U.S. District Judge John Bates said in a written opinion Tuesday that al-Awlaki’s father does not have the authority to sue on his son’s behalf. But he says the case raises serious issues about whether the United States can plan to kill one of its own citizens.

Quick update:  On a fast read of the opinion – well, anyone interested in these questions needs to read it post haste.  Far from merely being a narrow discussion of standing, it goes on to discuss the political question doctrine in great detail, and concluding on this point:

…this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case, see El- Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211), and the doctrine does not contain any “carve-out” for cases involving the constitutional rights of U.S. citizens. While it may be true that “the political question doctrine wanes” where the constitutional rights of U.S. citizens are at stake, Abu Ali, 350 F. Supp. at 64, it does not become inapposite. [p. 77 opinion, emphasis added]

But opinion contains much, much more.  A very interesting discussion of why the Alien Tort Statute does not offer an avenue; state secrets doctrine; there is a lot of stuff here.  More when I’ve read it more closely.  It is an impressive work in judicial opinion-crafting by Judge Bates, regardless of what one thinks of the outcome.

Update:  Larkin Reynolds at Lawfare offers a bunch of snippets from the opinion.  Also at Lawfare, Bobby Chesney offers an objective outline, sans commentary, of the quite long opinion, and Jack Goldsmith and Ben Wittes weigh in with commentary.

I was puzzled, frankly, at the coverage in both the Post and the Times this morning. Charlie Savage, for example, seemed to think that the language I quoted above was what Judge Bates rejected, if I understood his writeup correctly. Rather, this is what Judge Bates found, albeit in a collateral and perhaps purely dicta way, given that he did not need to reach this once he had dismissed on standing grounds. The best one might say for plaintiffs here is that Judge Bates confined himself to narrow facts, even while concluding that the executive’s decision was unreviewable.

Basically, I agree with Ben’s five points at Lawfare, and agree with him that the ruling is likely bullet-proof on appeal. The one point I’d add to Ben’s discussion is that it seems to me that Judge Bates’ motivation was to provide at least the beginning of clear institutional settlement on a crucial aspect of the executive’s national security prerogatives, even if it was arguably “mere” dicta.

I’d also note in passing that this holding illustrates in a backhanded way one of the aspects of the Alien Tort Statute that I find troubling, at least as applied to conduct outside the territorial United States. Viz., it confers special rights upon aliens that are not available to US citizens – including, in this case, a citizen named Al-Aulaqi. His alien father can at least begin to bring a claim that the citizen son cannot, because he is, well, not an alien. This makes sense to me in one context only, viz., when the conduct occurs in the territorial United States, and the alien present in the US might suffer at the hands of state courts or US citizens, who themselves have ample avenues open to them; it levels the playing field. Abroad, arguably, it gives aliens something that US citizens don’t have.

I do have a paper at this conference – on drones, but not really on the law of targeted killing and drone warfare.  (Yale’s Paul Kahn is kind enough to serve as commentator on Wednesday.)  Tentatively titled, “Every death a targeted killing,” it aims to ask, speculatively, what effects a fully realized technological and legal and moral regime of targeted killing using drones would look like.  What would be the features of such a condition for conflict?  It does not attempt to address this for all conflicts – but suggests that, in the special case of counterterrorism, it enables the growth of an “intelligence-driven” form of conflict that individuates every killing, rather than targeting an undifferentiated mass of combatants.  If one takes that from a moral standpoint, targeted killing has the same proportionality rules as any other weapon, then it pays exactly the same heed to non-combatants; by contrast, it pays far more attention to the status and role of combatants.  The paper is in early draft form, in any case, so will get revised before I even post a working draft to SSRN.

Ben has also added a second post with some transcription, specifically on the question of whether, if one takes Mary Ellen’s statements at what they say, Barack Obama is not therefore a “serial killer” for having directly ordered the CIA to carry out what Mary Ellen characterizes as “crimes” and Harold Koh at the least an aider and abetter. Ben has in mind, for example, statements in Mary Ellen’s widely noticed article, “Unlawful Killing with Combat Drones,” which among other things declares that “members of the CIA are not lawful combatants and their participation in killing—even in an armed conflict—is a crime.”

One might argue Ben’s choice of provocative words in the debate – serial killing – or one might argue various technical points over whether it is murder or not murder, whether or not there can be the proper intent given the presumed opinions of many lawyers advising inside the government (many of those questions came up, of course, in the detention-interrogation-rendition arguments as well). His fundamental point is to say, as far as I understand it (and if I do, I agree), if you declare that CIA participation is a crime, then it follows that somewhere there is a perpetrator. Not to go after him or her is to permit impunity; it is not a matter of saying, well, you are committing crimes, but all we want to do is persuade you to change your policies going forward to bring you into compliance with international law. Crime is a charge of more than mere non-compliance. If there is a crime, someone must be responsible for doing it, whether you call it murder, criminal extrajudicial execution, what have you.

And whether one calls these crimes serial killing, murder, extrajudicial execution, etc., they are still a large number of killings. It’s not the kind of crime that just happens to be a tort or civil infraction criminalized, but for which as a regulatory matter one can simply agree not to do it any more, like various of the lesser environmental “crimes” for which corporations routinely pay criminal fines in the domestic United States. Killing is not like that, presumably, at least not when it’s systematic, systemic, large-scale, and under direct orders.

The article by Mary Ellen specifically says who commits a crime – members of the CIA. Yet they are not acting as rogues in this, but rather under direct orders of the President. If it is correct to call the acts a crime, then it is correct to identify the criminals, and those criminals will have to include those who ordered them to do the crimes. So what is it to be? I think it a salutary reminder that one ought to be careful in cranking up the machinery of international criminal law over contested interpretations of international law. One risks either over-invoking it or trivializing it or both. I take it that was Ben’s larger point in seeking to force the question onto the table by insisting on using an ordinary, non-legal term like serial killing.

I have another concern beyond this, however. It goes to one of the responses in the debate from Mary Ellen when Ben insisted in pressing the point. It is that it would be politically unrealistic to consider going after Barack Obama or Harold Koh, so there is no point to raising the issue of criminality and, I took by implication, Ben was engaging in a strawman argument to do so. But why should it be seen that way? Ben did not assert the question of criminality in the first place, and then suddenly or unreasonably put it on the table, after all; it is not a proposition tossed up by Ben. “Crimes” as an issue were raised in the first place by Mary Ellen against CIA officers. Ben has pointed out that they are acting under perhaps the clearest, deliberately and (admirably, in my view) least deniable set of orders from the President of the United States in a long time on contentious national security matters. If there is a crime, there must somewhere be a criminal or else it is merely a series of unfortunate events; if there is a criminal, he or she did not act alone, because these agents acted under instructions from a principal.

So this is my concern: If it is politically unrealistic to consider going after Barack Obama and Harold Koh and Leon Panetta and Joe Biden, et al., and that is the reason (or a big part of it) for not pursuing criminal sanctions that follow upon criminality, well, one has to wonder when it will be politically realistic.  It seems hard not to think that for many who agree with the criminality view, that moment comes when there is no longer a Barack Obama at the helm, no longer beloved Harold Koh at DOS, and instead President Palin has concluded on the basis of the acts and written opinions of the previous administration that Al Qaeda has shifted, under relentless pressure by the Biden Brigades of UAVS and JSOC and CIA teams on the ground, to new grounds in lightly governed territory or an openly hostile state. Candidate Obama said in March 2008 that he would follow AQ to Yemen or Somalia or anywhere else they sought haven; he repeated it many times in office, and as we all found out, boy-oh-boy did he ever mean it.

But now that President Palin and Vice-President Jindal are at the helm, all of a sudden many people find the situation somehow … different. It all seems so … criminal. The alleged criminals all seem so … prosecutable or indictable, somewhere, somehow. Despite angry assertions that the policies are identical, a wave of law scholars produce an endless number of scholarly tomes and declarations, promptly submitted by the ACLU and CCR to courts everywhere they can find as earnest amicus briefs, that it really is different. It is very hard for me to see, as a pure political matter in the demimonde of the activist-scholar, international law advocacy community, that “politically realistic” is not simply another way of saying, “Republican administration.”

I am not attributing this to Ben, or to Mary Ellen. I have expressed the concern many times over the last year, in Congressional testimony, in my long Weekly Standard piece, Predators over Pakistan. I note that Harold Koh’s ASIL speech was admirable, in my view, not least because it moved to foreclose an important part of this. How? Because it acknowledged the long-held US position on self-defense as an independent ground for the use of force. Koh perhaps did not need to do that in this speech if the sole purpose was to provide a plausible ground for targeting people with drones in Yemen or Somalia. The speech could plausibly have rested on the narrower grounds of a non-international armed conflict in which the participants had fled to a new place and the ensuing hostilities followed their persons.

This is, after all, the administration’s preferred view of the situation of AQAP and Al Aulaqi, if I read its statements correctly. It believes that it has available to it, plausibly and in good faith, two alternative legal rationales for targeting them and targeting them there. They are, first, non-international armed conflict has followed the participants to Yemen or that AQAP is sufficiently co-belligerent with AQ proper; or else, second, that it is an independent exercise of self-defense under international law. I agree that each is available, plausibly and in good faith; I have strenuously argued the case for self-defense as the correct, but not exclusive, rationale in the past. But as more information has become publicly available on the factual nature of AQAP and its relationship to AQ, I believe that the armed conflict rationale has grown stronger as a factual characterization, and I think that true of Somalia as well.

The Obama administration has reasons given its preferred domestic law lens of the AUMF for relying on the first. There is nothing wicked or bad faith about that; the international law views are plausible and offered in good faith, and if it sees one as meshing better with its domestic law views, that is fine, too. But notice how different this approach to “international law” – regardless of whether one agrees with the specific legal judgments being made, the general approach is the traditional one of the State Department over the long run: the proper basis for showing that there is law and its interpretation is mingled without apology or consternation or sense of bad faith with diplomacy, politics, the facts of how states of varying weight and power and influence in the world see things, and a general sense of pragmatism that informs, or anyway ought to inform, the nature of international law itself.

It means, among other things, however, that the appropriate language for discussing the “law” is “plausibility” of alternative interpretations, rather than anything quite so stark as the categoricals and categorical imperatives that some, wishing they lived in a federal world with a supreme counstitutional authority to interpret these matters, might prefer. The view of international law held by the United States government over the long run is respectful of international law – but an international law that has built into it – built into the conception of what the law is and what qualifies as its interpretation – pragmatic views of alternative plausibilities that take account of the real world. So far as I can tell, the State Department thinks that the assertion of that pragmatic nature, far from being an embarrassing real world act of necessary bad faith, actually saves international law from itself, because of its tendency otherwise to drive itself over a cliff of idealism in which it achieves theoretical perfection while depriving itself of meaningful connection to how the leading sovereignties actually behave. International law (I’m swiping this phrase from someone, not sure who) has as its preferred political tense the future perfect.

Harold Koh did not strictly speaking need, strictly speaking, to reach to the international law of self-defense, in other words, in order to address a narrow question of US legal policy. He could have stuck with armed conflict and plausibly so. But he did so, presumably because he, and others in the Obama administration, understood that they have a fiduciary obligation to future administrations and future US presidents, to protect and preserve their powers lawfully to act, and that this includes self-defense as Legal Adviser Koh referenced it. He drew on the past jurisprudence of the Department of State, noting that it, too, is a source of law and its lawful interpretation, and looked to its future, in pragmatic ways broader than the narrow question that faced him. Self defense, too, is a plausible framework of law in this situation, particularly in consideration of the practices of states when it comes to self-defense outside of armed conflict strictly defined, and long and wide state practice regarding safe havens for non-state actors. In some future situations it will be the preferred and perhaps only available legal view.

But these arguments over plausibility and interpretation do not lend themselves to invocations of criminality and crimes, whether their prosecution is politically realistic or not. That kind of language raises the stakes in ways that are really beyond the proper bounds of this discussion. That is what I took to be Ben’s larger point. To that, I add that this will be tested when next there is a Republican administration, and suddenly what was politically infeasible looks (at least for purposes of strategically de-legitimizing otherwise accepted lawful actions of the President) feasible once again. When Harold Koh is replaced by a John Bellinger of the future; when the actors lack the long and deeply protective connections that proper membership in the academy brings; and when there is a general sense among progressive elites that the NASCAR yahoos are (back) in power and that this is the moment for de-legitimating what could not be de-legitimated when it was one of our own – well, what looks infeasible now will then look, I think, remarkably feasible.

Which is a leading reason, in my view, why a perhaps newly Republican Congress ought to set about getting directly on the table the detailed reasons why leading legal minds of the current administration think that their policies are lawful. And passing laws specifically to say that they are lawful, in Congress’s view, as a kind of memo from the political branches to US courts in considering future cases that will arise. Before officials leave government (Note: abjuration to incoming Congress – ed.). The national security apparatus that Vice-President Biden would like to leave behind after eight years in office is one, after all, that is wedded, fused, bonded, and genetically interwoven with targeted killing through remote drones and special ops teams and intelligence-driven uses of force. It is being tested in AfPak, for better or worse, in what a professor of mine in a class on strategy at UCLA once remarked as being the most difficult matter to execute: strategic (or tactical, for that matter) withdrawal under fire. I frankly never took Joe Biden seriously before, and I probably still don’t buy important parts of it strategically, I suspect; still, the account in Bob Woodward’s book has forced me to do a serious re-think of the Vice-President, surprising as I find it to utter these words. The strategic track is being laid down now – but even if it is only a narrow part of US national security strategy, it will be a crucial tool.

It would be a good thing if the administration not only laid this down as a strategic direction in technology, doctrine, operations, etc., but followed up on Legal Adviser Koh’s admirably far-sighted, indeed generous decision to protect the legal bases of this country’s future national security apparatus, and left behind a clear record of the legal views is has adopted in its policies. Not the ACLU’s fishing expedition for a guide-to-targeting (where 99% or so of the value, in my view, would accrue to AQ’s intelligence services were the ACLU’s FOIA to be answered seriously, question by question), but a clear set of legal statements linking policy with the administration’s view of the law; neither the ACLU nor Special Rapporteur Alston is wrong to seek such a general statement in the abstract.

Footnote to Jessup moot court teams doing this year’s problem on targeted killings and drones: Bear in mind that the nature of Jessup competitions tends in some situations to over-emphasize written legal documents of formal interest, such as ICJ opinions, and under-emphasize actual state practice of states, because state practice requires careful, but also always contestable, historical inquiry. It is one reason I am unenamored of politically exciting Jessup problems on national security topics which, in the real world, cannot avoid historical state practice as a source of law but are difficult to integrate into legal processes that systematically favor formal documents. Jessup works well in legal problems that are by their nature driven by documentary evidence; less so in such things as targeted killing.

It is always worth keeping in mind Sir Adam Roberts famous abjuration to international lawyers – though, if followed, it will inevitably lead one in these politically controversial matters to be less categorical about one’s conclusions than lawyers typically like:

There is little tradition of disciplined and reasoned assessment of how the laws of war have operated in practice. Lawyers, academics, and diplomats have often been better at interpreting the precise legal meaning of existing accords, or at devising new law, than they have ben at assessing the performance of existing accords or at generalizing about the circumstances in which they can or cannot work. In short, the study of law needs to be integrated with the study of history: if not, it is inadequate. (Sir Adam Roberts, “Land Warfare: From Hague to Nuremberg,” in The Laws of War: Constraints on Warfare in the Western World (1994), at 117.)

So, I have been strongly identified with, and have been robustly urging, that one possible ground justifying the use of drone warfare and targeted killing, as well as setting rules for its conduct, is the international law of self defense.  I maintain, and certainly continue to maintain, that there are circumstances in which the use of targeted killing can and as a proper legal description should be understood to be the use of force as a lawful act of self defense even though it takes place outside of an armed conflict, and even though that use itself does not create an armed conflict.  It seems to me, before as now, crucial to be clear of the existence of this category of the use of force as a lawful possibility for the United States, particularly looking down the road to conditions and situations that do not implicate the current struggle with Al Qaeda, has nothing to do with 9/11, is not covered by the AUMF – a new terrorist group with different terrorist aims, for example, emerging in Latin America or somewhere in Asia twenty-five years from now, and having no connection to any of today’s issues.

I have suggested that this is an appropriate way of characterizing the legal status of attacks carried out by the US in Yemen or Somalia, or elsewhere that terrorists might go in seeking safe haven, or by new groups emerging that increasingly are not directly linked to AQ even if they take inspiration and aims from it.  I have queried at what point jihadist groups threatening the US become only “notionally Al Qaeda” and part of our existing legal framework of a non-international armed conflict only in theory, increasingly remote from the reality.  Territory or legal geography of conflict matters in that, not because the armed conflict is inherently bound to a territory or geography, but instead because the group at issue is only tenuously connected to the group initially defined as part of the armed conflict – partly under domestic law considerations and partly under international law considerations.  The non-international armed conflict goes where the participants go; and likewise if new groups engage in co-belligerent action, then they become part of the armed conflict.  But it has seemed to me in the past several years that some of these groups are in other places and not obviously connected, except by a forced abstraction, to the groups under the AUMF.

I still think that is a perfectly good way to see the use of force.  The new groups present a threat; they present a threat in a place where the armed conflict is not actually underway with respect to them; the US targets them as self-defense in the absence of an armed conflict.  Alternatively, however, if you think either that the people you are targeting are part of the armed conflict to start with because they are linked sufficiently to AQ and the authors of 9/11, or even more directly because they are AQ or affiliates fleeing Pakistan or Afghanistan in search of new safe havens, then the case for viewing this as simply the continuation of the existing non-international armed conflict is also highly plausible.

