The pilots waging America’s undeclared drone war in Pakistan could be liable to criminal prosecution for “war crimes,” a prominent law professor told a Congressional panel Wednesday.
Harold Koh, the State Department’s top legal adviser, outlined the administration’s legal case for the robotic attacks last month. Now, some legal experts are taking turns to punch holes in Koh’s argument.
It’s part of an ongoing legal debate about the CIA and U.S. military’s lethal drone operations, which have escalated in recent months — and which have received some technological upgrades. Critics of the program, including the American Civil Liberties Union, have argued that the campaign amounts to a program of targeted killing that may violate the laws of war.
In a hearing Wednesday before the House Committee on Oversight and Government Reform’s national security and foreign affairs panel, several professors of national security law seemed open to that argument. But there are still plenty of caveats, and the risks to U.S. drone operators are at this point theoretical: Unless a judge in, say, Pakistan, wanted to issue a warrant, it doesn’t seem likely. But that’s just one of the possible legal hazards of robotic warfare.
Loyola Law School professor David Glazier, a former Navy surface warfare officer, said the pilots operating the drones from afar could — in theory — be hauled into court in the countries where the attacks occur. That’s because the CIA’s drone pilots aren’t combatants in a legal sense. “It is my opinion, as well as that of most other law-of-war scholars I know, that those who participate in hostilities without the combatant’s privilege do not violate the law of war by doing so, they simply gain no immunity from domestic laws,” he said.
“Under this view CIA drone pilots are liable to prosecution under the law of any jurisdiction where attacks occur for any injuries, deaths or property damage they cause,” Glazier continued. “But under the legal theories adopted by our government in prosecuting Guantánamo detainees, these CIA officers as well as any higher-level government officials who have authorized or directed their attacks are committing war crimes.”
The drones themselves are a lawful tool of war; “In fact, the ability of the drones to engage in a higher level of precision and to discriminate more carefully between military and civilian targets than has existed in the past actually suggests that they’re preferable to many older weapons,” Glazier added. But employing CIA personnel to carry out those armed attacks, he concluded, “clearly fall outside the scope of permissible conduct and ought to be reconsidered, particularly as the United States seeks to prosecute members of its adversaries for generally similar conduct.”
Drone attacks haven’t just become the primary weapon in the American bid to wipe out Al Qaeda and affiliated terrorist networks. “Very frankly, it’s the only game in town in terms of confronting or trying to disrupt the al Qaeda leadership,” CIA director Leon Panetta said.
But that “embrace of the Predator program has occurred with remarkably little public discussion, given that it represents a radical new and geographically unbounded use of state-sanctioned lethal force,” The New Yorker’s Jane Mayer recently observed. Before 9/11, the American government regularly condemned Israel for taking out individual terrorists. “Seven years later, there is no longer any doubt that targeted killing has become official U.S. policy.”
The U.S. government has since defended the strikes as legitimate self-defense — without going into details about the operations. Kenneth Anderson, an American University law professor, said the government’s reluctance to talk about the missions — as well as its reliance on an intelligence agency to carry out military action — raises some serious questions.
In his prepared statement (.pdf), Anderson said Koh “nowhere mentions the CIA by name in his defense of drone operations. It is, of course, what is plainly intended when speaking of self-defense separate from armed conflict. One understands the hesitation of senior lawyers to name the CIA’s use of drones as lawful when the official position of the U.S. government, despite everything, is still not to confirm or deny the CIA’s operations.”
What’s more, Anderson argued, Congress has been reluctant to talk about the bigger policy issue: Why this is a CIA mission in the first place. “Why should the CIA, or any other civilian agency, ever use force (leaving aside conventional law enforcement)?” he said. “Even granting the existence of self-defense as a legal category, why ever have force used by anyone other than the uniformed military?”
Mary Ellen O’Connell, professor of law at the University of Notre Dame, was much more blunt in her statement. “Combat drones are battlefield weapons,” she told the panel. “They fire missiles or drop bombs capable of inflicting very serious damage. Drones are not lawful for use outside combat zones. Outside such zones, police are the proper law enforcement agents, and police are generally required to warn before using lethal force.”
“Restricting drones to the battlefield is the most important single rule governing their use, O’Connell continued. “Yet, the United States is failing to follow it more often than not.”
Not all of the law professors testifying today agreed. Syracuse University’s William Banks, for one, said that “the intelligence laws permit the president broad discretion to utilize the nation’s intelligence agencies to carry out national security operations, implicitly including targeted killing.” Current U.S. laws “supply adequate - albeit not well articulated or understood - legal authority for these drone strikes.”
But American laws may not be on the only ones applicable to drone strikes, critics contend. As Anderson argued, the United States may face legal challenges from what he called the “international-law community” – nongovernmental organizations, international bodies, U.N. agencies and others who view this as a program of targeted killing that falls outside the bounds of armed conflict.
Either way, this hearing will not end the controversy. As we’ve noted here before, the government has been less than forthcoming about who, exactly, authorizes drone strikes, how the targets are chosen and how many civilians may have been inadvertently killed.
– Nathan Hodge and Noah Shachtman