I’m writing from Cambridge, where I just finished a great short conference on targeted killing and drone warfare put on by the Harvard Law School National Security Law Society and Journal. The presentations should go up as video one of these days I hope!) and I highly recommend them if you are studying this topic. Particularly for us lawyer types, the presentations by engineering professor Missy Cummings and Kennedy School professor Tad Oelstrom — both former military aviators, among many other things — was highly informative about the real world of UAVs in military use. My thanks to all the students who put the conference together — we had a lovely dinner afterwards, and I enjoyed the conversation with them a great deal. My thanks to the law school as well for funding it — times are tough, even at places like Harvard — and I appreciate the dean and the school’s willingness to continue hosting events that allow for important legal and policy discussions to go forward. (Delayed a couple of days posting this — travel and then internet problems at home.)
I tried to use my time at the conference to think through some of the questions I’ve been raising both in my first published piece on this subject, Targeted Killing in US Counterinsurgency Strategy and Law, and in the long opinion essay in last week’s Weekly Standard, Predators over Pakistan. I’m going to do a series of posts extending some of those discussions.
Probably the most important conclusion for me from discussions following my Predators over Pakistan essay is that I have not been sufficiently clear, with myself or in writing, that the appeal I am making to self-defense law does not preclude the application of the normal laws of war in those places where there is an armed conflict. Discussion of this topic seems a little bit like the blind men and the elephant — the military people responsible for a counterinsurgency ground war in Afghanistan see Predator strikes in their theatre of conflict, quite rightly, as not a big issue. It is not different, really, from the missile fired by a jet 25 or 30 miles away — it’s just another standoff platform. The legal rules of targeting are no different, and it’s just another standoff firing option.
At the other extreme, however, is the CIA using Predators to attack a targeted designated by the President under procedures outlined in US statutes for covert action by the CIA. Is that different, legally? US forces are in an armed conflict with Al Qaeda, and members of AQ, combatants if we find them in Afghanistan, flee to Somalia — so we chase them down there and fire at them with Predators run by the CIA. Why isn’t that just more of the “armed conflict”? Same rules apply — geography is not really an issue.
I have argued that geography matters, not for its own sake, but rather more precisely, because in establishing whether you have an armed conflict to which the laws of war apply — displacing other regimes of law — you have to meet a threshold of active, sustained, etc., etc. hostilities and fighting (I’m not looking to be strictly precise here) if, as the US has said, particularly in the SCOTUS analysis, it is a non-international armed conflict with a non-state actor. I don’t think SCOTUS got it right. Moreover, it led to the unintended consequences of result-oriented jurisprudence, the Court seeking to find a basis on which to apply the standards of CA3, and leading the Court to conclude that a provision envisioned entirely (read Pictet) about internal civil war could apply by ignoring the territoriality phrase in CA3 to focus instead solely on the non-state actor part. I think the Court should simply have said that CA3 standards apply as some universal baseline standard irrespective of armed conflict, and it should left aside how it intended to get there, but it didn’t. It was not well-briefed on the issue, and waded into deep waters about the law of armed conflict with implications for many other important parties in the world.
Viz., it appears that territoriality is an issue after all. I don’t think the Bush administration got it right by defining the conflict as the “global” war on terror — it is one matter on which I agree with the critics, whether academics such as Mary Ellen O’Connell or organizations such as the ICRC. Nor can the AQ case be assimilated to WWII and chasing combatants around wherever they go — if you take the treaty language seriously, and the customary law intended by the United States and other states when drafting CA3 to keep the threshold of a non-international armed conflict high, then, yes, it matters legally that WWII was an international armed conflict and the AQ war a non-international one with a non-state actor. It seems anomalous, because despite the non-international language, we are following them around the world, but we have legally decided to focus exclusively on the non-state actor part, in order to apply CA3. If that is the case, then the customary law threshold matters.