I view these rationales as permissive, rather than a forced choice between them, and think that each is a perfectly plausible and justifiable way of looking at current actions in Yemen or Somalia.  With regards to Pakistan, insofar as those being targeted are as part of the counterterrorism campaign, that seems to me unremarkably part of the on-going armed conflict, albeit one that has broadened out to include Pakistan Taliban and various terrorist groups in Pakistan that have allied themselves with AQ.  The point, however, is that the question of whether the proper framework for legal analysis is armed conflict or self-defense begins not from geography but instead from the identity of whom you fight; if it is a genuinely unrelated group and, even more plainly as a hypothetical, a genuinely unrelated issue – a new form of transnational Maoism in the Andes, say – then the question of legal geography comes into play to ask whether hostilities of sufficient intensity, etc., suffice to evidence a non-international armed conflict.

This is a change in emphasis for me, and in part a shift in view; in the past I have emphasized far more the geography as to where hostilities are underway, but I am persuaded that the correct analytic frame is to ask “who” and then whether, “where” the fighting takes place, the threshold of sufficient hostilities has been met.  But this is in the context of understanding that in places such as Yemen, it seems to me the facts can be plausibly understood to fit either view.  Indeed, an important shift in my view concerning Yemen in particular is that as we understand better the relationships between Al Qaeda in the Arabian Peninsula and other groups in Yemen and AQ proper, the facts increasingly suggest that both in the past and even more strongly today, the best – and not merely a decently plausible – characterization is to understand them as part of the non-international armed conflict.  It seems to me that there are good legal grounds to understand Somalia and Yemen as attacks as individual acts of self-defense, but as I read the Woodward book and what John Brennan in particular says about the movement of AQ operatives into those new safe havens, and talk with well-informed reporters, those factual descriptions are persuading me that the better of the two views is to see attacks there as part of the on-going non-international armed conflict.  That would include the targeting al Al Aulaqi.

I also understand that the Obama administration has reasons grounded in domestic law for preferring to see the best international legal frame as non-international armed conflict in Yemen or Somalia.  This arises from its view that for domestic law purposes, the terms of the conflict are set by the AUMF, and not the discretionary scope of the executive.  I think this is perfectly plausible as an international law rationale – either seems to me available to it – and in any case, my reading of the facts on the ground in those places suggest that the administration is not simply making a “notional” argument by any means for how it sees attacks in Yemen or Somalia.  The Obama administration is on sound grounds in saying that the non-international armed conflict goes where those who participate go, and extends to groups that co-participate with them.  But that is a shift in my read of the facts from two years ago, and it is also a shift in emphasis as to taking geography into account.

As one government lawyer put it to me, the administration’s view is that, yes, it does have independent grounds for self-defense, exactly as Harold Koh said, and in an appropriate circumstance will invoke it nakedly, without recourse to an armed conflict.  But it also holds the view that once parties initiated a non-international armed conflict, and met the thresholds of intensity and all that, the same non-international armed conflict goes where they go, irrespective of geography.  As he immediately added, with notable weariness, this does not mean Predators over Paris, whether France or Texas; Yemen is not France.  Territorial integrity is an important, vitally important principle of international law – but it can be overcome where a state either cannot or will not control its territory – which is to say, assert the lawful sovereignty over territory for which it has both a privilege but an obligation.  No safe havens has also been a bedrock qualification on territorial integrity of states, as a matter of self defense and consistent state practice.

I am (still) completing a new essay on the operational roles of drones, a roster of strategic uses, one that leaves aside the legal issues in favor of trying to get an analytic handle on the increasingly variegated uses of drones and targeted killing.  It seems to me important for legal analysis because the variations are sufficiently great at this stage that different uses suggest different legal frameworks – some are involved in armed conflict, for example, and some might not be.  But as the argument over the use of drones in Afghanistan, Pakistan, Yemen, and beyond intensifies, I thought it would be worth taking a moment both to clarify and advance my own baseline legal position.  Thus:

Although asserting the framework of self defense, and elaborating its constraints based in necessity, discrimination, and proportionality is crucial, because not all uses of force by the United States will always and forever be instances of armed conflict, it does seem to me plausible and – given the current understanding of facts on the ground in Yemen and Somalia – the best understanding of who is being targeted to regard those uses of force as part of the on-going non-international armed conflict.

Today at noon, the Whitney R. Harris World Law Institute at Washington University Law School is holding a debate on targeted killing using drone aircraft.  It features Notre Dame’s Mary Ellen O’Connell and yours truly, and moderated by Minnesota Public Radio’s Matt Sepic.  Mary Ellen and I each hold strong views on this topic, of course, and I am greatly looking forward to the discussion.   The event will be webcast, live, I believe, and then available archived at the website if anyone is interested.  My thanks to the folks at the Harris Institute, and Leila Sadat particularly, who invited us, and congratulations to the Institute on its 10th anniversary.  The Harris Institute could not have picked a more timely discussion for its anniversary debate, as a quick glance at the newspapers reveals.  The link to the Harris Institute event notice is here.

I’ve just finished the new Woodward book, Obama’s Wars, and it is intensely interesting on the topic of drones and targeted killing.  If anyone thinks that the President, the Vice-President, and the senior national security team are not convinced that it is effective and the most discriminating form of use of force available, they should read this book carefully.  Ramping it up is fundamental to the Obama administration’s war strategy, as I‘ve repeatedly said for the last couple of years, in part because it is embedded in counterinsurgency to take out the safe havens, and because it is the the thin tip of the spear in counterterrorism.

That, according to the first rate reporting from Adam Entous, Julian Barnes, Siobhan Gorman, and others at the Wall Street Journal’s first rate national security reporting team, is what is driving the ramping up now: look back at Woodward’s book on the strategy discussions from a year ago, and what the Journal reporters are noting on the front pages, and both sides of the ramp-up become clear.  Counterinsurgency in Afghanistan requires taking out the safe havens; counterterrorism against the terrorist groups in Pakistan is a function of drones.  More drone strikes either way, quite apart from their strengths in costs, precision, discrimination, etc.

One of the important takeaways from the Woodward book, however, is that the counterterrorism strategy depends far more than I had realized upon the CIA’s network of human intelligence on the ground, and not merely on Pakistan intelligence sources.  The drone targets are a function of every other conceivable intelligence resource from humans on the ground to signal intelligence.  Another is the repeated theme that Al Qaeda is much more involved with the “franchise” and “affiliated” terrorist groups seeking to expand ops beyond Mumbai and south Asia into Europe than I had believed – I had come round to seeing them as inspired by but not really coordinated through or with, but the Woodward book puts Al Qaeda as very much in the game.

Seen from the strategy decisions made a year ago, the moment has arrived in which the administration is brushing aside objections to leaning on Pakistan – blowback, nuclear arsenal, etc. – and deciding it is put up or shut up time.  This all has important implications for the overt, non-covert war – it is AfPak as a strategic matter, and quite possibly – for important strategic players – much, much more Pakistan than Afghanistan.  But the conflict is an AfPak one as far as important US strategic considerations run, and that means overt, direct Nato attacks across the border on safe havens, drone attacks, and no pretense that it is a deniable CIA operation.  We haven’t reached quite that point yet, but we might get there sooner rather than later.  The alternative is a ramping down of Afghanistan counterinsurgency, and a ramp up of CIA deniable operations in Pakistan, as counterterrorism.  This is the Biden preferred option, in the context of the various strategic reviews conducted by the administration, on the view that defeating the Afghan Taliban in any meaningful way is not possible, and so Al Qaeda and affiliated groups sheltered in Pakistan are the issue.  Which is to say, Pakistan is the real source of the poison.

That strategic debate can go many ways, but the one lesson out of it is that drones and targeted killing will get only more important, not less.

September 2010 saw another sharp uptick in the number of drone attack missions in Pakistan.  The question behind the raw numbers is what strategic purpose they aim at.  One strategic mission of drone missions in Pakistan is counterterrorism aimed at Al Qaeda leadership.  This uptick in September 2010 points to a quite distinct function – rather than counterterrorism as its own mission, the purpose is, as article says in a telling quote, “force protection” for the US counterinsurgency troops in Afghanistan.  The articles details an increasing impatience of the US military and political leadership with Pakistan’s government, and an increased willingness both to strike overtly using NATO military assets quite openly across the border, as happened in the last week, as well as to use CIA Predator attacks in the border regions.

Moreover, the “force protection” use of drones described in these articles is distinct from still another strategic use of drones, one recounted in earlier articles in the last two weeks, talking about their use to disrupt the planning of attacks against European targets by groups such as the Haqqanis, regional groups thought to be seeking to use people with European or American passports to strike from Pakistan against Western targets; Mumbai shifted further west, so to speak.  As Woodward quotes someone in his new book, “Mumbai changed everything.”  It is because of these overlapping but also separate and shifting roles for drones that it seems to me worthwhile to analytically distinguish them, as I do below.

Thus, the CIA attacks are now on safe havens for Taliban who are part of the fight in Afghanistan but taking refuge in Pakistan.  Rather than simply a raiding strategy against terrorist leadership in Pakistan as an exercise in counterterrorism, the drones are now used a raiding strategy against the safe havens as part of the Afghanistan counterinsurgency surge.  Hence the desire of the Pentagon to divert drone aircraft – which are in demand in Afghanistan for a variety of missions – from Afghanistan to attacks in Pakistan on bases that are seen as links for attacks on US forces.

This is an important shift, or addition, to the role of drones in Pakistan.  (Of course this has always been part of the use of drones; I’ve hardened the analytic categories to make them clearer, but really it is a question not of something new, but of scaling it up.)  The article makes note of something else, too – that drone aircraft are not being produced fast enough to meet demand for them in AfPak.  The article has excellent graphics, including a chart on numbers of attacks on a month by month basis, and maps.

As it happens, this article is timely for me, as I am completing this weekend the draft of an essay for the Hoover Institution on a roster of strategic uses of drones.  In bullet point form, here is an analytic breakdown of categories, as I see them, of drone use.  (I’m not providing more than the bullet title, even though the result is overly-cryptic; the full essay will be available once finished and edited at Hoover’s website or SSRN.  Also, if anyone is interested in my earlier published writing on drone warfare and the law, at SSRN’s free downloads, see this book chapter, this lengthy piece in the Weekly Standard, and two pieces of Congressional testimony, here and here.)

• Surveillance (sometimes policy and legal people forget this in all the controversy over weaponized drones and targeted killing).
• Drones used by the military or CIA in Afghanistan as part of combat operations and counterinsurgency.
• CIA drones in Pakistan used in counterterrorism against high value terrorist leadership (ie, against senior leadership such as Mullah Omar or Bin Laden or others in AQ).
• CIA drones in Pakistan used in counterterrorism against high and lower level operatives, including the current strikes against locations and camps of terrorist groups apparently planning new strikes in Europe or the US (as some of the CIA drone strikes undertaken now are apparently intended to do, such as those against the Haqqanis).
• CIA drones used in Pakistan in support of Afghanistan counterinsurgency operations against safe havens for Afghanistan Taliban.
• CIA (or even military) drones used in Pakistan in support of Pakistan government counterinsurgency operations against the Pakistan Taliban, separate from the fight in Afghanistan.
• CIA drones used in counterterrorism against AUMF targets (ie Al Qaeda or associated forces, in the context of participants in the current non-international armed conflict (NIAC), as legally defined), whether in Yemen, Somalia, or conceivably elsewhere.
• CIA drones used either as part of the AUMF-NIAC or else as (legally independent) self-defense operations, against US citizens who have taken up terrorist participation and made themselves subject to targeting (operationally not really different, but legally potentially raising different law and policy questions because of the US citizen status).
• CIA drones used somewhere down the road against terrorists unrelated to anything going today, whether in an ongoing armed conflict or as an operation in self-defense.

The list proceeds more or less according to an expanding political geography starting with Afghanistan; it deliberately leaves aside Iraq for these purposes.  The main internal analytic axes are political geography; who uses the weapon and on whose behalf; and who is targeted by the weapon.

The long-term question of drones is whether they are going to remain a remarkably useful weapon in support of a large variety of missions in different ways, or whether instead the US decides to try and leverage them into something much more strategically radical – the new strategic air power.  In other words, the latest iteration of a very old dream, the ability to win wars from the air.  But this time with a twist.

Strategic air power in the past both promised to win because it could deliver apparently huge amounts of kinetic energy, but then tended to lose (or at least not be decisive)  because the huge amounts could not be targeted in order to achieve the required strategic aims.  (For a discussion of recent, Kosovo war-era debates over the ability to win wars from the air, look at this excellent article from Byman and Waxman.  Moreover, Israel went down the air power road in Lebanon, hoping to avoid serious ground engagement, and quickly ran into major problems.)

Drone attacks and targeted killing, in the full realized sense with a range of vehicles from very large to tiny, with weapons ranging from large to small, and with improved sensors arrays and processing integration, hold out the hope of being able finally to deliver the blows precisely where one wants.  We think of the virtue of targeted killing as being discrimination for its own sake, limiting the damage of war.  In pursuit of strategic air power victory, however, we might do better to think of discrimination in targeting for the sake of (finally) being able to put power precisely where we want it.

It might work out that way; it might not.  Drones have not yet been met in the field with counters – surface to air missiles, for example, of the kind that dealt a crippling blow to Soviet air superiority in Afghanistan.  Or technological counters to the remote-control communications systems that allow drones to be directed from near or far away. What concerns me from a strategic standpoint is that the US might decide that drones are cheap, reduce risks to but also need for manpower, and that it finally has the ability to achieve its aims (as Vice President Biden has implied in his early-on stance in favor of drone counterterrorism rather than counterinsurgency war in AfPak), not through the burden and cost of boots on the ground, but over the horizon using this new iteration of the dream of strategic air power.

It seems unlikely to me that this will work.  I understand the attraction.  And I also understand that it does represent an advance on an earlier version of strategic air power – the post WWII idea that strategic nuclear air delivered weapons meant we no longer needed a large standing army, because of the nuclear deterrent in an over the horizon way.  That version of strategic air power could not work to the end of reducing the need for a conventional army, because the threat of nuclear war was too monumental to be useful at the margins.  You could never actually pull the nuclear trigger over something important but not so important to go to nuclear war over.  So it turned out that you either ceded ground incrementally at the margin, or else you went back to having a conventional army that could respond at the margins.

Drones potentially make that less of a problem, precisely because they allow calibrated responses in a discriminating way.  But it seems doubtful to me that a technology will not rapidly develop technological responses, and that in any case, it is a huge advance, but not a truly decisive one; it seems to me likely to remain a useful tool if regarded that way, not a panacea for having a sizable military.  In any case, history is littered with instances of believing that at last we had found the successful path to strategic air power victory.

Update: Woodward’s book, which I’m reading now, discusses many issues relevant here.  Four stand out for this topic.

• First, he notes that the number of drone strikes under Bush was tiny, in large part on account of an enormous fear of the consequences of civilian casualties, even in numbers that the administration believed were entirely justifiable – fears, in other words, of accusations of atrocities, war crimes, etc., from the fear of a de-legitimizing activist campaign.  The Obama administration, believing correctly that it was immune to such campaigns, did not have to worry about such repercussions.
• Second, the earliest drone strikes in Pakistan under Bush had only limited effectiveness, because the US, out of concerns for Pakistani sovereignty, advised the government of impending strikes; elements of Pakistan’s intelligence service warned Al Qaeda, and they dispersed from the target zone prior to the strike.
• Third, he notes that Michael Hayden, while embracing the use of drones as counterterrorism against high value targets, did not believe that it could “win” the struggle against Al Qaeda or the jihadist extremists, because the pinpricks were not enough to root out the movement even if leaders were killed.  Hayden thought the drones essentially tactical rather than strategic.
• Fourth, he says that the reason the drone were, and are, effective is because of a strong effort over five years to create a ground level network of intelligence of critical value – developed it seems out of the CIA from human intelligence.  That, integrated with massive advances in signal and communication surveillance, has enabled drones equipped with still not much more than tactical video surveillance in the air to be directed to the crucial targets.  It is not the surveillance gathered by a weaponized drone that matters so much as the intelligence gathered in a combination of on the ground human intelligence and communications monitoring that allows an effective strike.

One of the biggest implications for drone strikes by the CIA in Pakistan and Afghanistan, as I read the Woodward book, then, is that the CIA (under Hayden and surely the same under Panetta) regards its human intelligence and a certain on the ground presence, as well as communications monitoring outside of the tactical use of the drones themselves, as crucial to their success.  The drones are effective – insofar as the ground is prepared by other kinds of intelligence activities and technologies.

[DOS Legal Adviser Harold] Koh correctly asserted that the 2001 Authorization for the Use of Military Force, international law and the country’s inherent right to defend itself put it on solid legal footing for such attacks, including those outside traditional battlefields … In his [March ASIL 2010] speech, Mr. Koh did not address whether U.S. citizens could be the targets of these strikes.

The American Civil Liberties Union took up Mr. [Anwar] Aulaqi’s cause last week, arguing that it would be unconstitutional for the government to carry out such a strike against an American, especially one located outside a recognized war zone.

U.S. citizens who take up arms against the country are enemy combatants and are indistinguishable on the battlefield from other belligerents. The political, legal and moral calculus of addressing the threat posed by an American enemy combatant such as Mr. Aulaqi changes when he is located outside a recognized war zone. The discussion should be — and we trust would be — dramatically different if he were residing in an allied country willing to use lawful means to capture and turn him over.

But when a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used only when other lawful means of apprehending the person are unavailable or too dangerous to pursue. Such decisions should be approved by the president, and the bipartisan leadership of congressional intelligence committees should be notified in advance. Mr. Koh said in his speech that this practice is already followed, even in cases involving non-citizens.

