mexican Gov.. er.. Cartels in order to hold the patriarch for ransom. He was an involve community leader and restaurant owner right here in Chula Vista snatched off the street, taken to TJ and then murdered when the criminals couldn’t figure out how to speak the Chinese he was babbling (that being his native language) after they nearly beat him to death at first. So yes, Mexico is already doing what you suggest with the full cooperation of the County, City, State, and National governments supposedly established to protect our citizens.
December 16, 2009, 8:54 pmPintler says:
If you’re on a boomer or sitting alert by a minuteman silo, there probably are babies at (x,y,t), but the launch order is still lawful. Not that there is much law, or anything else, at that point.
Being told at My Lai ‘shoot the kids’ – that’s an unlawful order.
December 16, 2009, 8:59 pmavocationaviator says:
A bit of historical context: The use of aerial bombardment, of which the predator is just like any other bomber, was first strongly advocated buy Marshall Giulio Douhet (Italy) before WWI(one)! The post-WWII US Strategic Bombing Survey showed the effectiveness of strategic bombing. USAF’s Gulf War Air Power Survery (Desert Storm)showed how once airpower campagin effectiveness. The Shock and Awe (grossly misnamed) campaign in Iraq once again illustrated effective, strategic airpower. I did not see in your post a description of why the drones are bad…but I infer you think it is “too unfair” because our pilots are not hanging it out over/near the target area and thus you think using drones is murder.
Over the years, the ability to hit the target more precisely is exactly where our technology has taken us…developed by Americans…to prevent Americans from dying…killing bad guys in their homes rather than them killin us in our homes. The only mistake our US airpower has made in redefining the “strategic” from carpet bombing in WWII to precise, personalized strikes now, is apparently not educating our own public enough on how killing them there is a good thing. We do not want a fair right in combat…we want it completely lopsided on our side. Make no mistake, THEY WANT TO KILL YOU AND ME, dude.
Remember under international law these are illegal combatants, and as such, can be ordered to be summarily executed by US miltary officers on the battlefield. Instead, because we are Americans, we treat them as POWs. It is not murder to kill these illegal combatants under the Geneva Conventions rather it is proportional response as well-defined in those same conventions.
Remember the Pred strikes are legal airpower used to kill illegal combatants as defined by the Geneva Conventions. So, let me ask under what charges you imprison a legally elected administration, conducting a legal war, legally sanctioned and not revoked yet by Congress, using legal force, against illegal combatants? Your argument fails.
December 17, 2009, 8:51 amzuch says:
This is not true. You can kill someone who’s still fighting, but you can’t execute someone who’s hors de combat without a trial.
Cheers,
December 17, 2009, 8:54 amBuba Rooni says:
You need to check your handy dandy paperback edition of the Geneva Convention. It specifically pertains to combatants captured during military operations. To be a legal combatant and thus be covered under the protections of the convention, you must meet the following four conditions under Article 4:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
If a subject doesn’t meet all four conditions, they are an Illegal Combatant and the protections of Article 4 do not pertain.
Once a suspected illegal combatant is captured he is to be given the rights of a legal combatant ‘… until such time as their status has been determined by a competent tribunal’. What constitutes a competent tribunal? Two officers, commission or non-commissioned, works for me though I do not know how it is defined by military statute.
And a tribunal is not a trial! This is a wiki cut-and-paste definition of a military tribunal but I think it’s pretty close to what I understand it to be:
‘A military tribunal is a kind of military court designed to try members of enemy forces during wartime, operating outside the scope of conventional criminal and civil proceedings. The judges are military officers and fulfill the role of jurors. Military tribunals are distinct from courts-martial.’
The important part in there is ‘…operating outside the scope of conventional criminal and civil proceedings.’
I hope it stays this way though it is obvious many in this thread have other aspirations.
December 17, 2009, 2:08 pmleo marvin says:
Then you consider the drone attacks responsive acts of war against Pakistan?
December 17, 2009, 2:46 pmzuch says:
Ummm, you missed CA3. Look it up:
Of course, this also prohibits torture and CIDT as well. And some people think that ignoring this prohibition is just the cat’s whiskers.
Cheers,
December 17, 2009, 10:07 pmzuch says:
Nonsense. You cited only subsection 2 of Article 4. There are 5 other sections, any of which, if they apply, will require that all of GC3 protections apply. And the GCs do not ever define or specify “illegal combatant[s]” or what’s to be done with them. That’s a manufactured term that the GCs don’t recognise or even mention. Search GC3 if you don’t believe me.
You’re new at this, right?
Cheers,
December 17, 2009, 10:13 pmBuba Rooni says:
Heck yeah I’m new at it!
Can’t you tell?
December 21, 2009, 12:58 pmBuba Rooni says:
I used the term ‘Illegal Combatant’ simply because the people we are discussing wouldn’t qualify as ‘Legal Combatants’ unless those four conditions are met in the GC. I’ve heard ‘Lawful Combatants’, ‘Unlawful Combatants’ and a few other terms bandied about as well to describe the subjects in question.
As for the ‘the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples’ thing, I believe that a military tribunal would fit the bill in the right circumstances.
Let’s not get all silly lawyerese here. It would be extreme to advocate rolling into a village a la the 2nd SS’s march into Oradour-sur-Glane in 1944 to get rid of those ‘combatant’ thingies we can’t agree to a name on. To go to the other extreme, an individual wearing no uniform or a uniform whose pupose is to conceal their identity on the battlefield captured in an act of war during the heat of battle is in precarious circumstances. Should some officers get together and decide after a review of the situation that execution is warranted, so be it.
Since officers are both judge and jury in a military tribunal that doesn’t leave much room for lawyers and I don’t have a problem with that. I trust that officers would adhere to the UCMJ and carry out their tribunal and impose whatever sentence in a professional and honorable manner.
I’m not sure, but I think that you are saying that execution can never be carried out on the battlefield. Is that your position?
December 21, 2009, 2:11 pm