But okay, I’m just me, another academic. The takeaway for the administration and its legal teams is something different. This conference shows once again that the US government’s view (that the global nature of the conflict, it can go anywhere and still be called armed conflict with Al Qaeda, is quite unexceptional and what’s the big deal) ... is like ships passing in the night with a large and very influential part of the international community. Jonathan Mannes, the ACLU lawyer who drafted the FOIA request which is soon going to ripen into a law suit over the US revealing its legal rationale for targeted killing, laid it out in the FOIA itself and in short form at the conference. He is a very smart young lawyer, and said what I have just said in much more sophisticated language. Jonathan (whom I like very much and I hope will not take this amiss) and I agree on two — and probably only two — legal propositions here: First, the US government needs to step up and state its rationale. Second, in an armed conflict characterized by the US itself as a CA3 conflict, the location of hostilities at a certain level matters. Maybe there is some international law group somewhere that agrees with the US government that this is simply not an issue — I don’t know who it might be.
The US government may think this legal account of combatancy obvious. If you think the question of the territory of active hostilities is simply irrelevant, then I suppose it is. The sole issue is the people involved — are the combatants in some pre-existing conflict, whom you can chase down wherever they happen to be and with whatever force is, or is not, required. But if you think the place of hostilities and their intensity have some (even perhaps unclear) relevance, then consider the sweep of successive extensions:
• The obvious and acknowledged-on-all-hands armed conflicts in Afghanistan and Iraq;
• border regions of Pakistan into which the armed conflict might be said to have spilled;
• the rest of Pakistan;
• Yemen and Somalia;
• beyond, as circumstances require, to chase down AQ elsewhere.
My view, for what it is worth, is that there are armed conflicts in Afghanistan and Iraq, and parts of Pakistan into which the fighting has spilled. The other situations should be addressed under the law of self-defense. To which we can add two other distinctions which, again, might seem obvious to the USG but do not seem so to the critics:
• Predator-based weapons controlled by the US military in some cases; and
• controlled by the CIA in others.
And, finally, a distinction that also seems not to be discussed much:
• Security situations covered currently, at least as far as the US is concerned, by the existence of armed conflict, on whatever basis determined, under the terms of the AUMF; and
• future security situations to which a US government will conclude it must respond with force against a non-state actor in some foreign territory, but entirely unrelated to AQ, 9–11, or any of our current conditions.
So the first takeaway is that the US government might think the legal situation sufficiently plain that it needs no adumbration. And that there are many critics, not all of whom can be ignored and some of whom are intimately connected to the some of the administration’s collective legal team, that think it equally obvious that the territory matters in some way.
The second takeaway is that the ACLU (and others) is not going to rest with “information.” The ACLU’s FOIA is an exceptionally well-drafted brief both to obtain information as the US legal position and, as much as possible, operational information. Jonathan is an extraordinarily talented young Canadian lawyer with strong knowledge of IHL. It also lays out the foundation of both a legal argument and a campaign for how to undermine the practice. In his presentation yesterday — I would urge government lawyers to watch it (hmm... hope the video goes up! ed.) — he was pretty clear about this, at least in my view. The most important point was not about “information” as such, nor was it even about the “conduct” of hostilities. On the contrary, it was a clear statement that the ACLU had decided to campaign on the issue of jus ad bellum, whether the US should be resorting to force and to what extent. The “incentives” or “disincentives” to use force if your own people are not at risk.
Jonathan said, for example, that one of the issues with Predators was that they removed the “natural barriers” that would otherwise have to be fought through in order to attack alleged terrorists. It made it (too) easy for the US to resort to violence. Well. I’ve heard it a lot, of course — it seems to be the only thing that many journalists learned from Peter Singer’s book, apart from the fact that Predators are (mostly) controlled in Nevada. But it would be hard to come up with a more direct statement that the issue for the ACLU is not the usual (at least surface) concern of human rights groups with jus in bello and the conduct of armed operations, but instead a belief that the US needs to be restrained — through direct and personal exposure to death on the part of its soldiers — in order that it have the proper incentives not to over-resort to the use of force.
