The National Security and Foreign Affairs Subcommittee recently held a second hearing on drones, this time focusing on the legal implications of unmanned targeting.
Witnesses included:
- Professor Kenneth Anderson, Professor, Washington College of Law, American University
- Professor Mary Ellen O’Connell, Professor, University of Notre Dame Law School
- Professor David Glazier, Professor, Loyola Law School Los Angeles
- Professor William Banks, Professor, Syracuse University College of Law
Anderson testified at the first hearing, held March 23, 2010, and he expanded his testimony to include a response to a speech delivered by Harold Koh, the Legal Advisor to the State Department, defending the lawful use of drones in the Iraq and Afghanistan conflicts. Anderson raises the legal issues between “armed conflict” verses “self-defense,” the role of the CIA, targeting of U.S. citizens and ways in which Congress can be more involved, calling for Congress to “specifically name the CIA as under the protection, so to speak, of these legal views on self-defense” and that Congress should reject the argument that the use of drones is “illegitimate, dishonorable, unlawful, or an enabler of the US to let loose its unrestrained propensity to use violence.”
Read Anderson’s complete testimony (PDF).
O’Connell’s testimony states that use of drones outside combat zones is unlawful, citing the United Nations Basic Principles for the Use of Force and Firearms by Law Enforcement Officials as setting the international legal standard by which police force is used outside combat zones. She states that the U.S. has “failed to follow these rules by using combat drones in places where no actual armed conflict was occurring or where the U.S. was not involved in the armed conflict.” She references a series of examples, including a C.I.A. drone strike in Yemen in 2002 and attacks in Somalia in 2006. She also points out that labeling terrorists as “enemy combatants” instead of “criminals” puts them in the “same category as America’s own troops on the battlefield. This move to label terrorists combatants is contrary to strong historic trends.” She concludes by saying that drone attacks in Pakistan are seen as fueling terrorism and that in order to quell it, the U.S. must distinguish itself “through commitment to the rule of law, especially by strict compliance with the rules governinglethal force.”
Read O’Connell’s complete testimony (PDF).
Testimony from Glazier, a 21-year Navy veteran, outlines rules, treaties and conventions dating back to World War II and states that some, like the “requirement to distinguish between lawful military objects of attack and protected civilian persons and objects, remain fully applicable regardless of changing circumstances and can readily be applied even to technological innovations unforeseeable at the time of the rules’ development.” He goes through a multi-part analysis that evaluates the legality of a weapons system, and points out the legal definitions of a combatant versus a civilian. He says that “failure to clearly classify our adversaries within any recognized law of war categorization” is “tantamount to declaring these adversaries to be civilians” which limits the U.S.’s ability to lawfully conduct drone strikes. He, too, points to the difference between military use of drones and the C.I.A.’s use of drones, stating that “CIA personnel are civilians, not combatants, and do not enjoy any legal right to participate in hostilities on our behalf.” This makes them “liable to prosecution under the law of any jurisdiction where attacks occur for any injuries, deaths, or property damage they cause.” He concludes by saying that even though the technology is new, “it is a mistake to assume that old law is therefore inapplicable” and that “the use of CIA personnel to conduct armed attacks clearly fall outside the scope of permissible conduct and ought to be reconsidered.”
Read Glazier’s complete testimony (PDF).
Banks focused his testimony on U.S. laws that govern C.I.A. involvement in unmanned targeting. He provides an overview of drone attacks since the start of the Afghanistan campaign in October of 2001, focusing on attacks by the C.I.A. He also cites Koh’s speech, and asks what counts as “all applicable law” in using drones for targeted attacks. He says that “where the subject is intentional, premeditated killing by the government, the need for clearly understood legal authority is paramount. After all, legal authority is what distinguishes murder from lawful policy.” He provides a summary of acts, executive orders and presidential findings, and how they pertain to drone attacks. He also discusses the same international laws that pertain to self-defense and armed conflict. He concludes by saying that “contemporary laws have not kept up with changes in the dynamics of military conflicts,” and that “Congress would do all of us an important favor by devoting attention to articulating policy and legal criteria for the use of force against non-state terrorists.”
Read Banks complete testimony (PDF).
Further reading: Complete webcast (Windows Media) of “Rise of the Drones II: Examining the Legality of Unmanned Targeting,” opening statement from Chairman John F. Tienry, Statement for the Record from the ACLU, previous hearing to air issues on the use of drones.