Charlie Savage reports in the NYT today that Philip Alston, the UN special rapporteur on extrajudicial execution, will be coming out with a new report next week calling on the US government to withdraw the CIA from conducting drone strikes and giving it over to the US military instead. The article has an extended and very interesting discussion of various debates inside the US government among lawyers over the right way to see CIA participation, in relation to lawful combatant status, unprivileged belligerency, and crimes defined in the military commissions.
It’s a fascinating discussion on the lawyers’ debate inside the administration. But let me reach broader than that frame, and offer a few comments on the larger intersection of ways in which one might, and ought to, see CIA drone strikes. This goes indirectly to Charlie Savage’s exceedingly interesting NYT piece.
There are two ways of seeing a call that drone strikes be turned over to the US military, rather than conducted by the CIA. One is fundamentally grounded in the binary that all uses of force must be either law enforcement or else armed conflict – and if so, there is no room for the CIA to be conducting these strikes. In that case case, the call to take the CIA out of it is a way of reasserting the basic binary. This is problematic from the US standpoint, if it is a way of reasserting this fundamental binary, since the Legal Adviser’s ASIL speech specifically preserves an independent ground of self-defense that is not a matter of armed conflict. If CIA participation is unlawful because the binary holds, then the US has simply rejected the underlying premise – indeed, said that it has never accepted it, going back clear to the 1980s and beyond.
The other way to see a call to take the CIA out of the activity is on the ground that because this is an armed conflict, uses of force must be undertaken by lawful participants, and the CIA, as a civilian agency, is not a lawful participant. Insofar as this is offered as something that is not driven by the fundamental binary above, then it is essentially a claim about the CIA not meeting the requirements lawfully to engage in hostilities – some version of the claim that the war with Al Qaeda is an armed conflict, and the CIA are not privileged combatants. This is a technically more complicated claim in the rules of war than much of the public discussion has treated it. Much of the public discussion seems to revolve around the idea that if you are a civilian, you are not allowed to take part in hostilities; the legal point, rather, is that there are numerous categories of civilians that have varying roles in direct participation in hostilities and the point is not to say that their participation is unlawful, it is that – if they were facing a lawful foe – they are themselves lawful targets. Whether they wear uniforms or not is a question of whether the circumstances in which they wear uniforms, or non-standard uniforms (e.g., special forces in Afghanistan), etc., is a question of whether they fail to distinguish themselves from the non-combatants. Insofar as they do this from Langely in some cubicle, that does not really present a problem.
As to the assertion that they have made themselves lawful targets – that would be true if engaged with a foe that could lawfully target anything. In the case of a terrorist group – Al Qaeda, the IRA, ETA, etc., the automatic assumption that military lawyers sometimes make, that jus ad bellum and jus in bello are independent, is beside the point; these groups have no reciprocal right to target anything, irrespective of whether, in a lawful conflict, something or someone would be a target. It is not the case that by flying a drone from Langley, the CIA operator is now a lawful target – he or shewould be if flying it in a conflict with, oh, North Korea, but not Al Qaeda. Al Qaeda has no belligerency rights jus ad bellum, just as it has no combatant privilege jus in bello. To suggest that the CIA at Langley has put itself into an “equivalent” position is not correct. If the CIA at Langley were fighting a lawful actor, its participants would be lawful targets – although not, merely in virtue of not wearing uniforms inside Langley, “unlawful combatants.” But not as regards Al Qaeda.
So, I don’t think that the special rapporteur gets legal traction on either the grand or narrow way of saying that the CIA should be out of it. There is a further policy – not legal – rationale, that the military has better legal mechanisms of target review, collateral damage and proportionality review, etc. I do not believe that is true – nor does Harold Koh appear to believe it is true, on the basis of his remarks at ASIL. Indeed, there is a good argument to make that the CIA engages in much more review of individual targets and makes the decisions at a much higher level than the equivalent military strike, and that moving review to the military would in fact bring it down the command structure. Gates is not passing on military strikes the way Panetta and Obama and the Congressional oversight committes have to pass on things.