What the ACLU (and everyone else who offers this, to my mind, quite stunningly callous argument, at least if you value the lives of American soldiers) seems really to be saying is that “we” — The United States? The ACLU? Angels looking down from heaven? “Neutral” referees of war? Who? — should not make it too easy for the United States to win its wars, if necessary by forcing its troops to fight their way through “natural barriers” and at the appropriate cost in American lives. Wow. Heck of a point of view, at least for an ostensibly American organization and its lawyers. Count me out.
I have difficulty understanding how this is the ACLU’s issue — but then I have great difficulty with its entire current national security frame as being its issue. The fundamental anxiety is that US fighters not sufficiently exposed to personal danger, thus making it too easy for the US to undertake violence. This basic point from Singer’s book has, I think, has been elevated into something much more than it is — more, indeed, than I suspect Singer intended. It is an academic point about incentives in the abstract. Law academics a little too in love with incentives-rationalist arguments love the point. Why not — essentially, it’s Coase for national security.
But the reality is that there is little reason to think that, however fun to think about as a “necessary” consequence of the incentivizing logic of drones, this single abstract proposition about drones drives decisions to use or not use violence by the United States. Possible. But one had better have some actual data and a really good way of eliminating other explanations or interactions with other explanations. Those writing about it — I include myself — do not even try. But, right or wrong about that, it has turned into a key driver of this issue for groups (e.g., ACLU) that, at least on the surface, are ostensibly about the lawful conduct of war and not about whether the US resorts too often to force.
(I will also add that academics and intellectuals and elite lawyers who like to talk this kind of language of ‘optimally raising the personal risk level for American forces, because Predators and UAVs reduce the US’s disincentives to use violence, so to achieve the efficient level of the resort to force’ ... you all have no idea how it sounds to the rest of us Americans — and by that how deeply offensive to the rest of us, who in our naive and no doubt inefficient way think it would be a good idea if the United States killed its enemies in a way that reduced the risks to its forces, and think UAVs are an excellent way of doing so.)
(Try that in front of a Senate hearing, and I bet the result will be that even Senators Leahy, Boxer, and Schumer will vote to condemn you. Being too cool and refined to take sides is not always a sign of moral superiority (as I argue at the end of this article on humanitarian neutrality and its limits, in this European Journal of International Law essay, and in this short review, “What the Swiss Miss.”) Suggesting, however sophisticated the language, that superior intellects understand that “we” need to have more American GIs killed, or at risked, in order to reach the efficient equilibrium of incentives and disincentives to violence is not a winning argument. I also think, however, that the folks inclined to make this kind of argument cannot restrain themselves from making it, because it lies at the heart of what they truly think, while also confirming both their morally superior position of “neutrality” and their intellectual superiority, too, and all the rest is merely a minor add-on. If I sound offended by it, I am.)
(Actually, I don’t think it is morally right, either, or all that smart, as an intellectual position. Reductivism pushed hard winds up being either sublimely elegant or else dumb in tarted up language or else true but trivial. This one falls into the ‘dumb’ box. It’s a convenient, too-quick, reductivist application of consequentialist theory, whereas a more subtle, but harder moral view is to understand that ... sides matter! The question is how, and that is something that cannot be reduced down to a reflexive consequentialist framework. It is a genuinely deep question in the moral psychology of affect and affection.)
VultureTX says:
“Authorization For Use of United States Armed Forces
(a) IN GENERAL– That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements–
(1) SPECIFIC STATUTORY AUTHORIZATION– Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS– Nothing in this resolution supercedes [sic] any requirement of the War Powers Resolution. ”
Well the 2001 AUMF did not say anything about location limitations. but did mention specifically the non state actors.
In the 21st century maybe the message will get through to not attack the US or its citizens; because our UAVs will respond with no reluctance over casualty losses on our side. Seriously sue the heck out of us in court, but honor killings , kidnappings and attacks on US assets should have a zero tolerance policy. The whole “unfairness of a competent military force” routine psychobabble is presently being used on Israel, and the US is now getting the same treatment. There is no obligation in defense of our nation for our soldiers to die, or even be put at risk.