I agree with the fundamentals of the editorial; so does Ben Wittes, commenting at the new – and I suspect soon to be indispensable – national security blog, Lawfare.  Not everyone does, to be sure; over at Opinio Juris, my co-blogger Kevin Jon Heller argues that, at least outside of a recognized war zone, an American is entitled to adversarial judicial process, and adds:

We would never allow a state to execute an American citizen simply because the Governor has decided that he was guilty of capital murder (or, worse, that he intended to commit capital murder at some unspecified point in the future); such an execution would be a paradigmatic violation of due process. So how can anyone argue in good faith that due process permits the targeted killing regime adopted by the Obama administration?

There is, of course, an easy and fair solution to this problem: require the government to obtain judicial authorization for a targeted killing by proving, in an adversarial hearing, that the American citizen has committed a capital crime. If the government has reason to believe that notifying the target of his status will cause him to disappear, it can appoint counsel — perhaps the ACLU or the CCR? — to represent him in a secret proceeding.

It’s an interesting scenario – CCR Michael Ratner representing a gone-missing-in-Yemen Aulaqi, getting a chance to review the government’s secret evidence, being able to review the secret methods of secret evidence collection in a secret proceeding, not only the contents of which presumably need to be kept secret but the very fact of the proceeding as well?   I wonder what the internal reaction to this scenario would be inside Koh’s shop at the State Department, let alone at DOJ, DOD, NSC, DNI, or CIA.  But now a couple of final comments which go to issues that haven’t been so much discussed.

First, if one reads the ACLU-CCR filing as well as the Washington Post opinion piece by the two advocacy groups which has also been discussed at Lawfare and Opinio Juris, it is hard not to notice that the underlying argument is only secondarily about an American citizen being targeted – and primarily about the idea that an armed conflict in a legal sense is necessarily geographically bounded, limited to particular battlefields and acknowledged “theatres of conflict.”

On the citizenship point, one understands the problem – the progressive left of which these groups are a part tend to put no weight on citizenship much of the time, treating it as a morally accidental and therefore morally suspect category – except when it comes time when it can be invoked to offer protection.  (One might regard this as a theory of citizenship premised on the view that it promises only goodies, and is merely a mechanism for internalizing benefits and externalizing costs.  As with most situations of continuous moral hazard, such a conception can’t really last.)  At the end of the day, the advocacy groups see the citizenship issue merely as a strategic argument for protecting a group (Americans) that has no actual special moral claim.  And so, whatever the argument over targeted killing are at any given moment to advance the cause of prohibiting them, the advocacy work won’t be done until it also addresses the presumptive human rights of non-Americans equally.  Citizenship is merely strategic.

Second, going to the geographic definition of war as a legal concept.  This idea that armed conflict as a matter of its legal conception is geographically limited in this way has gained currency primarily from the writings of the International Committee of the Red Cross’s Nils Melzer, who so argued in an important book, Targeted Killing in International Law.  And also Notre Dame law professor Mary Ellen O’Connell, who has argued this proposition (as well as an associated claim that all participation by CIA personnel in the use of force is an international crime).  I cannot say that these claims – although heroically urged by the advocacy groups and their academic allies – have a basis in the law of war as the US (or really, leading war-fighting states) has traditionally understood it.  Certainly the State Department, under Harold Koh, no less, does not even entertain it.  And even military lawyers who are very far from defending the Bush administration’s war on terror do not endorse the “geographical” limitation.  (I have a complicated legal view of all this, related to self-defense and armed conflict, but not one that really matters for this purpose.)

Rather, the customary view of the US – and the traditional view of war-fighting states – has always been that the fight can lawfully go wherever the participants go.  It goes where they go. “Battlefield” and “theatre of conflict” are not legal terms in the treaty law of war, not as limitations on the armed conflict itself.  The law of war accepts as a practical reality that the armed conflict is where hostilities happen to take place, which means, of course, that the armed conflict is a reflection of hostilities and hostilities can be undertaken as a matter of jus in bello where the participants are.  The reason for this traditional rule is obvious – if the armed conflict is arbitrarily limited in this way, then it invites combatants to use territory outside of the “armed conflict” as a haven.  Under some circumstances, for diplomatic or other political reasons, a state might choose not to attack even though participants are taking haven, but the reason is not a matter of the law of war jus in bello.

The ACLU-CCR view acknowledges (at this point in its advocacy campaign, anyway) that a US citizen might be lawfully targeted – not to put too fine a point on it, and a note, per Orin’s earlier post, to judicial clerks – without the permission of Proconsul Kennedy, provided that he be on an “actual” battlefield as the ACLU legally defines it in its own way.  That being the ACLU’s view for the nonce, then the geographical distinction is crucial as a matter of law.  Within it, the US citizen can be treated as a combatant like any other; outside of it, then in the ACLU and CCR’s view, constitutional rights follow the citizen.

It is important to understand, then, that the ACLU and CCR’s advocacy position is not limited at all to US citizens – it is to impede targeted killing by requiring, among other things, the permission of a Federal judge at a minimum, including for non-US citizens.  Since it seems, as a matter of political advocacy at least today, a bit of a stretch even for the ACLU or CCR to try and argue that an American shooting at US soldiers in Afghanistan is owed a judicial hearing, the crucial premise is to separate out those “active” war zones as a matter of law from places where constitutional due process meted out by a federal judge obtains.

The citizenship issue is best understood, then, as a stalking horse for a larger advocacy strategy in which, in the case of US citizens, constitutional rights follow US citizens even beyond territorial borders – a questionable proposition, in my view, if that is supposed to mean “all” or even “all important” ones.  (There are many reasons why territory matters in the existence of constitutional rights – the actual exercise of actual police powers over the national territory, versus Yemen or Somalia, for one thing; it is partly, but not just a formal concept about sovereign territory.  The Post editorial dealt with that correctly, in my view.)  And in the case of non-citizens, outside of what the ACLU defines as the legal armed conflict zone, full human rights law applies on the ACLU-CCR, to render the targeted killing an extrajudicial execution; likewise, in my view, a questionable proposition.  But in the discussion of the current ACLU lawsuit, I think the fundamental premise, and the most dubious one as a matter of law – geographical limits on the legal state of armed conflict – has been somewhat passed over as people have argued instead about citizenship.

Third observation – why the assumption that in everything, including crucial issues of national security abroad, there is always a role for the Federal judiciary?  The Washington Post editorial emphasized, correctly, in my view that indeed a US citizen was deserving of greater scrutiny in deciding whether or not to target; I deliberately use “scrutiny” as a non-legal term rather than “due process.”  The Post was seemingly careful not to suggest that this scrutiny should be that of a judicial process or Federal judge.  Rather, the Post quite correctly, to my mind, emphasized that this consideration should be built into the intelligence oversight process – some kind of mechanism to ensure that the fact of citizenship has been acknowledged and a heightened evaluation made.

The WP says that the bi-partisan intelligence committees should be informed – a matter with which I could not agree more, on this as well as other matters involving Congressional oversight of the intelligence community.  But there is a special salience here.  Because in these targeted killings and other intelligence actions, officials tasked to carry out these missions need to have assurance that they will not be scapegoated afterwards.  They do not have it now.  A crucial political mechanism is to ensure that the intelligence committees have been fully and completely informed – so that there can be no later deniability as to what Congressional leaders were informed in secret.

I would write that as an amendment – perhaps; I could also be persuaded putting anything in writing is merely an invitation to judicial intervention – into USC 50.  This would be partly to make clear both that the process is vested in the political branches as a matter of national security, but that in the case of Americans abroad and possibility the subject of forcible actions by the actors in the “intelligence community,” the President shall, in the lawful exercise of his discretion, take into account that the person is American.  But it would also be to say explicitly that nothing in the exercise of that discretion confers any substantive rights on any individual and that the judiciary has no power to review such exercise of Presidential discretion.

As various people have pointed out, the current ACLU lawsuit is not likely to go anywhere.  From the advocacy point of view, that is not really the point.  It is instead to keep create as much legal uncertainty as possible by raising the possibility that at some point down the road, perhaps some Federal judge will decide to entertain these possibilities, and hold some CIA official liable for something done years before – does any, these days, think that we are in a period of settled institutional views on liability?  If anyone thinks that even a small amount of legal uncertainty for individual officers involved does not have consequences, they should think again.  Leveraged legal uncertainty affects behavior.

Moreover, the US government, under any administration, is perennially unable to see the larger advocacy campaign – this as well as other ones.  They are textbook examples, whether one agrees with the cause or not, of The Logic of Collective Action; they look to the ten year framework, and they understand something that seems to elude too many law and economics scholars, viz., the framing power of legitimacy.  Hence the current formulation of the ACLU lawsuit – execution without trial of an American citizen abroad by his government.  One might think that “execution without trial” tendentiously presumes the conclusion, but it has been faithfully picked up and repeated by numerous journalists and commenters as though it were the obvious starting point rather than a tendentious conclusion.

When I talk with government lawyers about this public advocacy issue, however, their response tends to be … but Harold Koh already addressed this in his speech!  It’s been settled, already!  But if you are engaged in an advocacy campaign for the long run, Koh merely gave momentarily the wrong answer, and the task is to endlessly reframe until everyone has forgotten what he said and what’s left is, “execution without trial.”

Finally, the long march of advocacy groups through the institutions puts a greater importance on that least-impressive branch of government, the US Congress.  It needs to get involved – to take up its responsibilities as one of the political branches to set the most basic terms of national security.

But for a sharply contrary view to all of this – a view that, when contrasted with this or with Harold Koh’s views, shows just how much these basic conceptions of national security are today ships passing in the night – read Kevin’s (several) posts at OJ as well as Ben’s comments at Lawfare to which Kevin is partly offering a reply.

When people talk about surveillance UAVs, they are typically thinking about border patrol, but here, the park services are thinking about fire patrols – an immensely expensive task from aircraft now, because of the vast areas to be surveyed in real time – but worth it because the faster the fire is spotted, the better the chance of containing it before it spreads. LIkewise, search and rescue for lost and injured back country hikers. That one is somewhat ahead of existing technology, for what the park services would ideally like, because flying in the steep valleys and canyons is difficult and hazardous now, but UAV technology is not sufficiently up to speed to take over those tasks. But it will happen soon, as smaller UAVs that are more like large birds can be deployed in difficult, deep, or narrow spaces. Likewise, as the sensor technology gets better, cheaper, and more available, it will be easier to find a single lost hiker using not just things like infrared signatures, but sensor arrays that are … well, if they exist, they are still only available to the military.

Point being that UAVs are going to spread rapidly and widely across a huge array of tasks and functions currently carried out by manned aircraft. It will happen because UAVs will be so much cheaper, efficient, and in many functional aspects superior to using people in airplanes. The impetus will rapidly turn from being military, as it still is now, to civilian. Everybody, everywhere in the world will shift that direction.

I raise this because there is a meme that still circulates with some velocity in the international law community, journalists, and others, that the US is risking setting off some kind of UAV arms race by its increasing roboticization of conflict – not just UAVs, but ground vehicles, and so on. I don’t think that’s right; the meme fundamentally misunderstands the technology and its application. Rather, UAVs are going to spread across a very wide range of aviation in any case, in which military uses will just be one of them. The same technology, cost, safety, efficiency, and so on, drivers that push for fire surveillance in the Sierra Nevada will be exactly the same ones that drive the military to use the technology. One can call it an arms race, I suppose, but only if one imagines that it is all about military use, otherwise it is a misleading way of thinking about the technology.

A better way to think about this is to go back to what make robots robots. In general, there are three conceptual pieces: A locomotion function or means of gross movement or action in the world; computing and central processing power to be able to analyze; and sensors to bring in streams of data which, being analyzed, result in some form of gross mechanical action. (In the case of US military UAVs, we can add an additional piece that brings them into an intersection loosely with ‘cyber’ – the communications net that allows them to be piloted over Afghanistan from the US.) Focusing on the UAV’s gross locomotion part, the flying part, and saying that it will lead to an arms race in which everyone will want one and arm it with a missile misses the point. There is no arms race about that – the technology for flying remotely has been around for decades; anyone who wants to build one can do so at a hobby shop. Putting a missile on it is child’s play, literally – presumably no one would be so politically incorrect as to propose building a Predator with a missile as the next high school robotics competition for high school teams, but apart from political sensitivities aside, one reason is that it’s just too darn easy. Flying is easy; making a machine that walks up stairs is hard.

Everyone will have UAVs because everyone will want them for so many, many things, mostly unrelated to military or police missions. Any government that wants to arm one with a missile will have no difficulty doing so. The real technology issues are not with flying, or with weaponization – or even with computing power. That’s all off the hobby kit shelf. No, the real technology issues arise with sensors. One robotics scientist in Silicon Valley told me last year that it was largely unrecognized, but the real advances in technology of the past decade had not been in computers as such, but in sensors and controllers, ranging from new ways and kinds of bringing data streams online to direct neurological, direct brain control of robotic limbs for amputees, and so on.

But now, note the issue. Some of this technology is classified for military R&D; other parts are not. The importance of robots outside of the UAV context are immense in large part because the Baby Boom generation does not have sufficient children to see us off to our reward; we are going to slide into dementia and be cared for and comforted by cuddly robotic dolls that we will think are human, to judge by where things are going in Japan. In the US, we are not so aware of this, yet, although it is striking that the Times and the WSJ have both moved on in their robotics coverage from targeted killing via UAVs to much more friendly news stories about Alzheimer’s patients in Japan being soothed by robot plush dolphins. Dolphins that will be smart enough to monitor medical conditions and call 911 if needed, to take obvious examples, or monitor whether a patient has taken the meds, or any number of things. What lies behind this is sensor technologies.

In an armed conflict context, however, it is questionable how many of the fighting forces in the world, state or non-state, will feel any great obligation to minimize collateral damage or attempt to more and more affirmatively id a target before striking. If you don’t feel that obligation – I would estimate that the countries involved will be the US and Israel, and the rest of NATO only insofar as it ever intends to do any more fighting, but in any case, they will simply acquire US technology. China will likely do so, because it would at least want every capability, and because it can most likely steal the technology and reverse engineer any missing parts. But either sensor technology will spread across civilian uses, such as elder care robots, so as to make the concept of an ‘arms race’ moot, or else the number of countries that will be “racing” to have such technologies will be almost entirely limited to countries that (a) fight and (b) care about the rules. That makes the list frankly pretty short. It is possible that India might join that list, along with Taiwan, South Korea, and a handful of others in Asia. But there will not be an “arms race” around sensors, because they are useful primarily for reasons related to more discriminating targeting, and the militaries in the world interested in that is not a long list.

Will there be an evolution of arms around UAVs, then? Yes, but not likely along those parameters. The likely arms race is along a quite different one. Predators are slow and noisy for targeted killing; it will not take long before some party – Iran – begins doing what the US did via the CIA in Afghanistan against the Soviets, and supplies rudimentary surface to air missiles to attack the drones. The arms race will get underway in the classic evolution of protecting air dominance. The Predator, for example, might launch not a missile, but instead a still smaller drone with a single-person weapon, specifically designed for up close use. That will be a function not of flying technology or weapons technology, however, but, once again, sensors. But an arms race over air superiority is not one that has the implications for the supposed dangerous spread of this new military technology – introducing dangerous new dynamics between India and Pakistan, for example – that numbers of commentators seem (still) to imagine.

I am returning to the solitude, which is to say, the off-lineness of the mountains.

Bennett, a former Marine and Harvard graduate, had retired in May after a nearly 30-year career at the CIA, but was coaxed back to take charge of the service, which runs human intelligence and covert operations. Among other posts, Bennett previously served as chief of Special Activities Division, the agency’s covert paramilitary unit ….  While station chief in Pakistan, one of the agency’s most sensitive positions, Bennett was deeply involved in the drone campaign that has killed hundreds of al-Qaeda and Taliban operatives, including at least 20 senior figures.

First, the special ops units are going on aid missions, and as the article notes, they sometimes do so in civilian dress:

The Special Operations teams join the aid missions only when commanders determine there is relatively little security risk, a senior U.S. military official said, in an effort to avoid direct engagement that would call attention to U.S. participation.  The U.S. troops are allowed to defend themselves and return fire if attacked. But the official emphasized the joint missions aren’t supposed to be combat operations, and the Americans often participate in civilian garb.

The rules for when uniforms are required or not, and when non-standard uniforms are permitted, are more complicated and context dependent than many realize.  The dean of the Department of Defense laws of war studies, a friend and adjunct professor at my law school, Hays Parks, has written several articles addressing the technicalities of uniforms, but the bottom line is that the rule is not that servicepeople always have to perform their duties in standard military uniforms.  Special forces personnel operating with Northern Alliance groups early in the Afghan conflict, for example, dressed like the Northern Alliance groups – there was no obligation to call attention to oneself through one’s uniform as specifically US military.

The on the ground effort signals a greater emphasis on counterinsurgency by the Pakistani army itself, as it has gradually come to see itself in a war inside Pakistan against its own Taliban enemies, and not simply as a staging area for the Afghan fighting.  As Adam Entous of Reuter’s noted in an excellent article a few weeks ago, this is a shift for the Pakistan military and for the US as well.  Drone strikes, for example, are occurring in Pakistan no longer as simply part of the US counterterrorism strategy of seeking to strike at terrorists in their safe havens, but as part of regular combat.  It is a distinct strategic role in which the US is supplying an air weapon for the Pakistani army, and, as this article suggests, money and equipment for counterinsurgency as well.

During the past two years, Pakistan has stepped up military operations against the militant groups that operate in the tribal areas. Although Washington has praised the Pakistani offensives, Pentagon officials have said Pakistan’s military needs help winning support among tribal elders. If successful, the joint missions and projects may help the Pakistani military retain control of areas in South Waziristan, the Swat valley and other border regions they have cleared of militants.