But actually, this is not really that useful an argument. The military uses drones in a largely different function than the CIA has, at least up until recently. The military uses them, and sees them in a military sense, as simply another air support weapons system, and target review from a legal standpoint is not different from any other calculus of a similar weapons system. At this moment, as a matter of discretionary military strategy, the US military in Afghanistan has put in place an exceptionally restrictive ROE for the purpose of minimizing civilian harm that goes beyond what the law itself would require – but that is a matter of discretionary counterinsurgency strategy, not a requirement of law. Review of strikes is by the military itself, in theatre. The CIA, up until recently at least, has had a different strategic role and mission – taking out high value targets far from battlefield action, on the basis of various intelligence sources. The use of force is far more focused, and the decisions – however much in fact driven by Pakistan military and intelligence sources (which would be the same even if the US military were doing it) – made at a far higher level, with the special national level oversight and accountability demanded of the CIA but not the military.
One is not better than the other, insofar as they correspond to distinct missions. In any case, the presumption that the CIA is less, rather than more, rigorous in its legal review of targeting seems to me as likely an automatic prejudice against the CIA as anything else. It might be true, but it should not be assumed; the political oversight mechanisms are in fact stronger. The ACLU will presumably respond, via its FOIA lawsuit for information on all this, that we can’t know unless the Obama administration reveals all this information. But that’s why we have Congressional oversight committees – to make determinations about that consistent with national security interests, not those of the ACLU, whose FOIA request is remarkable chiefly for the amount of operational detail that is directly or impliedly asked for. It would take AQ months or years to get through the stuff for which the ACLU FOIA request serves as a stalking horse. That, plus a strategic sense that those who object to drone warfare on fundamentalist legal grounds would rather peel off the CIA from this first, rather than saying anything bad about Our Men and Women in Uniform. Far fewer will vigorously object to dark mutterings about the CIA.
This is complicated today by the fact that, as Adam Entous reported in a fine piece in Reuters last week, the conflict in Pakistan and the use of drones therein seems to be shifting, away from a focus on strategic high value attacks on leadership to something that looks much more conventional, the use of drones as just another air platform for attacking relatively low level fighters as they are grouping. And doing so against the Pakistan Taliban, in some sense as an air support arm in a new, or expanding conflict, of the US and Pakistan against the Pakistan Taliban. If that’s the case, I have argued many places that there is an important US policy discussion to have, as to whether, once things reach a level of overt, conventional war, the US military should take over from the CIA. I do not believe the CIA would have a turf difficulty with that – I could be wrong – but I have the strong impression that the CIA believes that its longterm comparative advantage in the use of force is … discrete, intelligence driven, high value, deniable, covert uses of force - an in a legal sense, the “pure” self-defense, not in an armed conflict, part of “use of force.” Not a parallel conventional war, Vietnam-style. The fundamental block on making this shift is the Pakistan government, which appears to have powerful domestic reasons to want to be able say, even as pure fig leaf, the US military is not fighting in Pakistan.
But these are policy debates, not legal ones. Philip Alston cannot really be satisfied with them as the drivers. Indeed, it is hard to believe that he really thinks that it can ultimately be anything other than the “binary”; everything else is just a strategic push back to reach that point. However, there is one additional legal twist that affects this. The position that I have associated with the special rapporteur, with Nils Melzer and his formidable (if, in my view, mistaken) treatise on targeted killing, the ICRC, the ACLU, and the general campaign against the drones has at least two fundamental and independent premises. One is the binary above. The other is the proposition that armed conflict is geographically limited. (I am leaving aside, by the way, a hugely important part of this discussion, almost entirely ignored, about the difference in the argument between international and non-international armed conflict. But that for another day.)