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March 9, 2010, 2:36 pmChrisHo says:
On the subject of drones, the latest pop sci has a low collateral damage drone as its feature, in other words an assassination device. Who would ever know you used it unless you get caught. The later being a possibility as we do lose control of these occasionally.
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March 9, 2010, 2:39 pmorca says:
The Islamists don’t seem to be too worried about dying for their cause.
America, on the other hand, with the drone attacks, send the exact opposite message.
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March 9, 2010, 2:42 pmAnonsters says:
I vote for an extended series of much shorter posts.
TL;DR.
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March 9, 2010, 2:43 pmCrunchy Frog says:
It’s not just American GI lives that are saved by a targeted Predator strike, but the lives of the current holders of the territory that would have to be displaced in some manner for American troops to reach the target.
My personal feeling is that the AUMF gives the US enough of an international fig leaf to conduct its current operations against Al Qaeda, with the caveat that we only act in those countries where the government is unwilling or unable to say no, or is actively hostile to us. In Pakistan and Yemen, we are acting with the tacit approval of the governments in areas that are outside their control. In Somalia, there really is no government to obtain permission from, so we do what we must, as does everyone else. If, on the other hand, we discovered a base of operations in say, Turkey, we would inform the Turks and they would take care of it themselves.
The time to worry about justifying action against a hypothetical non-al Qaeda opponent (say, Phillipine separatists) would be when they became such a problem that they required American intervention. This, presumably, would need Congression authorization to go past the 60-day War Powers Act window.
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March 9, 2010, 2:49 pmLe Messurier says:
IANAL, but this post was a very informative one about a subject I have had difficulty getting my mind around. Thank you Kenneth
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March 9, 2010, 3:37 pmBZ says:
OK, I find this and succeeding paragraphs much clearer than in the prior thread on this topic. I had pointed to the use of grunt-carried UAVs, and cannoneer Common_Sense noted that there was no real distinction between those and artillery. Your argument looked from theater -> Langley; ours went theater -> front. Now I see that, in either case, you were taking geography out as an issue. All of those elements were “stand-off;” mine just gave the stand-off element to the boots on the ground (which seems to be an increasing element in U.S. military development).
You posit two “extremes:” theater analysis and CIA analysis. But it would seem that those are two parts of one side of the argument. The true “extremes” here are military and Mannes. “We can shoot from safety” vs. “No, you must be exposed so it’s like a duel.”
If I accept your analysis (and I do), and layer in the ACLU’s Mannes’ analysis that force is never acceptable unless there is a credible “self-defense” element to the person pressing the button (which seems absurd), the combination seems to undercut any jus in bello at all. And that may be your point, after all.
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March 9, 2010, 4:33 pm[insert here] delenda est says:
BZ, there is a legitimate issue as to the implicit premises of the ACLU position discussed. However, if I am right, the point of the two extremes as discussed by KA is better understood if you recall the similarity between UAVs and missiles.
If someone launches a missile in a war zone, the rules are pretty clear (and very permissive). If one launched a missile at someone in a foreign country with whom one was not at war, however, the rules are prima facie also rather clear (and extremely impermissive).
The one legally valid exception to that last point is the law of self-defence with a few uniquely modern extenuating circumstances thrown in. Which I think is pretty much the point of most of KA’s last 10,000 words.
I thought this was a really useful and clear post, fwiw.
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March 9, 2010, 6:17 pmJohn Moore says:
The ACLU is showing once again that it has wandered far from its founding mission, and is simply another dangerous arm of the trans-nationalist lawfare against America.
I hope the American people do get to hear those words about putting our forces on the ground. Then they would discover what a fraud the ACLU really is, and stop contributing.
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March 9, 2010, 9:41 pmJohn Moore says:
BTW, thanks for the excellent post.