The use of drones, then, needs to be understood in two different strategic contexts – an air weapon in an overt war, alongside the high value, intelligence driven targeting of terrorist leadership that has mostly been the center of attention.  I’ve been having conversations with various journalists in the past couple of weeks; I am struck by their perception – accurate – that drone strikes have been on the increase in Pakistan, but their unawareness of the differing roles, combat counterinsurgency versus counterterrorism that in part accounts for the rise in drone use.  (In another post, I’ll take up the questions of counterinsurgency strategy; I have a somewhat different perspective, having seen it for many years through the lens of a human rights monitor seeing how it sometimes worked, and sometimes didn’t, in conflicts in which the US was not, or was only peripherally, involved.  Wars in Latin America, and other places.)

Traditionally, when a nation went to war, it had to invest its blood and treasure, but today’s joystick-wielding drone pilots can launch a missile strike from here at home, then hop in the minivan to meet the wife and kids for dinner. War couldn’t get any more impersonal.

And this is bad, why?  Because it is striking, all on its own, that Ms. Raddatz thinks this state of affairs obviously undesirable in some way; the disapproval stands out, along with the apparent sense that it is so obvious that one need not even explicitly state why it is bad.  But two views stand out from Ms. Raddatz’ account.  First, American forces wielding drones have a playstation mentality when it comes to war.  I last raised this at a conference a few days ago of military lawyers; the reaction was a collective sigh and roll of the eyes.   Second, through the use of drones, the United States and its fighting men and women invest insufficient  amounts of their own blood (why else phrase it “had to invest”?).

This comes in a special “big ideas” section of the July-August 2010 Atlantic.  Actually, there’s nothing big or special about it.  Ms. Raddatz is recycling conventional wisdom that got started back with some bits of Peter Singer’s Wired for War, and then elevated into a shared journalistic meme with Jane Mayer’s New Yorker piece last fall.  Ms. Raddatz does not seem to have received the memo, however, that the conventional wisdom among journalists is that even if you think that drones mean that US forces are not sufficiently engaged with their own blood, it is impolitic to mention it.

After I and a number of others began to call journalists and advocates and activists out on the question of whether they really, truly wanted to go on the record with what they were saying – ‘drones reduce the personal risks to US forces below the “efficient” level that would disincentivize “inappropriate” recourse to violence’, as a too-clever law student at one of our elite law schools put it to me last year – well, there was a sudden backpedaling.  No, no, you misunderstand us (this from the ACLU), we always respect the professionalism, &tc., &tc., of US servicemen and women (although the CIA, another story; it is the Designated War Criminal, so far as I can read where the international advocacy community would ideally like to carry this over the next few years, once the Obama administration is safely departed from office).

Ms. Raddatz’ “big idea” is at least six months behind the times.  Perhaps her bosses at ABC will encourage her to do a walk-back.  But it is helpful to have the unfiltered biases of journalists at least occasionally on public display so that we all know what they are, particularly when it comes to the lives of American servicemen and women, as viewed by our leading foreign correspondents.

My view is … thank you to all American forces for your sacrifices and your heroism, this 4th of July and the rest of the year.  Any time the United States can find technology that will make your task safer – particularly while reducing civilian collateral damage over what war traditionally has meant (e.g., a rolling artillery barrage by the Pakistani army) – then, well, faster please.

More than any other counterterrorism tactic, targeted killing operations display the tension between addressing terrorism as a crime and addressing it as war.  The right of a government to use deadly force against a citizen is constrained by both domestic criminal law and international human rights norms that seek to protect the individual’s right to life and liberty.  In law enforcement, individuals are punished for their individual guilt.  Guilt must be proven in a court of law, with the individual facing trial enjoying the protections of due process guarantees. Killing an individual without trial is allowed only in very limited circumstances, such as self- defense (where the person poses an immediate threat) or the immediate necessity of saving more lives.  In almost any other case, it would be clearly unlawful, tantamount to extrajudicial execution or murder.

When agents of a state seek to engage in enforcement operations outside their own territory without consent of the foreign government, they are further constrained by international norms of peaceful relations and the respect for territorial boundaries among states.  Ordinarily, when a criminal suspect finds refuge in another country, the United States would ask the other country for extradition to gain jurisdiction over him.  Even interviewing a person outside of U.S. territory would be unlawful; executing him would be an extremely egregious offense.  Violations of these norms run the risk of replacing law with force and spiraling international violence.

In wartime, governments may use deadly force against combatants of an enemy party, in which case the peacetime constraints are relaxed.  But in war, the enemy combatants belong to another identifiable party and are killed not because they are guilty, but because they are potentially lethal agents of that hostile party.  Moreover, soldiers are easily identified by the uniform they wear.  Once in the uniform of an enemy state, any soldier, by commitment and allegiance, is a potential threat and thus a legitimate target, regardless of the degree of threat the soldier is actually posing at any particular moment: the relaxing, unarmed soldier, the sleeping soldier, the retreating soldier—all are legitimate military targets and subject to intentional targeting.  No advance warning is necessary, no attempt to arrest or capture is required, and no effort to minimize casualties among enemy forces is demanded by law.

The identity and culpability of an individual not wearing a uniform but suspected of involvement in terrorism is far less easily ascertained.  While combatants should not benefit from defying the obligation to distinguish themselves from civilians (wearing civilian clothes does not give a soldier legal immunity from direct attack), the lack of uniform does raise concerns about the ability to identify individuals as belonging to a hostile force. Moreover, joining a military follows a distinct procedure that allows for a bright-line rule distinguishing between those in the military and those outside it (although it hides the dangerous responsibility of civilians who take part in hostile activity without being members of the armed forces).  Joining a terrorist organization does not necessarily have a similar on/off switch; individuals might join the organization or support it in some ways or for some time, but then go back to their ordinary business without any ritual marking their joining or departing.  Identifying individuals as terrorists grows more difficult as organizations, such as Al-Qaeda, become a network of small dispersed cells, or even individuals, making the association with a hostile armed group even more tenuous.

Despite these difficulties, both the United States and Israel (as well as several other countries) have made targeted killing—the deliberate assassination of a known terrorist outside the country’s territory (even in a friendly nation’s territory), usually (but not exclusively) by an airstrike—an essential part of their counterterrorism strategy.  Both have found targeted killing an inevitable means of frustrating the activities of terrorists who are directly involved in plotting and instigating attacks from outside their territory.

Adopting a position on targeted killings involves complex legal, political, and moral judgments with very broad implications.  Targeted killing is the most coercive tactic employed in the war on terrorism.  Unlike detention or interrogation, it is not designed to capture the terrorist, monitor his or her actions, or extract information; simply put, it is designed to eliminate the terrorist.  More than any other counterterrorism practice, it reveals the complexity involved in classifying counterterrorism operations either as part of a war or as a law enforcement operation.

Following an initial hearing on unmanned aerial vehicles (UAVs) and drone warfare by the House Subcommittee on National Security and Foreign Affairs on March 23, 2010, the Subcommittee held a second hearing, Drones II, focusing specifically on the legal issues raised by drone warfare and targeted killing. The witnesses represented a wide range of legal positions on the question of drones, the use of force, armed conflict, and the roles of the military and the CIA – Kenneth Anderson (American-Hoover), William Banks (Syracuse), David Glazier (Loyola Los Angeles), and Mary-Ellen O’Connell (Notre Dame), with written submissions by Michael Lewis (Ohio Northern) and the ACLU.

(This SSRN paper is Kenneth Anderson’s written testimony, with annotations added in footnotes. It is best read in relation to the other testimony, which taken together offers a useful compendium of the current legal-policy views of the use of drones and the respective roles of the CIA and military in their use, and the nature of armed conflict against Al Qaeda and other targets. This hearing particularly offers a useful commentary on Department of State Legal Adviser Harold Koh’s March 25, 2010 speech that included an important section defending drone warfare and emphasizing the concept of self-defense as an independent ground for the use of force outside of either law enforcement or armed conflict. Where the other witnesses’ testimony is not posted to SSRN, their statements can be found at the House Subcommittee’s webpage. Given that the hearing was called with little notice, and little time to prepare a formal written statement, I have opted to add some annotations and expansion of my views in footnotes to this SSRN version that did not appear in the original version submitted to the subcommittee; other witnesses were also operating under time pressure and so statements are not necessarily formal in an academic sense. But taken together, they represent a useful look at the range of current legal-policy positions on drones.)

Professor Anderson’s written testimony starts from the proposition that drone warfare is a technological stalking horse for deeper issues about where armed conflict takes place; who may lawfully participate and how; whether law enforcement and armed conflict exhaust the range of lawful uses of force under international law or, instead, whether self-defense offers an independent ground for using force outside of armed conflict in certain circumstances; and in practical terms the lawful role of the CIA in using force, covert or otherwise.

Anderson’s testimony defends the distinction made by the Legal Adviser regarding self-defense as a separate ground of the use of force. His testimony endorses the view that armed conflict, as a legal state of affairs, occurs only when thresholds defined by treaty and custom occur, and that these are different thresholds for interstate armed conflict and non-international armed conflict with a non-state actor (which is how the three branches of the US government have conceived the war against Al Qaeda). It thus does not define an armed conflict as legally existing only within a theatre or on a traditional battlefield, but does accept that the non-international armed conflict with Al Qaeda is defined by places where hostilities have met the thresholds for sustained and intense hostilities with armed and organized groups.

Uses of force, including drone strikes, go where the targets go, whether within the existing zone of hostilities or elsewhere, but those uses of force might or might not – depending on the level and extent of hostilities – constitute armed conflict; a drone strike might be a self-defense action simpliciter. Anderson’s position – and, it seems, the Obama administration’s position – is that uses of force, even if not necessarily in every instance the “armed conflict,” follows the participants wherever they go. But that nuanced position is neither the Bush administration’s “global” war on terror view, nor is it that armed conflict is necessarily geographically confined. The Obama administration has not introduced a novel view of the use of force against terrorists; on the contrary, it has re-invigorated the traditional US view going back at least to the 1980s and even earlier.

The testimony defends the participation of the CIA as a legal matter in the use of drones within the existing armed conflict against Al Qaeda, as well as its separate use of drones in actions that might go outside any existing armed conflict either with Al Qaeda or, in some future moment, against some currently unknown threat. There are important US policy questions regarding whether the CIA should limit itself to self-defense actions involving covert action and intelligence-driven targeted killing, and leave the use of drones in conventional, overt conflict, but its participation is lawful. CIA personnel are not “unlawful combatants” insofar as they take part in the the armed conflict; the better legal view is that they are civilians taking “direct participation in hostilities” attached to a party to an armed conflict; rather than unlawful combatants, they are instead lawful targets through their DPH, or at least would be lawful targets if their adversary had any legal rights to use force against anyone: Al Qaeda, as a terrorist organization, has no rights of belligerency to use force against anyone, even those that have made themselves otherwise lawful targets.

The testimony endorses the view of the Legal Adviser that US targeted killing through its drone program, whether in AfPak, or Pakistan proper, or elsewhere such as Yemen or Somalia or beyond, does not require that warning or process or an attempt to invite surrender be given to targets. It endorses the Obama administration’s view that it is lawful under both domestic and international law to target US citizens, under legal justifications that might be, depending upon circumstances, either a matter of targeting in armed conflict or an act of self-defense as such.

This hearing statement is frankly assertive, conclusory, and not a formal academic presentation. Taken with the other hearing statements, however, it offers a relatively compressed introduction to the range of expert legal views in the US on these important issues of drones and targeted killing.

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.)

First, the Reuters story undertakes a very interesting analysis of the kinds and numbers of fighters being killed, to the conclusion that drone warfare in Pakistan is increasingly focused on taking out relatively low-level fighters, and in much greater numbers.  And notwithstanding a wealth of important quotations and analysis of different legal and policy matters, the biggest takeaway of the story is this:

In the rugged mountains of western Pakistan, missiles launched by unmanned Predator or Reaper drones have become so commonplace that some U.S. officials liken them to modern-day “cannon fire.” And they are no longer aimed solely at “high-value” targets like Mehsud, according to U.S. counterterrorism and defense officials.

Under a secret directive first issued by former President George W. Bush and continued by Barack Obama, the CIA has broadly expanded the “target set” for drone strikes. As a result, what is still officially classified as a covert campaign on Pakistan’s side of the border with Afghanistan has in many ways morphed into a parallel conventional war, several experts say.

Which is to say, the conflict in Pakistan has evolved to the point that, although the Pakistani government does not say so publicly, and neither does the US, one can say either that the conventional war in AfPak has widened to include the Pakistan Taliban or else that a secondary conventional conflict has opened up within the primary one.  Recall that two or three years ago, Pakistan was battling, or not, depending on the period, its own Taliban – but we were not directly involved, except in support of their fight.  Things have clearly broadened to the point that we and the Pakistani government are battling the Pakistan Taliban.  And, noting the Times Square bomber, the Pakistani Taliban have been planning for some time now how to bring the battle to us.

This, I would suggest, is the most important reason why the Reuters analysis found a greater emphasis on killing low level soldiers.  This is no longer covert, or not so covert, targeted killings of high value individuals, but a more discretely aimed part of the overt conventional war.  Cannon fire, but using vastly more precise weaponry – rather than something outside of the regular military operations, this is now part of the overt war, using much more precise weapons.  It is a weapon being used to harass the enemy’s rear – an unusual weapon in a quite usual battlefield role.

Second, an implication of this – not noted in the Reuters story, but important for the strategic picture – is that this evolution in the role of the drones in Pakistan, along with the evolution of who we are fighting, signals a shift in the nature of the fight in Pakistan, as far as the US is concerned, from “counterterrorism” to “counterinsurgency.”  It is no longer “targeted killing” in the original sense of counterterrorism.  The difference is that in using drones in the hands of the CIA to undertake strikes against high value targets, we had finally found a weapon by which to attack the terrorists, and the terrorist leadership, directly.  Without having to seize the terrain and engage in on-the-ground counterinsurgency through control of the population, in order to deprive the terrorist guerrillas of ground to go to.

That was the original attraction of the Obama campaign to drones, after all – fight terrorism without having to fight an actual war on the ground.  There are reasons to doubt that this would have worked – in an important sense, it is the latest incarnation of the ability of strategic air power to win a war, only this time in the form not of massive air power, but massively discrete air power.  In the event, the strategic deal worked out involved some of both – surge on the ground in Afghanistan, and increased use of drones in Pakistan.

In the course of the last year or so, however, that mutually complimenting relationship has shifted as the Pakistan Taliban has joined the ranks of directly fighting the US, and Pakistan concluding that it has to fight them much more aggressively.  The Pakistani stance might shift, of course.  But in Pakistan, the Pakistani army is engaged in the on-the-ground counterinsurgency, while the US undertakes the complimentary counterterrorism and, increasingly, a very particular form of air power.

Third, the policy question – not legal question, I stress, because in my view the situation is lawful as it stands – is whether it makes sense for the CIA to be conducting this parallel war.  In general principle, in my view, and I suspect in the view of many in the Agency as well as in DOD, the best arrangement is for the military to handle things that are looking more and more overt – and the CIA, together with special ops, handles covert operations.  However, everything is not equal, given that the Pakistani government is not willing to say that the US military is operating in its territory.  In that case, however, note how much the Reuters story details of ways in which the Pakistani military and government actually back the strikes – but prefers the fig leaf of the CIA conducting the operations.

That could change quickly given the volatility of the politics there, but the usual journalistic meme, both about the attitude of the government and the attitude, for that matter, of people in the tribal zones, is quite inconsistent with the Reuters account.  I’d add, fwiw as someone who is not in the region, just today, in conversation with a Pakistani military intelligence officer, I was told substantially what Reuters reported.

Fourth, the Reuters article takes up the blowback issue.  Meaning, these operations are creating ill-will among the population, and creating new terrorists and new fighters.  The story gives a number of interviews that challenge that view, at least today, in both Pakistani officialdom and even among those in the tribal areas.  The record it offers is mixed – but very far from the dominant Jane Mayer narrative that has so carried the media meme for the last few months.  As an analytic matter, however, I find the constant, reflexive invocation of blowback to be unpersuasive:

• It is easy to assert, and difficult to disprove – but also to prove.  Stripping out alternative explanations for this or that is not so easy.
• It will always be true at least in a trivial sense – so it is always true to say, always okay to quote in an article, but that does not tell you whether it really means anything.
• If one were to take blowback as seriously as the current media meme does, no policy would ever go anywhere; we would have a serious overtendency to do nothing, for fear of blowback.  As a consideration, sure it always warrants bringing up – but given as a reason for not acting, well, you’d better have really good evidence for not just people saying it, but for it actually undermining plans of attack, not just a logical possibility, however well reasoned.  It is a recipe for inaction, which might sometimes be right, but is not such a great presumption in war.  What was it Andrew Exum called for in one of the recent articles in which he was quoted on blowback – ‘we need more studies’ or something like that.  Is that really so?  As a substitute for not using something, like drones, that on pretty much every other metric is doing very well indeed?
• Those who reflexively invoke blowback when, for example, the Times Square bomber cites drone strikes – weirdly seem not also to note that journalists and Western analysts are not the only ones capable of thinking up the blowback thesis.  It might be true.  It might also be true – indeed, how could it not be true – that the Taliban have figured out that this would be a good thing to say – certainly it sows more Western handwringing than, say, “I did it for God and country.”  The Times Square bomber says, drones – the media says, see, blowback – well how do you know it is blowback or just playing you?
• Blowback is most important in counterinsurgency warfare, where you are out among the civilian population, and its goodwill matters – this, note, is the strategic frame of many of the military blowback critics – but it matters far less if the operations are counterterrorism.  It is also true that this conflict is mixing the two of them – and unsurprisingly, the commanders in Afghanistan are a lot more cautious about counterterrorism drone strikes.  But it is not clear that there is much of a blowback relationship, even assuming that it is a major concern, between Afghanistan and Pakistan.

