Military justice practitioners with even a passing interest in law of war violations should read the National Journal’s January two part article on the legality of US drone attacks (Part 1 and 2 linked here) and the article “Targeted Killing in US Coiunterterrorism Strategy and Law by AU-WCL Prof. Kenneth Anderson, avaialble from SSRN here. These articles raise fundamental questions about whether drone strikes outside of the battlefield, in places like Pakistan or even Yemen, can be justified under international law and the law of war.

In response to these critiques, State Department legal adviser, Harold Koh, recently outlined the current administration’s legal justification for the drone strikes at the American Society of International law dinner on March 25, 2010, see ASIL press release here, and Prof. Anderson’s reporting of the speech at Volokh, here, and link to the video here. The gist of the argument is that:

[I]n this ongoing armed conflict [with Al Qaeda], 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. . . .

Mr. Koh’s remarks suggest that the US justification for CIA drone attacks is self defense based and not solely armed conflict based.  This distinction leads back to an earlier policy discussion about pre-emptive self defense and questions about (a) what level of threat does a terrorist need be before self defense is triggered, (b) does the US need to request permission from the sovereign nation before executing the drone strike, and other questions.  Mr. Koh briefly addressed some of these issues stating that there were three elements related to “situational considerations” that the CIA uses when determining targets for drone attacks, including “imminence of the threat, sovereignty of other States involved, and willingness and ability of those States to suppress the threat the target poses.”  See Int’l Law Blog (from Inside Justice) coverage here.

Notably some members of the EU do  not share the US’s broad view of the scope of the battlefield or the right of self defense, and as Prof. Anderson noted over at Volokh, here, not everyone is satisfied with the justificaiton given by Mr. Koh. 

Here is where MilJus comes in.  In addition to raising int’l law issues about the CIA drone program, I think the policy raises fascinating issues about the potential criminal liability of US servicemembers, DoD civilians, and DoD contractors involved in or supporting the DoD or CIA drone programs. For example, the discussion of the legality of drone use in Pakistan is not an academic one for DoD’s drone program as the disputed Af-Pak region doesn’t exactly have road signs welcoming Predator drones to the region.

Other common questions to the DoD and CIA drone programs have military justice implications.  For example, given the broad interpretation of enemy combatants advanced by the US, are uniformed military personnel, DoD civilians, or DoD contractors who support or assist the CIA program at risk of being classified enemy combatants?  That definition could include anyone that even touches the CIA program, which presumably is not armed conflict based in its legal justification, including the ground maintenance crew, air traffic controllers that assist in takeoff and landing, truck drivers carrying the fuel to re-fuel the drones, etc. etc. etc.  And what if a DoD drone strays into Af-Pak teritory and executes an attack otuside of the “battlefield” as defined by those nations with more restrictive views of the “battlefield”?

With respect to the CIA program, legal advisors to commanders in the CENTCOM region are probably already well versed in the issues, but are military justice practitioners? If you’ll recall last year an Air Force Colonel was convicted in Italian court for participation in an alleged rendition by the CIA, see coverage here.  In light of the potential criminal law issues raised by even passing inolvement of military personnel in the CIA operation (or mistaken use of DoD drones outside of the “battlefield”) and the ICC’s interest in US actions in Afghanistan, see coverage here, I think this issue is far from resolved after Mr. Koh’s statements.

10 Responses to “The Military Justice Implications of US Drone Strikes”

  1. EXAFJAG says:

    I will now wait for the calls from law school academia and the ABA for Mr. Koh’s disbarment for writing such an opinion.

  2. JimmyMac says:

    The problem with public discussions is that you can’t talk about such things as the United States being invited/requested to conduct such operations by the “host country”. And yes, I know what the leaders of those countries say publicly. However, I suspect they say something very different in a secure setting. Ever consider that may be one of the reasons those attorneys who do have access to those secure conversations are so certain such operations are lawful?

  3. Mike "No Man" Navarre says:

    JimmyMac: The authors of these articles readily acknowledge that what is said publicy is not everything when it comes to sovereign nation consent or the full legal background for these strikes. But, I think the detainee debate quickly shows that what is discussed in secure rooms and policies developed there that the drafters think are so certainly correct doesn;t always translate into certainty in the light of day or good policies for that matter.