If you accept the first premise, but not the second, then you broadly speaking fall into the camp occupied by a number of military lawyers – David Glazier, for example, if I understood his testimony at the last Congressional hearing well, or Michael Lewis, if I correctly understood his written submission to the hearing. That is, they do believe that such uses of force must constitute armed conflict, but they do not accept the idea that it is geographically limited in some inherent sense. It is, rather, that the conflict goes where the participants go, which might be anywhere. Anything else has no basis in state practice, to start with, for the good reason that it contravenes the most basic notions of military necessity – the enemy can decamp to someplace that is not “part of” the zone of armed conflict and cannot be attacked. That is a non-starter, as a legal and military matter. They thus have questions not as to whether drones can be used as part of an attack in an armed conflict, without warning or attempt to arrest, anywhere a lawful target might be – but they do have questions as to whether, and on what terms, the CIA can participate. At that point, however, they rejoin the “narrow” debate above as to whether the CIA can be treated as part of the armed forces of a state, questions of uniforms, and many other things. They have views, but also suggest that these things are matters quite subject to technical legal debate. But self-defense apart from armed conflict does not figure as part of this view.
If, on the other hand, you accept both premises, then you are where the special rapporteur is, if I understand his position well up to this point. The use of force has to be part of armed conflict, the participants have to be lawful (with a still further assertion that the CIA will, so to speak, lose that argument and turn out to be unlawful), and the scope of attacks is limited in some geographic sense to a theater of conflict. Attacks within the zone of conflict – say “AfPak,” although many of the holders of this position think even that is geographically too broad – are lawful, but attacks outside of it, in say Yemen or Somalia, are not, even if the person being targeted is without question a lawful target save for that. That, at the end of the day, seems to me a fair statement of the special rapporteur’s position on the basis of all earlier statements; maybe it’s not, but in any case we’ll have to see next week whether it has shifted since. In that case, however, pressure to remove the CIA on any other ground seems to me simply a strategic move in a larger game that is a bit bit-and-switch in appealing to the ‘narrower’ position.
In which case, however, the US should recognize, at the highest levels of agencies and departments’ general counsels, that the US has (re-)staked out a fundamentally different position, one that denies the binary, and thus denies that all uses of force are necessarily either law enforcement or armed conflict. The US has already said that is not its position. For that part of the war against AQ that is an armed conflict in a technical legal sense, there is an important legal discussion as to whether and on what bases the CIA directly participates in hostilities and the implications of that – it is not that they are unlawful combatants, it is that they would be lawful targets – but only if their foe were a lawful belligerent and not a terrorist group without lawful grounds to use force against anyone.
In that technical legal argument over the CIA as combatants or directly participating in hostilities, and if one takes the US’s independent self-defense view, then curiously, the CIA is on firmest legal ground in precisely the situation in which the special rapporteur would say that its legal ground is the shakiest.
That is, if the CIA operates drone strikes against a target in Somalia, for example, it might apply the self-defense rationale and say that it is not an armed conflict, and is instead an act of self-defense simpliciter. In that case, the questions of lawful combatancy do not actually arise. On this view, however, it has a further technical case of legality as a direct participant in hostilities – curiously – if it engages in drone strikes within the context of something that is an acknowledged armed conflict, e.g., the border areas of Pakistan, precisely because it is an armed conflict and the technical rules of combatancy apply. Conversely, if you take the position of the binary plus a geographical limitation on “armed conflict,” then the CIA has legal difficulties in both situations, Somalia and the Pakistan border, but they are probably greater in the Somalia case.
(Cross-posted from Opinio Juris.)
PeteP says:
Next thing you know, the UN will be joining Mexico in trying to tell us what our immigration policies should be.
Oh, wait a minute … nevermind.
May 28, 2010, 6:48 pmKirk Lazarus says:
You seem to be ignoring the Taliban.
May 28, 2010, 7:00 pmbailey says:
All with the goal, of course, of actually helping in the War on Terror. Why, if this is “asymetrical” war, do we have to play by so called rules mandating that the fighting must be done by our armed forces and the other side does not. Seems kind of stupid and not conducive to winning.
May 28, 2010, 7:22 pmJoe Hooker says:
The solution is pretty simple, altho I doubt anyone will think of it. Just make sure that all drone operators are members of some branch of military reserve. Have them wear their uniforms while conducting strikes and count it as an unpaid drill. Presto, they are members of the uniformed military. Most of them are probably in the reserves (including the retired reserve) anyway.
May 28, 2010, 7:24 pmttc says:
I’ve never been a fan of magic word rules like this. Does it really make that much of a difference if the member of the executive branch that pulls the trigger is from the CIA or the Military? It all derives from the same authority, right?