Fourth, the article has a lot of useful discussion on the back and forth over civilian collateral damage.  Senior CIA officials, presumably from Panetta on down, seem to have been doing a reasonably good job of convincing fairly skeptical, and not especially agency-friendly, journalists at the Times and the Post that the CIA’s version of collateral damage is closer to the truth than the estimates that have come out of the advocacy NGOs.  I have also been struck that the oversight committees have not been leaking things that would suggest that its members think otherwise; perhaps the Obama effect can keep dissatisfied Democrats in line and Republicans would not defect on national security principle, but that has not typically stopped leaks in the past.  I have no special inside information and perhaps the many hundreds being killed that the NGOs have claimed is the truth, but I would urge people to be cautious in so concluding, particularly on a general assumption that if it is the CIA saying so, it must be false.

Fifth and finally, although strictly one has to look on a case by case basis in order to undertake consideration of the proportionality issue, even if one takes the NGO figures as gospel truth, the totals, taken on a rough intuition, do not look obviously terrible or even close.  On a time line of the past twenty years, this is marvelous improvement in targeting; taken on a century scale, this is the end of warfare as known in the past, and frankly praise the lord.  Even looked at in the context of fighting and weaponry today, these are figures that for warfare would be taken in most contexts to be an occasion for congratulation.  I would hope that NGOs, the ICRC in particular, would think long and hard about its mission and relation to weapons over the long term before moving to join the chorus of condemnation – or, worse, hanging back while the swarm attacks, a thousand paper cuts against the development of any new technologies that gradually, and over long periods of time, improve targeting.

So:  Dear ICRC, an organization for which I have immense respect and even affection:   You don’t have to live for the gratification of immediate headlines the way other human rights organizations do, so please think about this and what it looks like on a long term trajectory.  It would be, frankly, a very weird thing if the Japanese developed robots that can take care of elderly people and perform surgery and figure out who is who, etc., but no one dared apply this to warfare for fear of getting hit with a lawsuit under the Alien Tort Statute in the United States or a trip to the International Criminal Court, and so we developed whole new technologies of sensors and precision for everything but the battlefield.

If one’s view is that there is no moral or legal or any other basis for fighting in AfPak, then you are entitled to your dismay; under practically any other circumstance, the objection comes far too cheap.  The development of the concussion weapons, for example, that the Reuters piece describes – with very little shrapnel and killing by concussion inside a vehicle – well, I’m sorry, but this a good thing in the history of warfare, and it would be nice if that were recognized.  In some alternative universe, perhaps, the lions will lie down with the lambs, but the alternative in our universe is that the Pakistani army levels the place with artillery.

Last year, a Pakistani army officer described to me the operation in the Swot valley, his hometown, with tears in his eyes – and convinced in his grief that the US had a secret harmless nerve gas that it could have used instead to neutralize the fighters and spare the population, but it refused to use it.  Well, at this moment, the closest thing to that harmless nerve gas is actually predator drones.  And if the Reuters story is correct, it would appear that numbers of people in Pakistan are recognizing that privately, if not publicly.

(I’m traveling, so I’ll post the hearing information when I get home; the AP has a reasonably good summary (considering the difficulty of reporting on four law professors with quite different views politely agreeing and disagreeing with each other …!). The ACLU submitted a written statement (just downloaded but not yet read).)

We four professors represented a pretty good range of the available expert views, and in that regard particularly I think this was a useful hearing. In part, it sought to figure out what this debate meant following DOS Legal Adviser Harold Koh’s statement on drones at the ASIL meeting on March 25. Having been a sharp critic of the administration, or anyway its senior lawyers, including in the first drone hearing, for not stepping up to the plate on this topic, I applaud both the fact of the Legal Adviser’s public statement as well as the substance of his statement.

The pivotal issue – not surprisingly, for those following these debates – is the role of the CIA, whether it takes a role at all and, in particular, where it takes a role. The positions presented ranged from:

• Professor O’Connell’s well-known view that the participation of the CIA is and always is an international crime;
• Professor Glazier’s position that the targets who fit within the AUMF are targetable as part of an armed conflict and that the conflict goes where they go;
• Professor Banks’ position that the participation of the CIA is lawful under both domestic and international law, but that the law in each instance needs to be updated and brought to fit contemporary circumstances; and
• my own view, closest to Professor Banks’, that the CIA participation is lawful, but that there is a separation of the legal rationales and bases, depending upon whether it is a matter of armed conflict or the separate ground of self-defense.

Chairman Tierney did an excellent job of disentangling the highly entangled and conflicting positions among the witnesses. Not easy, because the disagreements are very sharp in some areas, less so in others.

(For my own part, I’m going to have to work on delivering a very clear message about my own views. Like many professors, including our President, I have a tendency to bury the lede in a bunch of hypothetical questions. I framed a series of questions about the role of the CIA – not because I think that its participation is unlawful, but because I thought it would be useful to frame the positions among which I was asserting one. When I read a number of the news stories afterwards, I discovered I had been cited for the propositions in the hypotheticals, not for my actual view that the CIA’s participation is, yes, lawful. My bad – there are reasons why I would never be a good litigator.)

The most striking take-away for me from the hearing was just how much the position of the professional international law community, as ably represented by Professor O’Connell, starts from fundamentally different premises than that of the US government, of any administration, at any time. In this particular instance, Professor Banks and I were, in various ways, channeling the administration – or, better said, the way in which the US government has long approached these questions as a matter of pragmatic law.

These two whole approaches to international law – that represented by Professor O’Connell, and that represented by me, and by Professor Banks and, in this regard, Professor Glazier – the approaches to international, and not just the substantive positions derived from them, are really like ships passing in the night. I tried to say this at the end of my comments: Professor O’Connell and I were arguing past each other, ships passing in the night. But the consequences in the real world are not ships passing; eventually they collide and one or the other prevails.  They can’t really meld into some mixed paradigm; the underlying assumptions are too different.

The problem?  If you talk about international crimes being committed by the CIA, each and every time it carries out a strike, those are words with consequences. It is hard to talk about merely “correcting” state practices to conform to international law in some general sense of the government of the United States, when the paradigm is that there are individuals who under principles of international criminal law, should not be undertaking a course correction by the administration. If that’s what you mean – and, please to observe, I don’t think this is the case at all – but if that’s what you mean, well, It should be indictment, arrest, and prosecution. For murder and extrajudicial execution and assassination. That’s what you mean if you invoke about international crimes; the whole paradigm is designed, by its nature, to reach to individuals and not simply “sides” in international law and politics.

Just to be crystal clear this time, I don’t think these CIA actions are international or domestic crimes. But the view of the administration, which I think generally legally correct, and that of its critics such as Professor O’Connell, really can’t be reconciled. And if you think it is a matter of international crimes (as, I stress, I don’t), then it doesn’t go away even if the Obama administration decided tomorrow to change course. It has undertaken hundreds of these strikes now, over a series of years; give it a couple of years more until it’s no longer President Obama, and then call it “crimes against humanity.”  After all, why not, once the political costs of attacking Democrats, with the genuine intent of finding criminal liability, is gone?

If the stakes are raised, as is currently underway by the soft-law community, to the level of serious allegations of criminality, then the Obama administration now finds itself at the beginning of the process that the Bush administration found itself in regarding detention, interrogation, and rendition. The ACLU is like a dog with a bone; following the relentless logic of collective action coordination failures, it will remain relentlessly focused, gnawing away, and those it seeks to play will be diverted and disorganized in their responses. Death by a thousand paper cuts, I think I wrote in the Weekly Standard. I am as ever stunned by the ability of government officials to think that the advocacy soft law community does not have the ability to set the agenda.

(Side note:  My general sense of the politics associated with this, then? Nasty. Not as nasty as I thought before Dean Koh’s speech, so perhaps I am simply inclined to see nastiness, but still … The table is being set now by the NGOs to turn the agenda into a genuinely international criminal one against individual CIA officials – once a Republican administration is in office. I find it hard to resist the sense that if you are, say, the ACLU or the human rights groups, this is win-win politically. The joys of public choice theory and defection game theory.

The game played by human rights organizations of what I have sometimes called “serial absolutism” is a special case in game theory of serially “moving the goalposts,” which in turn is a special case of serial insincere promising (these are the absolute, unshifting standards, we really, really promise this time!!), serial insincere promising about the procedural and constitutive rules of the game, followed by serial defection (whoops! it’s really crimes against humanity, now that the Republicans are in).  ’Moving the goalposts’ does not get enough attention in the iterated game theory literature, I think.  Unstable coalitions in domestic politics – leftwing Democrats aligned with various foreign and international constituencies, “gaming Spain,” as I’ve sometimes called it – prevent a unified American government from recognizing the pattern of repeat defection and trust-breaking and therefore refusing to take the promise seriously.

Thus, the advocacy groups start with the Obama administration, establishing their bona fides so no one can say that they weren’t even-handed, even though they know that it will only become real, a campaign that ripens into a real chase against individual lawyers, officers, and agents (probably starting with any easy-to-cut-out-from-the-herd military contractors), undertaken and underwritten by a concerted NGO campaign, ratcheting up to a crescendo a couple of years into the next Republican presidency. The only way to slow this down is by creating a policy and considered legal views in the Obama administration that can set a stable precedent for those administrations, Republican and Democrat, that follow.)

Director Panetta has been doing a remarkable job of push back in the press, and certainly with Congress, on the efficacy and focus of these strikes. (Of course, I regard Legal Adviser Koh’s statement as an outstanding beginning for the American government to state its long-term position on the law.) I suspect Panetta has convinced some important, and not otherwise friendly, reporters that the collateral damage is far closer to what the CIA says than what the NGOs say. But I’m not sure even he understands how much the ground is shifting even from the argument over collateral damage to a much more basic one – why does the CIA even engage in the use of force at all? Shouldn’t all uses of force be either military (in an armed conflict) or law enforcement?

Why does the CIA have any function of covert action? That question was plainly on the table in the House subcommittee hearing, and I thought there was a twinge of hesitation on the part of some lawmakers. I remarked – seemingly off topic but in fact at the center of things – the United States, like other leading states, has long believed that its national security and self-defense required a covert civilian service. We thought about ending it in the Church hearings but didn’t. We have had many opportunities to end it, but we’ve never taken them.

In my view, we are right to keep that ability. But there are plenty of people who think it a bad idea on both policy and legal grounds. (For that matter, in my experience, the Defense Department has many serious military people, both operational and legal, who think the use of force by the CIA is always a mistake and indeed illegal. I’ll discuss that view in another post.  Professor Glazier seemed to reflect this view in part, although I don’t want to speak for him on so fundamental a question.)

We are at one of those periodic moments, in other words, when the fundamental question of CIA covert use of force is on the table of public debate again. I hope that Director Panetta pays close attention to the tenor of the hearing last week and understands that among the multiple layers of issues – drones, drones beyond AfPak, the role of the CIA in an armed conflict, the role of the CIA in self-defense – the question of whether the CIA should ever use force is on the table.

State Department Legal Adviser Harold Koh‘s speech to the American Society of International Law has mostly been read as a justification of the administration’s use of drone strikes against suspected al-Qaeda targets. With the news that the Obama administration has targeted American-born extremist cleric Anwar al-Awlaki for death, I went back to Koh’s explanation for why the drone strikes are legal. It seems to me that his arguments could possibly double as a justification of the government’s authority to kill al-Awlaki without due process.

Serwer then walks back through the text of Legal Adviser Koh’s speech, applying the language about drones to the targeting of Anwar al-Awlaki.  He concludes that it could be seen as a justification for that as well.  I think that’s right, and a good observation.  Of course, I think also that targeting al-Awlaki is a good idea, legally justified, and moreover think this a persuasive basis for so concluding.

My dear friend Sandy Levinson posts briefly on this over at Balkinization, and comments on a speech by Jack Goldsmith at University of Texas:

I note that Jack Goldsmith gave an excellent talk at the University of Texas last week making the argument that in almost all fundamental respects the Obama Administration is continuing the “anti- and counter-terrorism” policies of the “second Bush Administration,” i.e., the second-term Bush presidency that freed itself, to at least some extent, from the mad-dog unilaterlism identified with Dick Cheney, David Addington, and John Yoo. It is difficult to disagree with Goldsmith’s argument, empirically. Whether we should be cheered or dejected is, of course, another matter entirely.

Curiously, this is one of the few matters on which I think that the Obama administration is not actually continuing the Bush administration policies – at least if policies includes legal justification as well as surface actions.  Legal Adviser Koh’s statement on drones and its explicit appeal to legitimate self-defense apart from armed conflict, as a basis for targeting (and agreeing here with Serwer, including targeting Americans), is simultaneously a break with Bush administration policy (even while, in one sense, broadening it), and a re-affirmation of a legal policy going back to the Reagan-Bush years.

The self-defense assertion is important, and intellectually engaging, precisely because it is not the ground on which the Bush administration claimed its ability to target people.  For the Bush administration, it was always armed conflict, global and plenary; for the Obama administration, it allows for two strikingly different legal rationales.  And yet the self-defense rationale has the further characteristic of being a break with the Bush administration – while also being a return to a longer, and deeper tradition in the use of force by the United States.

Legal Adviser Koh alluded to the importance and, within the executive branch and the State Department, the independent weight of that traditional jurisprudence in the beginning of his speech, in which he made some important – but by the press largely not-understood as being important – prefatory framing remarks about the internal jurisprudence of the executive branch.  Those methodological remarks were at once a response to Koh’s critics on his right, but also a warning (not enthusiastically received, to be sure) to the academic audience at ASIL to his left.

But drones and done targeting constitutes the exception rather than the rule of Obama administration counterterrorism policies and their continuity with the Bush second term; and overall, I quite agree with Jack and Sandy’s assessment.

The latest issue of Defining Ideas, a publication of the Hoover Institution at Stanford University, has a lot to say about President Obama—and almost none of it is good …  the Obama administration’s increase in funding for public schools is “doomed to disappoint.” Meanwhile his “aloofness” on Iraq is “a hindrance to him when it comes to issuing any call to arms in Afghanistan.” Cap and trade “could be economically unproductive.” And Obama’s reaction to the brutal crackdown in the wake of the elections in Iran was “tepid at best” … The lone bright spot? Drone attacks on terrorists.

The “lone bright spot” is referring to an article of mine, excerpted from my Targeted Killing chapter in Ben Wittes’s Legislating the War on Terror book.  If you’re looking for a quick summary of the drone warfare discussion, you could do worse as a place to begin than the op-ed length Defining Ideas excerpt.  I’m happy to be the voice of Hooverly praise for the administration!   But speaking seriously, yes, I have been praising the administration, and in particular State Department Harold Koh’s statement in defense of drone warfare, as regular readers of this blog and Opinio Juris know.

(I keep saying this in part because I haven’t managed to find an op-ed space in which to publicly endorse what Legal Adviser Koh has said.  But having been very critical of the silence of the administration’s senior lawyers on this issue, I have wanted to make clear where I can that the Koh speech is a big step forward.)

Update with thanks to pointer from Cory Andrews:

I am unable to say more at this moment, but I did want to flag Robert Wright’s New York Times Opinionator blog post for your attention.  Wright is unhappy with both drone warfare and targeting of US citizens, and many other things besides:

Students of the law might raise a couple of questions: 1) Doesn’t it violate international law to fire missiles into Pakistan (especially on a roughly weekly basis) when the Pakistani government has given no formal authorization? 2) Wouldn’t firing a missile at al-Awlaki in Yemen compound the international-law question with a constitutional question — namely whether giving the death penalty to an American without judicially establishing his guilt deprives him of due process?

I’m not qualified to answer these questions, and, besides, it doesn’t really matter what the correct answers are. The Obama administration has its lawyers scurrying to convince us that the answers are no and no, somewhat as the Bush administration dispatched John Yoo to justify its torture policy.

Hmm. That said, I must flee the scene, though I’ll try to say something to various of these issues later on; my disagreement with this view is not exactly news to Our Regular Readers.

… Mr. Koh, an unflinching critic of Bush administration anti-terrorism tactics during his years in academia, cited domestic and international law as foundations for the program. The United States is engaged in an “armed conflict” with al-Qaeda and its affiliates, Mr. Koh asserted, and “individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law.”

He rightly rejected the absurd notion that enemy targets must be provided “adequate process” before the strike occurs. “A state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force,” he concluded.

Mr. Koh’s reaffirmation of the right to self-defense — even outside the confines of an existing armed conflict — is particularly important. The Authorization for the Use of Military Force (AUMF) after Sept. 11, 2001, empowered the president to pursue those responsible for the attacks, including al-Qaeda and the Taliban. That authority may wane with time. But the right of self-defense is inherent and may be exercised against current and future enemies that pose an imminent threat, including those operating outside of traditional combat zones.

India is reportedly preparing to have “killer” unmanned aerial vehicles (UAVs) in response to possible threats from Pakistan and China. Until now India has denied the use of armed UAVs, but they did use UAVs that can detect incoming missile attacks or border incursions.

The importance of obtaining armed UAVs grew enormously after the recent attack on paramilitary forces in Chhattisgarh that killed 75 security personnel. Sources reveal that the Indian Air Force (IAF) has been in contact with Israeli arms suppliers in New Delhi recently. The IAF is looking to operate Israeli Harop armed UAVs from 2011 onwards, and other units of the armed forces will follow.