  4. filet of fish says:

    Yeah? You think an opinion about this gray area is the same thing as rewriting well-settled definitions of torture from whole cloth? Sure about that?

  5. EXAFJAG says:

    Yep. And I’m pretty sure there are no “well-settled definitions of torture” any more than there are well-settled definitions of unlawful use of force in this context.
    Or, to put it more directly, your rhetorical questions (and their explicit assumptions) prove my point.

  6. filet of fish says:

    Point is, drones are new and the legal question is undecided. Waterboarding, putting people in small boxes with insects, wall-standing and sleep deprivation are old and should have been called what they are. Still want to equate Koh with Yoo?

  7. Dew_Process says:

    EXAFJAG: Two things: First, while you may be “pretty sure,” you are wrong. The 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, contains the “well-settled definition()of torture” in Article 1, Par.1: “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed….” The US ratified that. The US Congress provided this definition in 18 USC 2340(1): ““torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control….” That’s pretty well-settled as well.

    Second, unlike Mr. Yoo, Mr. Koh has express Congressional authority to rely upon, to wit, the 18 SEP 01 AUMF, which provides: “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

    Mr. Koh FYI, prior to being confirmed for his current position, was the Dean of Yale Law School, and a recognized expert in international law.

    DISCLAIMER: Then Dean Koh, represented BrigGen David Brahms, Rear Adm. Don Guter, Rear Adm. John Hutson, Prof. Steve Saltzburg, myself and others as Amici Curiae at SCOTUS in the Hamdi v. Rumsfeld case.

  8. EXAFJAG says:

    Dew_Process–Your certainty on this point is simply the product of your political persuasion.
    The term “severe pain or suffering” is open to a myriad interpretations. Some of us who have been through waterboarding as part of training do not believe it meets that definition any more than being immersed in an ice bath, deprived of sleep, or being physically threatened with assault (again, all part of US SERE training). If you have a specific citation that precluded the conduct at issue at the time it was authorized, please enlighten me.
    Moreover, the express congressional authority that you cite above would seem to authorize the interrogation techniques under discussion, as well as virtually any act that the president would care to authorize.
    The argument that drones are “new” is simply silly. They are under immediate and direct control of a US operator, who is making a decision to engage a target comparable to that of an Apache attack helicopter pilot, or an F-16 pilot.

  9. Dew_Process says:

    EXAFJAG: My certainty has nothing to do with politics – it’s based upon the large body of jurisprudence that has evolved since the Nuremberg and Tokyo International Tribunals that evolved into the CAT as incorporated into our criminal code.

    Second, since the AUMF did not repeal either our ratification of the CAT or 18 USC 2340, those constraints must apply to the interpretation of the AUMF.

    Finally, in a life before JAG, I attended SERE – If you were waterboarded, there would be no doubt in your mind that it meets the definition of torture.

    In 1902, the Army court-martialed Major Edwin Glenn for waterboarding a Philippino insurgent – he was convicted in spite of his “necessity” defense.

    In U.S. v. Nakamura; Asano; Hata & Kita, a military tribunal convicted them in 1947 of war crimes for waterboarding US POW’s.

    And if that’s not good enough, then read U.S. v. Lee, 744 F.2d 1124 (7th Cir. 1984), which affirmed the convictions of a Texas Sheriff and 3 deputies for torturing confessions from prisoners by waterboarding them.

    For good measure, there’s an exhaustive essay by former JAG now Judge, Evan Wallach, “Drop By Drop: Forgetting the History of Water Torture in U.S. Courts,” in 45 Colum.J.Trans.L.(2007).

  10. EXAFJAG says:

    Thank you for the citations, but if this mismatch of unrelated and nonbinding material is your authority for this being a “well-settled” area of international law, then the prosecution rests. Given the wide-ranging presidential authority you approvingly cite above, and the thoughtful analysis concerning drone strikes contained in these comments, there appears to be little difference in legal certainty between these respective issues, except that one involved a Republican administration.
    I will wait, in vain I assume, for the report to Mr. Koh’s state bar association.