May 28, 2010, 7:30 pmMikhail Koulikv says:
at the same time, though, think to ten or fifty or a hundred years from now. The way this will be painted in the rest of the world will be ‘that country won by cheating’.
…which the rest of the world could then juxtapose against our own angst about cheating/’gaining an unfair advantage’ in things like…oh, most sports…
May 28, 2010, 7:33 pmOwen H. says:
What I am wondering is, where were all these questions 2001 to 2009?
May 28, 2010, 7:35 pmBob from Ohio says:
I’m sure we will get right on it because some bureaucrat with a stupid title (“rapporteur”–is that French for “rap singer”?) issues a non-binding, personal opinion.
We’ll continue to use drones as we see fit by whomever we want to pull the trigger. “Angels on the head of a pin” distinctions like whether an intelligence agent or an air force officer operates the drone will not mater a lick. Whether the president is liberal or conservative, GOP or Dem, it won’t make any impact whatsoever.
May 28, 2010, 7:50 pmJohnF says:
The war is being conducted by our country. As in any war, we use whatever resources we have to do the job. When civilians in WWII kept a lookout for German boats off the East Coast, should the military have disregarded their reports because civilians were engaging in warfare?
May 28, 2010, 8:22 pmArthur Kirkland says:
And the people we are trying to kill will, naturally, attempt to use the means at their disposal to retaliate.
The difference is that most Americans will wonder and whine more when a drone operator’s home is firebombed in Nevada, or the battered body of one of our agents is hung from an Iraqi bridge, or the Pakistani populace cheers an ambush that kills Americans.
The self-defense argument with respect to most of our current entanglement was weak to begin with. Most of it has become parody.
May 28, 2010, 8:40 pmKieth says:
The problem with drones is not who launches them but how they are targeted. During World War II the V-2 “artillery” was regarded in Britain and the United States as a fiendishly indiscriminate weapon and rightly so. The difference between the V-2 and (for example) Boeing’s drone is the control mechanism and the information that allows a very precise (we hope) target identification. If the CIA acquires the information and establishes the coordinates and timing and then transferred that information to army personnel that would apparently satisfy Mr. Alston. That makes it sound like legal hair-splitting but, unless the targeting is incredibly accurate, the program is repugnant and, in my opinion, indefensible.
May 28, 2010, 8:49 pmSteve says:
The difference is that most Americans will wonder and whine more when a drone operator’s home is firebombed in Nevada, or the battered body of one of our agents is hung from an Iraqi bridge, or the Pakistani populace cheers an ambush that kills Americans.
Well hey, not me. I mean, I deplore the loss of any American life, but going after legitimate targets would be a step up for these guys.
May 28, 2010, 9:53 pmElliot says:
Another example of law and regulation becoming detriments to the society they were intended to benefit. Let them have their seminars; that’s where they belong. But ignore them.
Is it OK for the military to have manufacturers representatives of the firms that build the drones and weapons systems deployed with the drones?
May 28, 2010, 10:07 pmMark Field says:
I don’t buy this. Yes, criminals lose their right to self-defense while in the course of committing a crime, fleeing the scene, etc. (pace Hobbes, who might argue that no one ever loses that right). But the targets here aren’t necessarily engaged in criminal actions at the time. They may very well be engaged in the quotidian activities of life.
You can argue that criminals have the obligation to surrender when called upon to do so, and so they do. But there’s no such call here.
You can also argue that combatants — and I’ll assume for the sake of argument that every target is a combatant, despite plentiful evidence that mistakes in identification are common — are legitimate targets. That they are, but any claim that they don’t have the right to shoot back is absurd. We might as well have made such an argument about German soldiers in WWII or Confederate soldiers in the Civil War. Nobody would take such a claim seriously. If you’re going to complain about the “legalization” of warfare, you shouldn’t be taking such an impractical and purely theoretical position.
