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.

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.

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

jgreene: 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.

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.

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.

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.

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.

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?

orca:
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.

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.”

That said, Professor Anderson has written an excellent summary of the issues and for that he has my sincere thanks.

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?

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.

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.

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.

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.

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.

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.

Anonsters says:

I vote for an extended series of much shorter posts.

IANAL, but this post was a very informative one about a subject I have had difficulty getting my mind around. Thank you Kenneth

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.

TL;DR.

VultureTX: 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.

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.

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.