I’ve also read comments various places suggesting that increased use of drone technologies by the United States causes other countries to follow suit, or to develop or acquire similar technologies.  In some cases, the dangling implication is that if the US would not get involved in such technologies, others would not follow suit.

In some relatively rare cases of weapons technologies, the US refraining from undertaking the R&D, or stopping short of a deployable weapon, might induce others not to build the same weapon.  Perhaps the best example is the US stopping its development of blinding laser antipersonnel weapons in the 1990s; if others, particularly the Chinese, have developed them to a deployable weapon, I’m not aware of it.  The US stopped partly in relation to a developing international campaign, modeled on the landmines ban campaign, but mostly because of a strong sense of revulsion and pushback by US line officers.  Moreover, there was a strong sense that such a weapon (somewhat like chemical weapons) would be not deeply useful on a battlefield – but would be tremendously threatening as a pure terrorism weapon against civilians.  In any case, the technologies involved would be advanced for R&D, construction, maintenance, and deployment, at least for a while.

The situation is altogether different in the case of UAVs.  The biggest reason is that the flying-around part of UAVs – the avionics and control of a drone aircraft in flight – is not particularly high technology  at all.  It is in range of pretty much any functioning state military that flies anything at all.  The same for the weaponry, if all you’re looking to do is fire a missile, such as an anti-tank missile like the Hellfire.  It’s not high technology, it is well within the reach of pretty much any state military.  Iran?  Without thinking twice.  Burma?  Sure.  Zimbabwe?  If it really wanted to, probably.

So it doesn’t make any substantial difference whether or not the US deploys UAVs, not in relation to a decision by other states to deploy their own.  The US decision to use and deploy UAVs does not drive others’ decisions one way or the other.  They make that decision in nearly all cases – Iran perhaps being an exception in wanting to be able to show that they can use them in or over the Iraqi border – in relation to their particular security perceptions.  Many states have reasons to want to have UAVs, for surveillance as well as use of force.  It is not as a counter or defense to the US use of UAVs.

The real issue is not flying the plane or putting a missile on it.  The question is the sensor technology (and related communication links) – for two reasons.  One is the ability to identify the target; the other is to determine the level, acceptable or not, of collateral damage in relation to the target. That’s the technologically difficult part.  And yet it is not something important to very many of the militaries that might want to use UAVs, because not that many are going to be worried about the use of UAVs for discrete, targeted killing.  Not so discrete and not so targeted will be just fine – and that does not require super-advanced technology.   China might decide that it wants an advanced assassination platform that would depend on such sensors, and in any case be interested in investing in such technology for many reasons – but that is not going to describe Iran or very many other places that are capable of deploying and using weaponized UAVs.  Iran, for example, won’t have super advanced sensor technology (unless China sells it to them), but they will have UAVs.

(The attached weaponry follows the same pattern.  Most countries will find a Hellfire type missile just fine.  The US will continue to develop smaller weapons finally capable of a single person hit.  Few others will develop it, partly because they don’t care and partly because its effectiveness depends on advanced sensors that they are not likely to have.)

Robots are broadly defined by three characteristics – computation, sensor inputs, and gross movement.  Movement in the case of a weaponized robot includes both movement and the use of its weapon – meaning, flying the UAV and firing a weapon.  The first of those, flying the UAV, is available widely; primitive weapons are available widely as well, and so is the fundamental computational power.  Sensors are much, much more difficult – but only to the extent that a party cares about discretion in targeting.  But it is not the case that they are making these decisions on account of US decisions about UAVs; UAVs are useful for many other reasons for many other parties, all on their own.

The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday.

Mr. Awlaki, who was born in New Mexico and spent years in the United States as an imam, is in hiding in Yemen. He has been the focus of intense scrutiny since he was linked to Maj. Nidal Malik Hasan, the Army psychiatrist accused of killing 13 people at Fort Hood, Tex., in November, and then to Umar Farouk Abdulmutallab, the Nigerian man charged with trying to blow up a Detroit-bound airliner on Dec. 25.

American counterterrorism officials say Mr. Awlaki is an operative of Al Qaeda in the Arabian Peninsula, the affiliate of the terror network in Yemen and Saudi Arabia. They say they believe that he has become a recruiter for the terrorist network, feeding prospects into plots aimed at the United States and at Americans abroad, the officials said.

It is extremely rare, if not unprecedented, for an American to be approved for targeted killing, officials said. A former senior legal official in the administration of George W. Bush said he did not know of any American who was approved for targeted killing under the former president.

But the director of national intelligence, Dennis C. Blair, told a House hearing in February that such a step was possible. “We take direct actions against terrorists in the intelligence community,” he said. “If we think that direct action will involve killing an American, we get specific permission to do that.” He did not name Mr. Awlaki as a target.

The step taken against Mr. Awlaki, which occurred earlier this year, is a vivid illustration of his rise to prominence in the constellation of terrorist leaders. But his popularity as a cleric, whose lectures on Islamic scripture have a large following among English-speaking Muslims, means any action against him could rebound against the United States in the larger ideological campaign against Al Qaeda.

The possibility that Mr. Awlaki might be added to the target list was reported by The Los Angeles Times in January, and Reuters reported on Tuesday that he was approved for capture or killing.

“The danger Awlaki poses to this country is no longer confined to words,” said an American official, who like other current and former officials interviewed for this article spoke of the classified counterterrorism measures on the condition of anonymity. “He’s gotten involved in plots.”

The official added: “The United States works, exactly as the American people expect, to overcome threats to their security, and this individual — through his own actions — has become one. Awlaki knows what he’s done, and he knows he won’t be met with handshakes and flowers. None of this should surprise anyone.”

I do not have time to comment on this now, but instead refer readers to a couple of discussions at Opinio Juris international law blog.  One is by Julian Ku, raising the basic question – but see the comments as well, including the brief comment by Kal Raustiala, author of a new and leading book, Does the Constitution Follow the Flag?, and comments from John Dehn at West Point, Jordan Paust at Houston, and Howard Gilbert as of now.

Then there is a post on a slightly different question from Kevin Jon Heller, asking about the effect in domestic law of a place where a killing might occur.  There should be some more comments to each.  I will try to get something up myself, but quite swept up in the broader targeted killing discussion, responding to journalists.  I will limit myself to noting that the legal answer is, in my view, yes – but how you get to yes differs depending upon whether you think this particular targeting is in an armed conflict in a strict legal sense, or whether you think it is an act of legitimate self-defense, as the Legal Adviser referenced in his ASIL speech.

First, the New York Times has a front page article today, looking at the impact of drones on terrorist and militant activities in Waziristan.  It is an interesting piece, not least because it acknowledges not just the effectiveness of the campaign, but the effectiveness of the Obama administration’s sharply ramped-up CIA campaign.  (HT Instapundit.)

A stepped-up campaign of American drone strikes over the past three months has battered Al Qaeda and its Pakistani and Afghan brethren in the tribal area of North Waziristan, according to a mid-ranking militant and supporters of the government there.

The strikes have cast a pall of fear over an area that was once a free zone for Al Qaeda and the Taliban, forcing militants to abandon satellite phones and large gatherings in favor of communicating by courier and moving stealthily in small groups, they said.

The drones, operated by the C.I.A., fly overhead sometimes four at a time, emitting a beelike hum virtually 24 hours a day, observing and tracking targets, then unleashing missiles on their quarry, they said.

The strikes have sharpened tensions between the local tribesmen and the militants, who have dumped bodies with signs accusing the victims of being American spies in Miram Shah, the main town in North Waziristan, they said.

The impact of the drone strikes on the militants’ operations — on freedom of movement, ability to communicate and the ease of importing new recruits to replace those who have been killed — has been difficult to divine because North Waziristan, at the nether reaches of the tribal area, is virtually sealed from the outside world.

None of those interviewed would allow their names to be used for fear for their safety, and all were interviewed separately in a city outside the tribal areas. The supporters of the government worked in positions where they had access to information about the effects of the drone campaign.

Along with that of the militant, the accounts provided a rare window on how the drones have transformed life for all in the region.

By all reports, the bombardment of North Waziristan, and to a lesser extent South Waziristan, has become fast and furious since a combined Taliban and Qaeda suicide attack on a C.I.A. base in Khost, in southern Afghanistan, in late December.

On the legal side, responses trickle in to Harold Koh’s statement about drone warfare in his American Society of International Law address.  As I’ve indicated, as someone who had been highly critical of the long wait for the US government to offer a defense of its lawfulness, I’m very pleased with the statement.  For precisely the reasons I’m pleased, of course, numbers of others are not so pleased, as Ari Shapiro, who was at the speech, noted in his story for NPR.  For a good, even-handed discussion of the Legal Adviser’s statement, see this analysis by Anthony Dworkin of Crimes of War, including the several links provided at the end.

At first sight, Koh’s justification appears to be based on the idea, familiar from the Bush administration, that the United States is engaged in a worldwide armed conflict with al-Qaeda and the Taliban and can use lethal force against anyone fighting on the other side. However a closer reading of Koh’s remarks shows that his position is not so clear-cut. Although Koh clearly refers to an ongoing armed conflict, he also offers the broader notion of self-defence as an alternative justification. This is clear when he answers the possible objection that drone strikes away from a battlefield constitute unlawful extrajudicial killing. Not so, Koh replies—a state “that is engaged in an armed conflict or in legitimate self-defence is not required to provide targets with legal process before the state may use lethal force.”

The suggestion here is that a state that is the subject of sustained threat from an armed group may use lethal force when necessary to defend the lives of its citizens, even outside the context of a recognisable armed conflict. And furthermore that this right of self-defence extends not just to targeting those individuals engaged in an imminent attack against the United States, but those members of the armed group who are integral to the group’s broader campaign of violence against US citizens.

What is striking in Koh’s speech is that the existence of an armed conflict and the broader right of self-defence are both offered as possible justifications without any attempt to delineate the boundary between the two: it is not clear how far Koh is claiming that the purported armed conflict against al-Qaeda and the Taliban extends. Does it cover military actions in Pakistan? Somalia and Yemen? The ambiguity here is consistent with the continued lack of a definitive statement from the administration about the precise legal contours of its fight against al-Qaeda, in a way that is visible as regards detention policy as well.

Koh’s suggestion that drone strikes might be justifiable as self-defence even outside a recognisable armed conflict is in line with the position of earlier US administrations, as the legal scholar Ken Anderson recently argued in an article for the Weekly Standard. But what is missing in the administration’s justification for the drone attacks is any sense of what the limits are on the use of lethal force against individuals who do not pose an immediate threat. The restrictions in the laws of armed conflict, which concern only whether the target is engaged in hostilities against the United States and the degree of harm to other civilians, do not seem adequate here.

I should add that although I do take the view that non-international armed conflict is defined by the facts of where sustained, intense, hostilities are underway – which is one reason I think the applicable legal ground in some cases is self-defense – and in that sense “geographically” limited, it is important to recognize that many in law and policy in the United States, at least, do not accept that at all.  The Wall Street Journal was one of the few major newspapers that said much editorially or as news about the speech; its editorial is here, overall praising the Koh speech:

Count us among those applauding last week for the Obama Administration’s robust defense of the use of unmanned drones for targeted strikes against al Qaeda in Iraq, Afghanistan and elsewhere. In a speech to the American Society of International Law, State Department Legal Advisor Harold Koh presented a broad assertion of the U.S. right to pursue and kill terrorists overseas, on or off an active battlefield.  In laying out the legal argument for the strikes, the former Yale Law School dean was, to put it mildly, meticulous, even fastidious.

Pushback was found, among other places, in some commentary at Huffington Post, for example, by human rights lawyer Chris Rogers:

Koh failed to address serious concerns over the U.S.’s use of drones to kill al-Qaeda and Taliban militants, and in particular the debate over strikes in Pakistan and other areas outside Afghanistan. Hopefully Koh’s remarks indicate that a fuller account of the U.S.’s legal position is forthcoming. But for now, the program remains shrouded in secrecy and Koh’s mere assertions of the program’s legality fail to provide the kind of accountability that is urgently needed.

My own assessment of the fall-out is that there is a general sense of satisfaction within the intelligence community that Dean Koh specifically distinguished armed conflict from self defense, although many in it would have preferred to see a direct reference to the CIA and the lawfulness of its role.  Those who were already critical are no more satisfied – partly, I don’t think it is snarky to say, because the issue is not really about knowing more about it, but fundamental objection to it.  Knowing more about it isn’t really the issue for the ACLU or the human rights groups or various UN officials.  Ben Wittes is right in saying that for the international soft-law community, it remains the Next Big Thing.

The discussions, which shaped classified court briefs filed this month, have centered on how broadly to define the types of terrorism suspects who may be detained without trials as wartime prisoners. The outcome of the yearlong debate could reverberate through national security policies, ranging from the number of people the United States ultimately detains to decisions about who may be lawfully selected for killing using drones.

Toward the end of the section on drone warfare in Legal Adviser Koh’s March 25, 2010 speech to ASIL is a discussion that runs to US domestic law and regulation.  For the first time in a very long time – it might be since Koh’s predecessor Abe Sofaer addressed the question in a 1989 speech – the meaning of “assassination” in US law and regulation has been addressed in an authoritative and considered way by a senior US government lawyer.  Legal Adviser Koh said with respect to “assassination”:

[S]ome have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

To refresh on the background to this.  Apart from questions of international law, the US has had a domestic ban on “assassination” in the form of an executive order that has been in place (or renewed in slightly different language) since the presidency of Gerald Ford.  In 1976, in the wake of revelations of CIA activities in the Church Committee hearings, President Ford issued EO 11905, the single relevant sentence of which read:  ”No employee of the United States Government shall engage in, or conspire to engage in, political assassination.”  President Carter reissued the order in 1978 in slightly different language in EO 12036, which read in relevant part:  ”No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”  President Reagan reissued the order in 1981 using identical language in EO 12333:  ”No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”  EO 12333 was amended by subsequent EO’s, but the specific assassination ban text remains unchanged.

That said, the term “assassination” is never defined.  Whole forests have fallen as commentators, in law reviews and elsewhere, have debated its meaning over decades, however.  Does it refer to political leaders?  To whom does it apply or not apply?  Non-state actors?  Terrorist groups?  Political leaders of states with which the United States is at war?  Military-political leaders of such states (given how frequently that is the case)?  There is little material in the record as to what was intended – and perhaps not surprisingly.  What little anecdotal information exists from the EO’s issuance in the 1970s suggests that it was intended as a way of placating Congress, and avoiding an actual statutory ban.  The EO was apparently intended to be vague and undefined, and subsequent presidents – and, note, Congresses – have found that to be a useful ambiguity in which to leave it.  It has the status of a binding executive order in domestic law – and amendable, alterable, and revocable should the President want to do it.

I’ve never understood, to be frank, the scholarly agonizing around a single sentence with a wholly undefined term in an order not, and never, codified as a statute.  It defies interpretive settlement, I would have thought, precisely because it was not designed to bear any real legal weight.  It was instead merely a declaration in vague and general terms that whatever wicked killings the CIA did that were revealed in the Church hearings, those would not happen any more, a mea culpa and promise not to do some ill-defined bad things any more.  Well and good – the CIA did some bad and wicked things – but beyond that, one is not really going to get by textual interpretation.  Unsurprisingly, much of the commentary uses the interpretive discussion as a way of launching a normative view of when and what should be acceptable in the way of targeted killing.

The essentially normative launching pad of which much of the commentary consists is reinforced by the observation that US officials did offer two senior commentaries on the meaning of the ban in the late 1980s.  One was offered by senior law of war Department of Defense lawyer Hays Parks in a 1989 memorandum of law.  The conclusion of that memorandum, with respect to the use of military forces of the Department of Defense:

Assassination constitutes an act of murder that is prohibited by international law and Executive Order 12333. The purpose of Executive Order 1233 and its predecessors was to preclude unilateral actions by individual agents or agencies against selected foreign public officials, and to establish beyond any doubt that the United States does not condone assassination as an instrument of national policy. Its intent was not to limit lawful self defense options against legitimate threats to the national security of the United States or individual U.S. citizens. Acting consistent with the Charter of the United Nations, a decision by the President to employ clandestine, low visibility or overt military force would not constitute assassination if U.S. military forces were employed against the combatant forces of another nation, a guerrilla force, or a terrorist or other organization whose actions pose a threat to the security of the United States.

This analysis (or at least this particular concluding passage) is not explicit as to whether the act in question is murder because it is assassination and therefore unlawful, or whether it is assassination because it is murder and therefore unlawful.  In 1989, then Legal Adviser to the DOS, Abraham Sofaer, made a speech at the US Army JAG school in Charlottesville, Virginia, that spoke to this underlying issue of what is the predicate, independent violation of law, murder as such or assassination on grounds independent of murder:

The meaning of the term “assassination”’ in historical context, and in the light of its usage in the laws of war, is, simply, any unlawful killing of particular individuals for political purposes … virtually all available definitions of “assassination”’ include the word “murder,”’ which in law is a word of art. Murder is a crime, the most serious form of criminal homicide. That element is the most fundamental aspect of the assassination prohibition. All criminal killing is therefore potentially subject to the prohibition.

Under no circumstances, however, should assassination be defined to include any lawful homicide. Assassination is also commonly defined as killing with a political purpose. Murders that have no political purpose or context are criminal and remain subject to punishment, but these too should not be characterized as assassinations. Other elements offered in available definitions seem superfluous or even misleading. Thus, for example, whether a killing is done “secretly”’ or “treacherously”’ and whether the person is “prominent”’ would appear to be of little or no consequence for purposes of the Executive Order. Nor should it matter that the assassin “kills in the belief that he is acting in his own private or public interest”’ or whether the action is “surprising”’ or “secret.”  The pivotal elements in terms of controlling the behavior of government officials would seem to be illegality and political purpose … the historical background of the term casts considerable light on its meaning and strongly supports a definition limited to illegal, politically motivated killing.