May 28, 2010, 10:34 pmHoward Gilbert says:
When US forces landed in Normandy, special operations armed as many as 20,000 French resistance forces in Brittany alone to attack German forces and disrupt supplies. These resistance members were unprivileged belligerents, or “unlawful combatants” in more recent language. However, “unlawful” in this context does not mean that they were criminals let alone war criminals. If captured by the Germans they could be executed. After the war, however, they were patriots and nobody has ever suggested that they could be arrested and tried for their “unlawful” actions against German soldiers.
In 1943 a party of British civilians, former members of the Calcutta Light Horse and Calcutta Scottish regiments, attacked German civilian ships protected in the harbor of Goa. Nominally this was a violation of Portuguese neutrality, but these German ships had been spotting allied ships and radioing their position to waiting U-Boats. The attack had been arranged by the British SOE (Special Operations Executive) and was know as Operation Boarding Party. It was so successful that everyone escaped and they kept it secret until 1978. Then there was a book and a movie about it.
Had it been known earlier, Portugal could have demanded the extradition of these “criminals” for their crimes in Portuguese sovereign territory. So if you are going to execute clandestine operations, you better damn well keep them secret.
Although the current Pakistani government is complicit in the CIA operations, some future Pakistani government might decide in retrospect to declare these killings to be murder and then, if they could get their hands on CIA or US government participants, they might decide to try them for their “crimes”. Not much can be done about this except to keep the identities hidden. Only Pakistan has jurisdiction to make the claim. Unlike a real “war crime” where there may be some international jurisdiction, killing by unprivileged belligerents during a civil war is an entirely domestic matter and Spain or other busybodies don’t have jurisdiction.
It would appear that Alston is mostly unhappy with covert military operations. He is one of the loud crowd that believes that they are entitled to know everything and to pass judgment on what everyone else is doing. He believes that military operations are more public and disclose more information than CIA covert ops, and he can use to make up his own superior mind to second guess US operations.
Of course, people like him never bother to mention that they have absolutely no knowledge about what the Taliban, al Qaeda, Hamas, Hezbollah, or Iran are doing. They criticize the US because if they made the same statement about any of those other countries they would be told to pound sand. In the West there are a number of other like minded people who will congratulate him on his enlightened position as they stand around safely sipping Chablis and eating hors devours while men and women a thousand times better than they fight and die in the war effort they would like to hamstring.
Meanwhile, ever since a ragged line of farmers drew up on the town square in Lexington and Concord or fought the British off at Bunker Hill, the US has a history of civilians taking up arms and fighting off enemies. Most recently, there were a bunch of civilian unprivileged belligerents on Flight 93. The enemy, after all, brought the fight home to American, and if Americans rise up on US soil and strike back against that same enemy wherever they try to hide, that makes sense to me. Americans are famous for “the shot heard round the world”, and if some Americans can pull the trigger in Virgina and as a direct result some al Qaeda or Taliban leader gets blown up by that shot in Pakistan, that just gives a new meaning to an American tradition.
If Alston has a problem with this, I suggest a deal. The next time some collection of pond scum wants to kill a bunch of Americans, they can arrange to take on a plane load of Marines instead of women and children. If that is they way the start the war, then we will be happy to continue fighting with just soldiers. Otherwise, they are fair game for any American that can put them in the crosshairs. If someone doesn’t like it, tell them to go pound sand.
May 28, 2010, 11:45 pmLJM says:
I thought that this was some kind of “limited government” website, but lo and behold, most all of the posters here seem to have a leftist’s faith in the government when it comes to the military. You seem to trust that the targets we use these remote controlled flying guns on are the right ones (when they frequently aren’t) and that they actually are helping us to win some war (when they certainly aren’t). As if the military and the CIA weren’t as corrupt and inept as every other government institution, and therefore deserving constant distrust and scrutiny. But, hey, it’s not innocent American men, women, and children we’re often accidentally blowing to pieces and burning alive, so maybe that’s why ya’ll have no problem in giving the state the benefit of the doubt, which it has never, ever earned.
May 29, 2010, 4:32 amlawman says:
Here is the problem with all of this word splicing.
First of all, in 2010, any time you have to resort to Latin to make your argument, you have already lost (and I took years of Latin).
More seriously, the real issue is a PR issue.