There is a case to be made for “boots on the ground, at risk” — but it isn’t the ACLU’s. It was clear in the ‘90s that too many folks in the middle east viewed the US as cowardly, willing to throw cruise missiles around or drop a few bombs, but not get go mano a mano. The 1991 Iraq invasion probably enhanced this view, when we pulled out leaving Saddam in power and betraying the Kurds and Shiites. Putting forces into hard combat, such as Falluja, demonstrated once and for all that we have brave and incredibly deadly warriors among us.
That view may make some of the elite and the Europhiles retch, but it is important in many cultures — especially which must be either reformed or destroyed. Many Americans understand this, but sadly, too many “educated” ones do not.
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March 9, 2010, 9:46 pmJohn Moore says:
One more...
I suspect that the lethality of drone warfare will become more precise with time, specifically to reduce harm to innocents. Currently the missiles used were designed for killing tanks, not dismounted individuals. Hopefully the military is developing smaller, cheaper weapons with controlled lethality.
Already they have developed the Small Diameter Bomb — a 250lb bomb (500lb was the smallest in the arsenal) with a special casing which limits the lethal shrapnel radius very precisely.
As a fine example of this, and of battlefield ingenuity, during the Iraq War, some clever soul in the Air Force discovered that practice bombs (full weight, but concrete instead of explosive) made adequate tank killers:, tanks adjacent to civilian structures were crushed by the highly accurate weapon, with no damage to the structures.
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March 9, 2010, 9:52 pmshakala says:
It’s really good post
I suspect that the lethality of drone warfare will become more precise with time, specifically to reduce harm to innocents. Currently the missiles used were designed for killing tanks, not dismounted individuals. Hopefully the military is developing smaller, cheaper weapons with controlled lethality.
Thanks for sharing your information
Shakala
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March 10, 2010, 1:03 amInstapundit » Blog Archive » KENNETH ANDERSON on Drone Warfare and the Harvard National Security Conference. Probably the most… says:
[...] KENNETH ANDERSON on Drone Warfare and the Harvard National Security Conference. [...]
Stephen says:
In matters of war (an international action), any opinion, or action by the ACLU (or other such) should consider how other nation/states would respond to such opinions or actions. How would Russia or China respond to AQ if they had been attacked? Would they use drones? If yes would they consent to the Rules of Law that the ACLU is opining?
The Rules of Law applies to those who consent to those rules ... but when people who do not consent to the Rules of Law attack those who do consent ... how should they respond?
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March 10, 2010, 9:47 amrarango says:
Let me add my thanks for a wonderfully clear post about an extraordinarily difficult subject. As a former military officer I see drones as an extension of firepower and not theoretically different than, say, a sniper. That is, of course, a gross oversimplification, and I will leave to the members of the legal community of international lawyers to sort out the legal details.
That said, Professor Anderson has written an excellent summary of the issues and for that he has my sincere thanks.
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March 10, 2010, 9:59 amFM newswire for March 10, interesting articles about geopolitics « Fabius Maximus says:
[...] “Drone Warfare and the Harvard National Security Conference“, The Volokh Conspiracy, 9 March 2010 [...]
SDN says:
That comment is best refuted by General George S. Patton, Jr: “The objective in war is not to die for your country, but to make the enemy SOB die for his.”
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March 10, 2010, 11:16 amJMA says:
Once again, we have a substantial demographic that seems to believe the world as a whole is some kind of demented, sacrificial democracy in which spilled blood is the only way to vote.
I would argue that, insofar as this is the case, it is the spilled blood of one’s enemies that counts toward one’s cause.
Orca: Why do you believe that military personnel should die in battle rather than kick ass and take names like they’re paid to?
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March 10, 2010, 11:31 amDCP says:
Excellent article.
I would suggest another point for you to consider regarding attacks made in third countries. You make the argument that ‘geography matters’ and then discuss conditions under which such attacks are ‘legal’.
I am not a lawyer, however, I am under the impression that, under international law, a basic requirement is for a government to exert sufficient control over its territory so as to preclude that territory being used to launch attacks against other countries. If a government is unwilling/unable to prevent its territory from being used in such a manner, it is perfectly acceptable for the country being attacked to take any and all measures appropriate to prevent such attacks. Period.
