Legality of Drone Warfare or Illegality of Drone Assassination?

Law professor Harold Koh, a former Yale Law School Dean and former Legal Adviser to Hillary Clinton’s State Department, hired by NYU to teach human rights and international law, recently found himself in the crosshairs when NYU law students posted a “statement of no confidence” in him based on the prior actions he undertook to justify, enable and expand the use of Obama’s “extrajudicial killing program.”

A harsh critic of the Bush Administration, Koh is obviously well liked among those who consider themselves in the liberal legal intelligentsia. Unfortunately, instead of defending Koh’s legal rationales for drone killing on the merits, a number of these law professors, led by Koh’s cronies at the State Department, pilloried the NYU students, defending and praising Koh on mostly personal grounds, or for his other legal contributions, almost entirely avoiding discussion of the issues surrounding US’ high tech targeted killing. However, at least two respected law professors, Fionnuala Ní Aoláin (at University of Minnesota Law School) and Philip Alston (Professor of Law at New York University Law School, and former UN Special Rapporteur on extrajudicial executions, 2004-10) criticized their fellow academics’ glossing-over approach since “one can reasonably take the position that the US government and its targeted killing programs breach international and human rights law standards.” Both lamented their fellow professors’ avoidance of discussing the important issues and sending “a real chill to an important open debate.”

In our op-ed (below) published April 29, 2015 by the Brainerd Dispatch newspaper (which built upon a related one we wrote in 2012), Robin Hensel and I decided, by contrast, to focus on the illegality of the US’ new high tech “warfare.” Brainerd is not far from Camp Ripley National Guard base in Minnesota that trains military personnel on the “Shadow” and other smaller drones that started out being used for surveillance but have now become weaponized. Naturally our comments attracted some dissent, a substantive critique coming from Attorney Larry Frost of Paladin Law PLLC, Bloomington, MN, which in furtherance of a robust debate, I’m reposting directly below our piece with Mr. Frost’s permission.

Guest Opinion: The illegality of high tech war
By Robin Hensel and Coleen Rowley on Apr 29, 2015

Why has the United Nations Special Rapporteur called drone strikes extrajudicial killing?

Why has a Pakistani judge recently filed criminal charges against a former top CIA lawyer who oversaw its drone program and a former station chief in Islamabad over a 2009 strike that killed two people? The Islamabad High Court ruled CIA officials must face charges including murder, conspiracy, waging war against Pakistan and terrorism.

Why is a case being heard in May against the German government on behalf of three Yemeni survivors of a U.S. drone strike? The lawsuit argues it is illegal for the German government to allow the U.S. air base at Ramstein to be used for drone murders abroad, especially after the passage of a resolution in the European Parliament in February 2014 urging European nations to “oppose and ban the practice of extrajudicial targeted killings” and to “ensure that Member States, in conformity with their legal obligations, do not perpetrate unlawful targeted killings or facilitate such killings by other states.”

Why have Sicilians been protesting construction – which in 2013 led to the President of the Region of Sicily temporarily revoking construction authorization – of a US Navy base in their desert which would house Lockheed Martin’s new satellite communications system? Part of the effort to automate war, to entrust the choice of targets to machines, a principal function of the system would be to remotely pilot drones all over the world, ultimately reaching the North Pole.

Closer to home, why have protests arisen of Camp Ripley’s drone training? When Col. St. Sauver, the commander at Camp Ripley, weighed in on the beginning controversy in September 2012, he lauded unmanned aircraft systems (UAS) as being used “to increase efficiency, save money, enhance safety and even save lives.” He hit all the Pentagon talking points. The smaller “Shadow” drones at Camp Ripley were initially used to conduct surveillance and identify people (targets) for the lethal punch of the larger “Reaper” and “Predators.” The smaller drones then served merely as an accomplice in the illegal drone assassination program, also termed President Obama’s “Disposition Matrix” kill list.

The goal of the U.S. State Department was, however, to arm the Shadows with guided bombs weighing under 25 pounds. Cleared for treaty compliance in 2011, Raytheon successfully tested a new 5 pound warhead developed for the Shadow that same year and in 2012, tested a 13 pound warhead. The Marine Corps thereafter sent armed Shadows to Afghanistan as a combat demonstration program.

As a result of this high tech trend, some military officials have become even more effusive in their praise of “federated airpower as small UAVs (like the Shadow) can be bought and operated in numbers that provide far wider battlefield coverage. … When smart networks communicate, almost brain-like systems will emerge.”

Down on earth, however, the short answer to all the questions posed above is that the law may be catching up with the stars in militarists’ eyes. While commentators generally agree UAS technology is not illegal per se (which people often confuse the drone debate as being), when and how it’s being used to extra- judicially kill in our self-declared “global war” is another story.

The following constitutes a consensus of legal opinion:

Outside a war zone, a State can legally kill only where (1) necessary to save a life, and no other option is available, or alternatively (2) it’s the result of fair judicial process [e.g., death penalty after decent adjudication].