What is the take-home message that 99% of the world population (hostile or allied) can understand?
The U.S. uses un-uniformed, non-military personnel to kill other un-uniformed individuals while claiming that the other side is illegitimate partly because they are out of uniform.
Boom. The end. We lose.
Most of the world HATES the CIA.
It is an indisputable fact that CIA has been responsible for supporting/funding/arming homicidal maniacs in dozens of countries over the last ~60 years. The populations of those countries hate the CIA.
Using the CIA makes us lose the PR war, which is really the only way to WIN the war on terror in the long run.
So, my fellow lawyers, go ahead and parse language.
It won’t win the war.
(From a practical perspective, I am sure that there are very quiet ways to utilize CIA information but ensure that it is the military running the drone show).
May 29, 2010, 5:08 amAnderson says:
Lawman in 2012!
… The only rule that I can glean from Prof. Anderson’s posts on this subject is that there ain’t no rules. At least where the United States is concerned.
John Yoo came to similar conclusions and dressed it up as “law,” but law = rules. When you reach a legal opinion that there are no rules, you’ve committed the legal equivalent of dividing by zero. Somewhere in your argument there’s a glitch. Or if you will, it’s like “infinity” results in physics equations. Renormalization, please.
May 29, 2010, 8:58 amJoe says:
Lawman underlines that studying law and Latin is particularly useful when you understand when to use them.
The NYT article has this tidbit:
“With the Defense Department you’ve got maybe not perfect but quite abundant accountability as demonstrated by what happens when a bombing goes wrong in Afghanistan,” he said in an interview. “The whole process that follows is very open. Whereas if the C.I.A. is doing it, by definition they are not going to answer questions, not provide any information, and not do any follow-up that we know about.”
A CIA spokeswoman insists all the same that the CIA is provided oversight by Congress and the President. Color me somewhat underwhelmed. Overall, when dealing with bombing people, I think that should generally be left to the military anyway not some agency whose very name refers to its mission of “intelligence.”
We are told the CIA have a different purpose in using drones. Oh? You mean investigatory? Not quite. “taking out high value targets far from battlefield action” As if the military hasn’t repeatedly bombed people and locales far from the battlefield action. If “self defense” — carried forth not even by military or police forces — will now mean some general right to bomb, it’s time to jump off the bus.
May 29, 2010, 11:14 amAnderson says:
Just to be clear: I think that a drone strike to take out bin Laden, assuming he’s in an inaccessible location where we have no plausible chance to capture him (or where such an attempt would risk prohibitive loss of our troops), is hunky-dory under the “self-defense” theory. I’m more interested in nailing him for 9/11, not prevention of new attacks, but they are certainly a reasonable possibility.
But “self-defense,” as Joe and others note, cannot cover blowing up anyone with a gun whom we suspect is aiding a group who’s aiding a group who’s aiding al-Qaeda.
May 29, 2010, 1:53 pmStephen Lathrop says:
Seems like one problem here is that we are talking about a system for attacking people pursuant to some undisclosed process for associating them with attacks on us, or on our allies, or on their neighbors, or something. We go on to add that those attacked have no right to self-defense by shooting back, and certainly not by shooting back at us at a time and place of their own choosing.
That sounds like it will create more trouble than it can prevent.
May 29, 2010, 2:00 pmCecil Turner says:
I’m curious. When our spy agency is conducting wartime espionage overseas, are our spies “lawful participants”? Or are they the very epitome of “unlawful combatants”?
May 29, 2010, 4:58 pmAnderson says:
Cecil, I don’t think that wartime espionage is “combat” per se, although there’s never been any very serious doubt about what happens to captured spies in wartime. If they’re lucky, they’re invited to become double agents.
May 29, 2010, 5:57 pmBob Hawkins says:
Anyone who makes the “no uniform” legal argument is not serious. The definition of “uniform” in this context is extremely flexible. A piece of cloth of a certain color tied around the arm suffices. I guarantee you that the CIA drone operators wear a CIA ID badge when operating drones in secure CIA facilities. If you actually accept the international law of war, end of story.
It is a useful way to spot unserious people, though.