I believe that one of the earliest examples of this doctrine involved Irish attacking into Canada from the US. The Canadians (British) responded by entering the US and destroying building, bridges, ferries, boats, etc. used by those who attacked into Canada.
I also believe that this was litigated at the international level and the Canadian actions were found legal and appropriate.
Are you aware of this and do you thinks it applicable to this issue?
Thanks.
DCP.
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March 10, 2010, 11:40 amPeter says:
I have an idea. The ACLU should sue bin Ladan and if he shows up in court to answer those charges, fine, then they can sue the USA for being not nice enough. Until and unless that happens they should butt out.
Some forty+ years ago a pair of those boots on the ground were mine. That made me sort of anti-war, I don’t like getting invpolved in any sort of a fight where Democrats control anything because they always stab the United States fighting men (and now women) in the back. And there is no worse enemy to the military than a left wing lawyer.
Well, my war is long over, we lost, thanks to the Donks. Now they are trying the same crap. Just curious, how many Americans have to die before these creeps get on board? Three thousand wasn’t enough. The thousands more in Iraq and Afghanistans weren’t enough. So how many? Or will it take a direct accack on ACLU headquarters by bin Laden himself?
The rules for terrorists should be exactly the rules for prirates up until the 19th Century. Kill them, when and where found. The rules for the ACLU shoud be the buzzsaw rules. Never monkey with a buzzsaw when it is busy cutting wood.
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March 10, 2010, 1:18 pmjgreene says:
My comments are similar to those responding to a previous article: “Lawyers do NOT belong in the theatre of WAR making legal distinctions”.
Of course that’s what Lawyers do. Hey, if there are legal problems with directed fire at individuals from UAVs the fact that the President OKs the action makes it OK.
The Congress can decide to include it in the prohibition of assassinations that doesn’t make sense either. You wage War against the United States you are going to DIE.
That is why I think we should simply DESTROY the Ruling Mullah theocrats in Iran who have been waging war against us forever. No need to decimate the entire country.
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March 10, 2010, 1:58 pmJohn Moore says:
I suspect there is a tacit agreement not to off heads of state, because it is too easy for their people to off you. Otherwise, sounds like a good idea to me.
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March 10, 2010, 2:45 pmDirtyHarry says:
This “legal quagmire” is precisely why, in the weeks after the 9/11/01 attack, I advocated as a response utilizing the “Letter of Marque” option contained in the Constitution.
By issuing, effectively, a declaration of war against a (or several) non-governmental entity(s), Congress could have covered virtually all bases in this discussion.
Of course, I also wanted to see us use the media against the Jihadists by producing a weekly “who we killed this week” program using carefully edited helmet-cam and sensor-cam video coupled with intelligence briefings on the targets... but that would be too much to hope for, I guess.
–Inspector Callahan
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March 10, 2010, 11:12 pmChris Travers says:
I’d be a little cautious about this:
You go on to say there is some sort of threshold regarding active, sustained conflict which must be met to displace other systems of law in a geographic area. However, I would argue that more is required than that.
Basically, one issue you can repeatedly run up against is that a very large number of terrorist plots against the US have some substantial nexus in the UK, and this nexus is probably greater in terms of prolonged activity than it is in, say, Yemen. Does this mean that if we have intelligence which suggests someone is getting ready to carry out an imminent attack on us, but we do not have enough evidence to satisfy British law enforcement, that we can send in predators to a city like London?
Instead I think geography matters for a reason you don’t mention: a predator attack is an act of war and if permission is not granted ahead of time for a strike which occurs in areas properly under the control of another country’s domestic law enforcement agencies, then we are going to war with that country.
It is hard to see how this would affect operations in Somalia at the moment, since there is no national government which properly controls the country for law enforcement purposes. Similarly I would be inclined to tell Yemen and Pakistan that as much as we respect their need for territorial integrity, if they can’t provide proper law enforcement to portions of those countries, we will not recognize their hold on those portions from the perspective of counter-terrorism operations.
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March 13, 2010, 12:28 pm