The assassination ban, on this reading, argues that in order to be an assassination, the killing must already be unlawful on some independent ground – because it is murder, for example, or cannot be justified under international law of self-defense.  The result is that the ban on assassination becomes coincident with killing that would be unlawful under domestic or international law in any case.  The assassination ban does not include lawful acts of self-defense.

Consider again the Koh speech on this topic.  It too emphasizes that the ban is to be understood as not including lawful self-defense:

[U]nder domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.” (Emphasis added.)

This is one of several places in which the Koh address specifically distinguishes “self-defense” from “armed conflict.”  It expresses a view that when acting in lawful self-defense (which might or might not be “armed conflict” in a specifically legal sense of that term), targeting specific high-level belligerent leaders is not (independently) unlawful, and because it is not, it thus does not constitute “assassination.”

This is very significant, for at least two reasons.  One is that this reasoning adopts, as premise about international law, that there is a distinction between self-defense and armed conflict.  This is not the only place that the speech does so.  It specifically holds out that the possibility that there can be acts of self-defense separate from acts of armed conflict (I would say, though this particular passage does not, that lawful armed conflict is a subset of lawful self-defense).

Second, more centrally:  It clarifies, by essentially restating and reaffirming a legal view of the US government. one not re-stated (at least not plainly or very often, if at all, so far as I can tell) on both self-defense in international law and assassination in domestic law, dating back to the 1980s.  If the importance of the implication of the international law premise (the self-defense premise) is clear, however, why do I suggest that the domestic law interpretation of the assassination ban is also so significant? After all, it’s merely an executive order, alterable by a president at any time.

The reason I place such significance on this domestic law interpretation is practical.  Outsiders to government like me do not have much information on the thinking during the last two decades about targeted killing and assassination, including 1990s arguments over targeting Bin Laden and others.  Certainly I am not privy to any special information.  However, there is a reference to an OLC opinion from the 1990s, referenced in the 9/11 Commission report, about concerns that in order to avoid possible violation of the assassination ban, it was necessary to conclude that Bin Laden was a combatant, and therefore a target.  Otherwise – quite apart from any international law considerations – targeting him might contravene the assassination ban.

This led, so far as an outsider like me can tell, to push the US government, as it became aware of the Al Qaeda threat in the 1990s, to regard its actions as having to satisfy the requirements of combatancy, and not to assert any genuinely independent grounds of self-defense as a basis for targeting.  As I have argued at great length elsewhere, the collapse of the use of force into a binary consisting of law enforcement or armed conflict deprived the United States of recourse to the most useful and most obvious category of use of force – self-defense at minimal, targeted, discrete levels of violence that would not constitute a genuine legal armed conflict, using covert “intelligence” actors (or at least to accept constraints arising from a legal characterization of such intelligence uses of force that had to be based around the fundamentally armed conflict framing of combatancy).  Not an armed conflict because it would not be, paradoxically, violent, or intense, or sustained enough.  Which is, after all, what covert action is supposed to be, when successfully carried out as a use of force.

I believe that the precautionary legal view that the categories had to be either law enforcement or full-on armed conflict had an inhibiting effect on the effective use of force against Al Qaeda in the 1990s.  I can’t prove it or corroborate it; I’m not an insider in any sense.  However, I was always struck by a conversation with someone who was an insider in the 1990s; when I asked, sometime around 2004, why the insistence on establishing that someone was a “combatant” for purposes of targeting, the answer was immediate – “Oh, well, if we didn’t, we might be in violation of the assassination ban.”  No reference to a violation of international law – presumably because there was no ICC or courts of Spain or Baltasar Garzon in the mid-1990s – but a very real concern about US domestic law.

I won’t try to re-explain here why in my view it matters whether one appeals to combatancy as the legal frame, in an armed conflict, or the broader category of self-defense; it is discussed at length in this article, and for that matter I have raised it on Volokh and Opinio Juris (and the international law scholar Marko Milanovic has gravely disputed the self-defense argument at EJILTalk! blog).  Given the complete acceptance among the three branches of government that the United States is in an armed conflict with Al Qaeda – so that concepts of combatancy do apply – it would have been very easy merely to say, combatants in armed conflict can be targeted under international law, and targeting them does not violate the assassination ban.  Assuming that one takes a global view of the armed conflict (which, I should say, I do not, believing, as I do, that armed conflict with a non-state actor is limited to places of active, sustained, and intense hostilities, but leave that discussion for another post), one need not get into questions of self defense as an independent and broader category of the use of force.

The fact that this speech goes beyond armed conflict to the broader category of self defense speaks to the care that went into preparing this speech – with a view in mind of the needs of future presidents, facing future threats, and responsible for the safety of the United States of America in circumstances having nothing to do with Al Qaeda.  The Legal Adviser might have stopped merely with armed conflict, taking a narrow and presentist view that all that matters is Al Qaeda today, and not presidents tomorrow.  That he did not speaks highly of his long view of the presidency.  Because the law of self defense, while relevant today particularly to the use of force by the CIA, is most relevant to presidents stretching into the future.

But returning, finally, to assassination.  Yes, in my view, it matters a lot in a practical sense that officials of the CIA and other agencies are able to go about their business with considerably less concern that, quite apart from anything else, the one sentence concerning assassination in the EO might come back to haunt them as a matter of domestic law.  It’s not the end of the matter in a lawyerly sense, of course; memos need to be written, legal opinions given, and while I’m doubtful that the text of the EO would be modified to reflect this explicitly, that would be a good thing (it is possible that all of this has already happened inside government).  A single paragraph in a public speech does not take care of things all by itself.

Still, I think the Legal Adviser’s interpretation is correct, and I think it a matter of considerable significance that it so clearly draws upon a long-standing view within the US government, but one that had fallen (if this is not too strong a characterization) into a certain desuetude, at least to those of us outside of government.  Outsiders like me – and most readers – are not fully able to appreciate just how much work, digging, and evaluation of non-public legal memos, opinions, and reasoning dating back decades must necessarily go into what appears to be a simple conclusion in a couple of sentences.  The work behind it was, I’m certain, very substantial.

There are many open questions, of course, and ways in which interpretations and legal judgments could go – but the statement on drones itself was impressively direct in what it chose to address.  So I strongly recommend reading this testimony, if you plan to, with the Legal Adviser’s text to hand.  (Below the fold is the SSRN abstract for my testimony.)

Other articles worth reading on the Koh speech?  Shane Harris’s quick take at the Atlantic is a useful one, likewise Ari Shapiro’s take at NPR (including his sense of the audience reaction at the ASIL meeting, which I was not able to attend), and I will post links to some other articles, including Peter Finn’s upcoming Washington Post piece.  In the academic blogosphere, reaction was not so enthused – although my Opinio Juris colleague Julian Ku was pleased that the Koh speech embraced the Bush rationale of armed conflict in addressing Al Qaeda terrorism, my other Opinio Juris colleague Kevin Jon Heller was not so enthused (although KJH was actually commenting on another part of the Koh address, on the ICC and the crime of aggression).  Diane Marie Amann was also not enthused.

In reading the entire speech – which ran over an hour to a packed hotel ballroom – and not just the parts related to drones, I was struck by a general, and in my view deeply important and (especially by academics like me who have never worked in government) underappreciated, question of lawyerly method, sources, methods of interpretation and grounds of authority.  Koh made this point by quoting from Walter Dellinger on his experience at OLC:

[U]nlike an academic lawyer, an executive branch attorney may have an obligation to work within a tradition of reasoned, executive branch precedent, memorialized in formal written opinions. Lawyers in the executive branch have thought and written for decades about the President’s legal authority…When lawyers who are now [in my office] begin to research an issue, they are not expected to turn to what I might have written or said in a floor discussion at a law professors’ convention. They are expected to look to the previous opinions of the Attorneys General and of heads of this office to develop and refine the executive branch’s legal positions.

I think this is important as a question of method and authority in international law as expressed by the United States as its binding obligation.  When the Legal Adviser’s office sat down to come to a view (and with, drawing on an earlier section of the speech, the extraordinarily difficult and complex task of coordinating with other agencies of government and their lawyers), in other words, it presumably looked to its own practices, opinions, internal conclusions and advice to the executive branch, and so on.  Not to outside scholarship, or at least presumably not until well down the path of interpretive authority within the internal structure of interpretation and legitimate legal authorities within the context of US government lawyering.

Like most academics, particularly when dealing with an administration with a sizable number of lawyers who come from academic communities such as my own, I certainly want to believe that Everyone Who Is Anyone is reading … my stuff.  But of course it’s not true and, more importantly, it shouldn’t be true.  Not except as very, very tertiary.  Why?  Because authority in law is partly a question of the logic, compelling or not, of the ideas and argument expressed – but its legitimacy is also partly a question of its provenance, particularly in the law of a democratic government, in which the legitimate authority of law is partly about internal logical consistency but also partly about consent of the governed.  Who said it also matters.

Abstract:
This document is written testimony submitted to the Subcommittee on National Security and Foreign Affairs, for a hearing under the general title of “Rise of the Drones: Unmanned Systems and the Future of War.” The hearing [March 23, 2010] covered military, strategic, technological, and economic issues related to unmanned aerial vehicles in military, intelligence, and civilian commercial use. This written testimony addresses certain international law and legal policy issues raised by the use of drones as a means of projecting force. It is primarily addressed to the question of the CIA campaign of drone attacks in Pakistan and beyond, rather than the use of drones as an alternative form of air support on active battlefields in, for example, Afghanistan.

The testimony defends the lawfulness of the CIA campaign of drone strikes in Pakistan and beyond, arguing that they are lawful under doctrines of self defense, and that this legal justification protects this activity even outside of their use by regular military on conventional battlefields. The testimony argues, however, that whatever legal issues are unique to drone warfare, the most important issue facing the United States over their use at this time is not drone technology as such, but instead whether, and on what grounds, their use is lawful by the civilian clandestine service, the CIA. Drone technology in effect forces onto the table serious discussion of the lawful and proper role of the CIA.

The President has tasked the CIA with the mission that it currently carries out in Pakistan – essentially, drone strikes against militants and suspected or known terrorists, but using the CIA rather than the military presumably in order to be able to preserve the formal denial that US military forces are operating inside Pakistan. The question that critics increasingly raise is whether this activity by the CIA is lawful, and in addition the standing questions about drone warfare – is it extrajudicial execution, are there obligations to seek to capture rather than kill, and others. The Obama administration has embraced the drone strategy – and in particular, it has embraced the CIA campaign because it is, as senior US leaders have said repeatedly, the only way to strike directly at the terrorists and their leadership and seek to deny them safe havens.

This testimony argues that the US government drone program through the CIA is lawful. But it notes sharply that the US government has conspicuously failed to offer a public rationale for the legality of the program – and that the program’s legitimacy is at risk of gradual erosion from the public perception that if the government will not defend its lawfulness, perhaps it is not. This testimony urges the administration and Congress directly to address this issue of vital legal policy, and specifically to address the situation of the CIA and its use of force. It briefly offers grounds of argument on which to do so, starting from the proposition of international law of self-defense as a category broader and separate from armed conflict.

(Important Note of March 26, 2010. This testimony was submitted and the subcommittee hearing held on March 23, 2010, just prior to a major address by Harold Koh, State Department Legal Adviser, to the American Society of International Law, on March 25, 2010. The Legal Adviser’s address carried a substantial discussion of drone warfare and targeted killing, offered as the “considered view” of the United States. Professor Anderson makes special note that the Legal Adviser addressed some of the core concerns of this testimony, and asks that this testimony be read in light of that speech a few days later. In particular, the Legal Adviser offered a clear and considered public legal rationale for the legality of drone strikes as carried out by the US government – one of the key criticisms that this testimony makes of the Obama administration’s legal approach to drone warfare. Professor Anderson welcomes the Legal Adviser’s statement as a very important step forward with respect to both the willingness of the US government to offer a public legal rationale as well as its general substantive content.)

First, let me praise Harold Koh for stepping up to the plate.  This is a plain, clear statement of the US view of the law and its application.  It is measured, and yet exceedingly direct.  My thanks and congratulations to the Legal Adviser for something that stands as clear opinio juris of the United States.  As someone who has been calling every more sharply for a public statement by the administration’s lawyers on targeted killing and drone warfare – most recently in a Weekly Standard article on exactly that theme, again this week in a sharply worded statement to a House subcommittee hearing, and an Ari Shapiro interview on NPR this morning recorded a a month ago – this was an enormously positive step.

Second, on the substance.  On first read, I think this is a great statement.  It addresses an armed conflict with Al Qaeda, the Taliban, and associated forces.  But it also asserts self-defense several times as an alternative.  I had been greatly concerned that the administration’s lawyers would narrowly confine the justification for targeted killing using drones to situations that would really only cover the military using them on active battlefields. But on first read, this statement does not do that at all. It appears to address situations of safe havens, for example, and indeed reasserts the traditional US view – that sovereignty and territorial integrity are important, but the US preserves its rights to go after its enemies in their safe havens.

I want a chance to go over the written text and say something much more exact.  But given how much, particularly this week on account of the Congressional testimony, my criticisms of the administration’s lawyers have been in the news, I would like to make it known as publicly as possible that, on first read, the Legal Adviser’s statement on targeted killing and drone technology is very positive, very strong, and admirably forthright.  My congratulations and thanks to the Legal Adviser.

*

I was teaching classes and unable to attend, much as I wanted to, DOS Legal Adviser Harold Koh’s keynote address at the American Society of International Law annual meeting tonight.  Shane Harris sent me along the press release from ASIL with these excerpts from Dean Koh’s address specifically on the topic of drones.  I have barely had a chance to skim this and have not seen the full text, so I will refrain from commenting at all until I’ve had a chance to read this through.  But I wanted to post this immediately for interested readers; I will now read it through and watch the video):

Koh’s wide-ranging remarks on the Obama administration’s international law policies included a specific affirmation of the administration’s approach to the use of force, including the use of unmanned aerial vehicles (UAVs), which has recently come into question by some legal experts.  Among Koh’s statements regarding the use of UAVs are the following.

“…[I]t is the considered view of this administration…that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war….As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us.  Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks….[T]his administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

-                             First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and

-                             Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

In U.S. operations against al Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.”

Responding to some recent arguments made against the use of UAVs, Koh defended the administration’s policy saying:

“[S]ome have suggested that the very use of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war.  But individuals who are part of such an armed group are belligerent and, therefore, lawful targets under international law….[S]ome have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations.  But the rules that govern targeting do not turn on the type of weapon system involved, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict – such as pilotless aircraft or so-called smart bombs – so long as they are employed in conformity with applicable laws of war….[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing.  But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.  Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise.  In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meeting.  They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law….Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations.  But under domestic law, the use of lawful weapons systems – consistent with the applicable laws of wear – for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination.’”

To view video of the relevant portion of Koh’s address to the Society, visithttp://fora.tv/v/10561.

I was particularly interested to hear in this session discussion of the many ways in which UAV technology is entering civilian fields – everything from crop dusting to monitoring schools of fish from the sky.  Someone mentioned (but I haven’t verified) that University of Nevada now offers a degree program in UAV control.   My points were fairly removed from much of the rest of the technological or military discussion, being aimed squarely at policy and legal policy concerns.  In my oral statement, I emphasized the following:

• The Obama administration has embraced drone warfare, but its lawyers have not caught up; presumably they have private concluded that the several drone warfare programs underway are legal, but it is not a good idea to keep the rationales secret.  Not, at least, with a program in Pakistan that is only a matter of official denial, not secret.  It leaves the President and operations people on down hanging out there exposed.
• The drone warfare campaign embraced most thoroughly as a strategic matter – correctly, in my view – by the senior administration officials starting with the President is not the “hot battlefield” use of drones, in which they are essentially a substitute air support weapon for a manned system.  It is, instead, the use of drones in a role unique to them, as a targeted killing mechanism for use in places far off of active battlefields.  There are some questions raised about military battlefield use of drones, but the real questions lie off the active hot battlefield – and it is these uses that are the real reason why senior Obama officials have celebrated them.
• The fundamental issue in a legal policy sense, then, is not so much drones as such – it is their use in a campaign by the CIA of targeted killing.  A better way to understand the drone debate is that this emerging technology has forced onto the table discussion of the lawful and appropriate role of the CIA, in the use of force, and in covert operations using force.  Much of the purely military discussion is interesting technically, but legally somewhat beside the point at least at this point.  A millimeter beneath the surface of the drone discussion is the question of the CIA.  This is the point of the attack on the CIA’s role as criminal made by Mary Ellen O’Connell, and also by Gary Solis in his characterization of America’s “own unlawful combatants.”
• CIA director Leon Panetta has been engaged in a vigorous public defense of the drone program of targeted killing by the CIA.  I am all in favor of it, of course – but as a friend of the program, so to speak, and happy as I am to see Panetta speak up, his defense of the CIA program is slightly beside the point.  He defends the success of the program. Leaving aside criticisms of “blowback” – easy to make, hard to prove or disprove, frankly, but leave that aside – for most of us the success of the program is not the issue.  At issue is its legality, not its success.  Or at least, to know on what basis the lawyers think it is legal.  (Which, note to the Al Jazeera interviewer yesterday following the hearing, I took great pains to distinguish – I do not question the legality of the program as such, I question which legal rationale for its legality is the right one).
• Even you believe targeted killing using drones is, as a general proposition, legal under domestic and international law, as I do, it matters what kind of legal rationale one asserts for it.  Not all lawyers would agree, to be sure, and I suspect this includes lawyers inside the administration, but in my view it matters whether one adopts an “armed conflict” justification in which, when the US targets someone in Pakistan or Yemen or Somalia or wherever, that person is determined to be a lawful target – and it doesn’t matter, for the bare legality of targeting, where he is located.  The armed conflict goes where the combatant goes.  Mumbai, Mogadishu, wherever.  I think this is wrong as a question of the laws of armed conflict, because it does not adhere to the threshold requirements of this peculiar non-international conflict with a non-state actor taking place on a global basis that the US has with Al Qaeda.  In my view, the proper legal frame is international law of self-defense – and it is what the US has traditionally viewed the exercise of these discrete uses of force by the CIA, covert or clandestine, as being anyway.
• These two legal rationales eventually lead to different legal conclusions, constraints and authority for the use of force, unless one uses very awkward legal reasoning to force these very different uses of force altogether into the same frame.  My view is that forcing CIA targeted killing in places that might range widely in the world into armed conflict rationales is bad for the CIA’s legal reasoning – and requires ever greater legal contortions to make it fit into a model of armed conflict law that is fundamentally about the overt meeting of armies and state forces, not covert ops and intelligence services using force.  I don’t think it is a stable legal view for the CIA over the long term.  Moreover, as I thought in analyzing the Bush administration’s “global war on terror” legal frame, forcing all uses of force outside of plain law enforcement into the armed conflict box of law for overt war distorts that body of law and its interpretation, too.  It isn’t about regulating covert ops and intelligence services – there was a good reason why, during all those decades before the 1990s, exceptional and extraordinary uses of force by the covert civilian services was regarded as not unlawful under international law, but not part of the law of armed conflict, either.