May 29, 2010, 5:59 pmTom Billings says:
This argument is also used against air strikes. It was used, by armies led by aristocrats against longbows, rifled muskets, and even by a King of Sparta, who, when shown the huge dart from then new catapult weapons exclaimed “woe to the virtuous, …all valor is now vanquished, and cowards shall rule better men”. Yet these were quickly adopted by all who could do so, in any fight where they were useful. And first they were adopted by people who see war as a brutal bloody task, that, however vile, must still be accomplished successfully, and not “sporting” at all. Those are the people who actually win most wars.
Within 10 years technologies employed in conflicts will be so far beyond airborne drones, that they will excite no comment at all.
May 29, 2010, 6:06 pmnicehonesty says:
Another story about Obama war crimes triggers another round of apologia and obfuscation from Anderson, Mark Field, et al.
Completely predictable.
May 29, 2010, 7:02 pmCecil Turner says:
Cecil, I don’t think that wartime espionage is “combat” per se . . .
Regardless, I think spies are generally agreed to be unlawful combatants. From Quirin:
I’m not a lawyer (just a dumb retired jarhead), but I can’t see why Alston’s legal argument wouldn’t apply equally well to CIA spying operations. In essence: “your spies violate the laws of war.” Response: of course they do. So what?
May 29, 2010, 7:11 pmHoward Gilbert says:
The military spy who as an agent of a military commander dresses in civilian clothes and pretends to be a civilian to pass through enemy lines of defense is an “unlawful combatant” (or “unlawful belligerent” in the terms used before 1949). His act of passing through lines in regarded itself as equivalent to combat even when he does not carry a weapon. All this is in ex parte Quirin.
The quintessential American unlawful belligerent is Captain Nathan Hale. He was an officer in the Continental Army who volunteered for a special operation. He dressed in civilian clothes, pretended to be a unemployed school teacher, and he got behind British lines by booking passage on a civilian commercial ferryboat carrying passengers across Long Island Sound from rebel held Connecticut to British held Long Island. He was arrested, held by the British military, given a military trial, and executed.
A statue to Nathan Hale stands outside the CIA headquarters in Langley. You will also find statues of him in many Connecticut towns, and many Connecticut grade schools are named after him. For 235 years everyone has admitted that he was an unlawful enemy belligerent and the British had every right to hang him. That did not make him a criminal, let alone a war criminal. He is a hero. We do not name grade schools after convicted war criminals.
So if you think that the CIA is worried about being called unlawful enemy combatants by some UN clown, you should pay a little more attention the next time you walk by a statue in the middle of a Connecticut town square. There are far worse choices to take as your role model.
May 29, 2010, 8:23 pmBob says:
First I’ve got to say it’s awesome to have guided missiles that target individuals, just like in the cartoons. You know, the ones where the missile goes around corners, rings for the elevator and takes it to the proper floor, and goes right into the victim’s gaping mouth, and he tries to vomit it but it blows up first.
Second, I need to ask, if any of this is a legal problem, why not just do it illegally? Seems to me when you’re shooting at people, you shouldn’t be concerned with legalities; if you are, then you don’t really mean it, and should examine whether that’s the right sort of job for you. If you want somebody dead, you should want it bad enough that you don’t care what the lawyers say about your action. If the lawyers know that, they’ll know it makes no sense even to argue about it, as their arguments won’t have consequences, so people will probably stop paying them for their service.
May 29, 2010, 9:24 pmbailey says:
And, once we get done with this predator drone stuff and hopefully eliminate a program that has been successful in killing bad guys, perhaps we can erect a wall between intelligence gathering and domestic law enforcement, just so there is no accidental mix-up.
May 30, 2010, 9:54 amMark Field says:
Predictably enough, today’s paper brings additional evidence that drone strikes are a bit less than “targeted” and that “self-defense” gets defined pretty generously in practice.
May 30, 2010, 10:40 amLibrary: A Round-up of Reading « Res Communis says:
[...] Drone Warfare, the CIA, and Charlie Savage’s NYT Article – The Volokh Conspiracy [...]
June 1, 2010, 3:45 pm