Part of the “framing” problem of law here is that it is not just a division of the military operations from the CIA ones, overt from covert.  The Pakistan program by the CIA is, obviously, not covert – it is an operation in formal deniability – the ability to say at least officially (US and Pakistani officials), US military forces are not operating on the ground in Pakistan.  But, as Peter Singer pointed out in yesterday’s hearing, the scale of this non-covert program is up at the level of the opening of the Kosovo air campaign in 1999 – it is up there at the level of “real” war.  It might well be that the proper legal characterization of the CIA’s role in that theater of hostilities is not “self defense” operations as I would use to characterize the CIA operations in other places, smaller, more discrete, and perhaps genuinely covert or closer to it.  Quite possibly operations in Pakistan by the CIA have to be treated as part of the armed conflict.

The point is that a “deniability operation” (if it can be called that, to distinguish from truly covert) on a large scale eventually starts to resemble “hostilities” in a legal sense and in this case eventually merges geographically into the classic hostilities situation of non-international armed conflict that spills over a border.  If that is the case, then quite possibly it should be characterized as part of a single AfPak theatre of hostilities.  With, therefore, an armed conflict rationale for activities by the CIA.

But I do not think this rationale will work for the operation that matter into the future as Islamist terror groups morph and change and seek safe haven in other places.  Nor do I think it will work for post-Al Qaeda groups.  For those, I would opt for self-defense as Abe Sofaer characterized it in 1989.  And, to be clear, if that is the rationale, it does have to remain – as Gabriella Blum noted in a Harvard symposium on this a few weeks ago – exceptional measures.

So I think it will turn out to matter quite a lot over the long term that the Obama lawyers eventually opt for the specific law of armed conflict, including its definitions and thresholds under treaty and customary law, or some customary law of self-defense.  My guess is that the administration’s lawyers will finally opt for what appears to them to be both a narrower and a superficially reassuring ground of armed conflict that allows them to say that everyone being targeted is a “combatant” in a legal sense.  Again, my own view is that this won’t work over the long run – it will degrade as a rationale for the CIA under withering attack from the soft-law community, and it will have a tendency to degrade the law of war itself as rationales suited to a body of rules about large scale, or at least overt, conflict modeled on inter-state armed conflict, continues to pressed into service in an area that is mostly about covert or clandestine operations, and which aims to avoid overt war.

Put more bluntly, as a political evaluation, I think this rationale will work so long, but just so long, as there is an Obama administration.  As a legal rationale, armed conflict as a rationale will turn out to be a legally and politically “wasting asset.”  The legal attacks on targeted killing and the use of drones therein will be developing, but won’t ripen into active claims of war crimes, and so on, at least ones that have teeth, until the Obama administration leaves office.  Like many of the Bush-era legal tools in counterterrorism, my guess is that the Obama administration will rely on them in point of fact – but not legally defend them in ways that leave them plainly and cleanly available to the next president or future administrations.

I don’t believe that it’s proper for me to editorialize on my views here, when the post is really to allow a “letter to the editor,” so I will simply post the letter below; I’m also not opening it to comments. I encourage you to read the FOIA request that Jonathan drafted on behalf of the ACLU (as well as review, if you are very ambitious, the panel discussion at Harvard – although I agree entirely (as I remarked with a similarly impromptu discussion by Harold Koh) that one should not hold people to the strict words of an impromptu panel discussion, and if Jonathan feels that I’ve played “gotcha” unfairly, then my apologies). (I am stealing time in a meeting – one of the deans will shortly glare at me, with good reason – and I will have to provide a couple of background links later, including a couple in Jonathan’s letter that I can’t reproduce at this moment.)

One thing I should add, though, is that whatever Jonathan and I do disagree about, we agree altogether on the need of the US government to offer a legal rationale for the practice.  As I said in my last post, CIA director Panetta’s assertion that the program is legal does not tell us enough to form a view.

Okay, with that, my thanks to Jonathan for taking the time to respond in so thoughtful a fashion and so advance this discussion.  (Dated March 22, 2010.)

Dear Ken,

I very much enjoyed meeting you and speaking with you at the conference last week. In case you hadn’t seen it, I thought I’d pass along this recent news item, which quotes Harold Koh saying he has conducted a legal review of the drone program and that the administration is likely to disclose its legal rationale.  In light of our conversation, I think we’ll both agree that this is a very positive development!

Also, this past weekend I came across the item you posted on Volokh debriefing the HLS conference. I also saw the recent posting about your upcoming Subcommittee testimony. Both of these postings were engaging, as usual. But in both cases you unfortunately misinterpret part of my HLS presentation and the ACLU’s position, prompting this reply, which you should feel free to post on Volokh or elsewhere.

You’re right that at the conference I made the point that drones and other remote-controlled technologies make it easier to project force anywhere in the world. As a factual matter, this seems clearly to be true. As was discussed at the conference, drones are cheap to produce, easy to use (requiring only a few months of training), and less costly to deploy than ordinary weapons systems. But the point of highlighting that fact was emphatically not to suggest that keeping troops out of harm’s way is a bad thing, or that troops should be put in danger in order to “restrain” the U.S. I didn’t make that point, and you’re incorrect to attribute it to me or to the ACLU.

So, why mention the fact that drones are easier to deploy than other weapons? The point of my presentation was transparency, and I was making the case for why basic information about the drone program should be disclosed. Remote-controlled technologies allow the U.S. to wage war without putting troops in harm’s way. Keeping troops safe is clearly a good thing. But when force is deployed primarily by remote-control, people might be less motivated, by their affinity and concern for soldiers at risk, to scrutinize what the government is doing. As such, when it comes to drone warfare, it is especially crucial to be vigilant in demanding transparency, so that the public knows what the government is doing in its name abroad.

The ACLU, the organization that I work for and represent as a lawyer, has filed a FOIA request and lawsuit in order to serve this democratic function. The ACLU is trying to facilitate the kind of public debate and discussion that is necessary and appropriate in a democracy when it comes to using lethal military force abroad. Targeting and killing specific people who are off the battlefield also raises significant civil liberties concerns – especially when the targets can include U.S. citizens, as the government has acknowledged. The public therefore has a right to the kind of basic information we’re seeking in this FOIA: the legal rationale and limits on the program, the internal oversight that ensures these methods are not abused, and the results of the program, in terms of civilian and non-civilians killed. Disclosure of this kind of information is important to satisfy the public that its government is conducting the drone campaign in a manner that is consistent with U.S. law, values, and interests. (It is also not the kind of information that should jeopardize national security if released – if it does, the government will surely withhold the documents and let us know why they can’t be released.)

That, in short, is the rationale for the ACLU’s efforts on the drone issue. As such, it is simply not the case that “the ACLU has decided to campaign on the issue of jus ad bellum, whether the US should be resorting to force and to what extent.” And let me be clear: the ACLU does not believe – nor did I express – the view 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.” Perhaps other groups make this argument. But not the ACLU.

I appreciate that in discussing complicated matters like these, it is easy to be misunderstood or to misread a person’s meaning. But because you came away with the wrong impression from my talk, and because in your recent post you again misattributed this argument to me and the ACLU, it’s important that the record be corrected.

Having said all that, I concur with you that we agree on at least two things — i.e., the need for the administration to disclose the legal rationale for the drone program, and that there are geographical limits on the IHL justification for using drone strikes. But in light of what I’ve said above, it should be clear that we agree on more than just the two points you mentioned. Like you, I deplore the loss of soldiers’ lives in combat. I have immense respect for those who choose to serve in the armed forces. Some of the sharpest and most honorable people I have met are current or former servicemembers, including among them Tad Oelstrom and Missy Cummings, our fellow presenters at the HLS conference. As such, the suggestion that I think that U.S. lives should be put at risk unnecessarily – in order to create “the proper incentives not to over-resort to the use of force” or otherwise – is repugnant. Likewise, I imagine that we share a strong concern that the people on the receiving end of U.S. weapons not be civilians, and that the military do everything it can to minimize the loss of innocent life.

In any case, I, too, thought that the conference was extremely interesting and useful. The combination of speakers and topics was very good. I am grateful to the Harvard National Security Journal for putting it on and inviting me to attend. I also enjoyed meeting and chatting with you. And I am hopeful that the next time we meet, we’ll find at least a few more things to agree on!

Best wishes,

Jonathan

–

Jonathan Manes

Legal Fellow | National Security Project

American Civil Liberties Union Foundation

• CIA director Panetta has been conducting a visible, on the front pages, PR campaign to argue that the Program That Cannot Be Acknowledged in Pakistan (and elsewhere) is every bit as successful as administration officials, from the President on down, have said.  That’s great, but somewhat beside the point.  Most of us are convinced that it is successful; the question is whether, and on what basis, the program is legal.  On that, the administration says, it’s legal but gives no clue on what basis it thinks that.  It’s gotta step up to the plate and declare itself.
• The issue on the surface is drone warfare.  But in fact, drone warfare is a set of heterogeneous activities, conducted sometimes by the military as tactical air support, and sometimes, the other extreme, CIA strikes in far away places.  The use of drones by the military on the conventional battlefield is not really very controversial, not at bottom – it is just another standoff firing platform.  The real question on the table is the role of the CIA in the use of force.  Drones can be thought of as less the issue themselves, than the technological issue that forces the role of the CIA in the use of force onto the table.  This debate is fundamentally about the CIA.
• Defending the legality of drone warfare gets you to different places depending on what legal rationale you think fits the case.  Going down the road of armed conflict will finally rule the CIA out of it, as well as limit the geographical reach of the use of drones, whether by the CIA or the military.  That is an important reason – given that the Obama presidency is foursquare behind drone strikes in places well beyond the active battlefields of Afghanistan – why the administration’s lawyers should not be giving up the US’s traditional, longstanding position that it is legitimate to use force off the hot, active, traditional battlefields in pursuit of terrorists – but that the appropriate way to understand this as a matter of law is self-defense, rather than the narrower law of armed conflict.
• Folks who buy into the currently Jane Mayeresque tropes about drone warfare removing the constraints of geography, the “natural barriers” that US forces would otherwise have to fight their way through, as the ACLU’s lawyer put it at Harvard recently, and thereby reducing the US disincentive to use violence, had better be really clear what they are saying.  Because what they are saying is that the US will have easy incentives to reach to the drone as a weapon because its servicemen and women are not sufficiently at personal risk to deter the US from using force.  That’s what you mean when you talk about “removing natural barriers” or reducing the American disincentives to violence.  You mean that not enough US personnel are at risk of getting killed.  I’d be interested to meet the US Congressperson who’d like to stand up and make that argument.

Well, this needs work, but it’s 1:00 am.

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.)

I’ve been quiet around VC in the last little while as I, too, have been writing about Predators and targeted killing – expanding and moving beyond my book chapter from last year  on this topic.  Barring some big news on health care or some such, the Weekly Standard will be running a piece from me next week arguing something I’ve developed here at VC and at Opinio Juris blog:  first, that the administration’s lawyers need to step up to the plate and defend targeted killing using Predators and, second, the proper legal basis on which to defend it to the full extent undertaken by the Obama administration is the international law of self-defense, rather than simply the law of armed conflict, targeting combatants.

In another piece coming soon (this one a book chapter in a Hoover Institution online collection of essays from the Hoover Task Force on National Security and Law), I will be arguing a further step in this – one which relates to Rittgers WSJ op-ed.  Underlying much of the argument over drone warfare is a submerged factual and normative frame about who, what, and where.  Rittgers, for example, is drawing upon his extensive experience as a Special Forces officer, and reserve judge advocate, with three tours in Afghanistan, to point out that it is a mistake and really not possible to micromanage military operations in the field.  Nor is the use of a missile fired from a drone in battle significantly different from a missile fired from a manned aircraft, or a helicopter, or some other place.

Critics who call the practice extrajudicial execution, however, are frequently focused upon another scenario.  The version of it furthest from the hot battlefield scenario is a CIA directed drone missile strike upon a target in a compound far away from any theatre of active fighting, such as AfPak – someone in Yemen or Somalia, to take the obvious examples.  From the critics’ standpoint, it is a bit of bait and switch to defend drone missile attacks on the basis of their use on a hot, active battlefield, or even in a general theatre of conflict – for which, the critic will note, one might or might not include the “Pak” part of “AfPak” – and then turn around and say, therefore, a CIA attack in Somalia is similarly okay.  From the critics’ view, even if the theatre of conflict use by uniformed military is okay on traditional military targeting terms (and for the human rights monitors, it likely is not – or, more precisely, permissible in principle, but somehow not in any particular circumstances), that is not the same as the CIA’s global reach.  From the critics’ point of view, that is, what goes on operationally at ground level in Afghanistan somewhat misses the point.  From my view, too, what needs to be defended as legal policy by the United States is not principally that use of drone attacks – that is not at that point so much questioned, although perhaps I am too sanguine about it – but instead the CIA, covert action as a category, and targeted killing outside of the traditionally understood idea of  a zone of armed conflict.

This is one of the reasons that I regard the proper legal basis for Predator targeted killing to be the law of self-defense – it is what the Obama administration really intends, if it is not to fall back into the idea of a “global” war on terror, and yet also intends to preserve the traditional sovereign legal right to strike at non-state actor terrorists in their safe havens, if the relevant state cannot or will not deal with them.  The President and Vice President have said repeatedly – and in so doing, merely re-stating what ever president has asserted since transnational terrorism rose as a threat to Americans – that the US will take the fight to the terrorists, and pointedly said wherever that is and that terrorists will not be allowed safe haven, and that the US will strike on the basis of the terrorists’ intentions.  Nothing new in that, but the legal basis for the United States to do so is different from the legal basis on which it is lawful to use drones and missiles from drones in a theatre of active armed conflict.

The legal, normative, and moral arguments over drones, then, are not so much about hot battlefields, nor even largely about theatres of active armed conflict.  The arguments are about the use of drones and targeted killing by the covert services, the CIA, beyond those confines.  Understood that way, this is about drone warfare as a form of strategic airpower.  The attempt to dominate from the air on a global, or at least potentially extensive geographic, basis using unmanned airpower.  Not all of this is about counterterrorism or the use of smaller and more discriminating, person-specific weaponry.  The Israelis officially unveiled their massive, airliner sized drone aircraft, the purpose of which is presumably to be able to strike at nuclear facilities in Iran – not about targeted killing, but the classic projection of strategic airpower.

Again, one way of understanding the strategic frame is as strategic airpower – leveraging military capital over labor through drones, with the intention of developing a counter-raiding capability that extends over an ever greater geographic range, whether for large-weaponry anti-facility attacks or small-scale anti-individual targeted killing.  Strategic airpower has long been a holy grail – but it has never worked quite as successfully as each new iteration hopes.  The “light footprint” strategy based around counterterrorism, over the horizon drones and missiles, might or might not be a winning strategy; it might be, rather, that counterinsurgency through boots on the ground and denial of territory for safe havens is required, as many have believed in any sustained guerrilla conflict.  I don’t know the answer to that question; the administration’s long delay in determining its Afghanistan strategy was presumably, at the most abstract level, about answering exactly that.  What is clear is that whether pure counterterrorism without on-the-ground counterinsurgency, or counterinsurgency to control territory and population, drones are going to be important.

Put another way, particularly as they are used outside of the active counterinsurgency theatre of AfPak, drones, with sophisticated surveillance gear but also missiles, act as the lightest of light cavalry.  They probe, surveil, and engage in pinprick attacks, behind enemy lines, far beyond one’s own lines.  When the CIA engages in targeted killing against some Al Qaeda operative in Somalia, from a strategic perspective, it is a combat raiding strategy by very light cavalry indeed.  But it is so far beyond one’s own lines, as it were, that from a legal standpoint, I would place it beyond the legal “armed conflict” altogether and treat this combat raiding use of force, as a matter of law, as an exercise in lawful self-defense.

But this will get discussed (in numbing detail, I’m afraid) in the Weekly Standard piece.  How’s this for my proposed title – likely to be shot down – Predators over Pakistan, Lawyers over Langley?  :)