So drones – at least those used for targeting killing – are basically not legal unless the looser “law of armed conflicts” (aka international humanitarian law, IHL) applies. IHL only governs in unique, geographically constrained and limited situations, not in a “war of choice” or a “global war.” Even under IHL, you can’t kill civilians (those not operating as forces of a warring State) unless they’re directly participating in hostilities, or in a “continuous combat function.” This may explain why the U.S. has thus far refused to provide information about its strikes. Lastly, under IHL, even if you have a valid target, you still can’t kill that target if the civilian casualties would be disproportionate to the particular objective.

A final problem with how we use our drones is more a problem of angering other nations, increasing enemies and setting bad precedent. Obviously, a foreign country does not have the right to come into the United States and kill people. The guiding document is the U.N. Charter, which doesn’t allow force against a State unless it’s self-defense, or the Security Council authorizes it. So consider if a country, take China for example, decided to someday post drones over U.S. cities and execute people when it determined that people here were fighting against it, knowing civilian casualties are to be accepted, as long as China doesn’t consider our casualties disproportionate to its military objectives.

You don’t have to be a legal expert to understand the terrifying precedent the U.S. is setting.

Robin Hensel is a free speech and peace activist in Little Falls who organizes the annual “Peace Fair” and anti-drone warfare protests there.
Coleen Rowley is a retired FBI agent in Apple Valley who served as Minneapolis Division Legal Counsel from 1990 to 2003.

Counter-argument by Attorney Larry Frost, Paladin Law PLLC, Bloomington, MN

What one ‘spikes’ – leaves out or does not report – is usually far more important than what one says. Colleen Rowley left out two very significant legal points without which the debate is not complete. That leaves us as far or farther from the truth than a complete exposition would.

First, any nation “A” that harbors forces “F” which attack state “B” has an obligation under traditional international law to stop such attacks. If it cannot, or will not stop “F”, then state B may choose either to declare war on state A, or to enter state A’s territory to attack and destroy the hostile forces “F”. The normal rules of war apply (except with respect to the forces of F, more on which in a moment). That means that if citizens of A are killed during operations against hostile forces F, nation B is not legally in the wrong (if the general rules of due care, proportionality etc are observed). So in many cases, drone attacks are legally justified. Note, state A does not have to know specifically that the target hit was there – it is enough that A knows that forces F are there and is not stopping them. If A even allows F to recruit in its territory, this law applies. This is not new law; it is in fact very old customary international law. A simplified but readable explanation can be found here.

Second, Rowley uses the term ‘war zone’. The problem is that legal definitions of war, and ‘war zone’, arose in the context of war between states. War between a state and a non-state actor (in our case terrorists, ‘terrs’) is utterly different, and very poorly covered by either traditional international law. For the terrs, the ‘war zone’ is everywhere their targets exist. If their targets are citizens of a certain state, then the terrs will attack them even in the territory of other nations. The traditional notion of ‘war zone’ simply does not even address the reality of the situation of a war against terrs.

Failing to address this issue – to change the traditional definitions of war to fit a war against global terrs – would be fatal to the civilized West if we followed traditional international law. That is unacceptable. The flip side is that mis-applying traditional law of war concepts leads to declaring the whole world a war zone – and that leads to results we don’t want. For example, establishing a precedent that China could use to attack targets in the United States – if China decided we were ideologically hostile to the Dictatorship of the Proletariat in China, for example (we are) and that constituted valid cause to attack us. In fact, China is attacking us – by computer – so this is not a foolish example.

Technical war – internet attacks and others, including EMP attacks which can be carried out by detonating high-yield nuclear weapons outside the territory of the target – also fall outside the competence of traditional and current treaty international law. When terrorists are driven by the savage, uncivilized doctrines of a seventh-century mentality, doctrine has to change to deal with that reality. And yes, current US practice is generating ill-will, and that too is a factor to consider in reshaping our policy and the law which governs it.

Attorney Frost and I actually share some agreement that US drone strikes are generating both bad politics and bad precedent internationally and that the law has not caught up with development of high tech modes of warfare. I will note, however, that following the McNutt interpretation, outlined by Frost, would allow Cuba to “legally” drone bomb Miami to target for killing those CIA-supported “Bay of Pigs” Cuban-American survivors and other anti-Castro terrorists. Cuba’s “legal” targets would certainly include Miami resident Luis Clemente Faustino Posada Carriles, a well-known terrorist and former Central Intelligence Agency (CIA) agent who was convicted in absentia of various terrorist attacks and of having brought down a Cuban airliner killing 73 innocent civilians.

The bottom line is that all law, but most importantly international law, which is sometimes called “soft law” due to its lack of formalized international police enforcement, derives its legitimacy and power from principles of reciprocity and equality, not from the double standards that Harold Koh, John Yoo and other war enablers have worked at legalizing inside and outside our government. International legal principles must therefore not only be rooted in universal Kantian ethics but must also be efficacious and pragmatic, not counterproductive as more and more research is showing is the case with US drone assassination policy that serves to promote and increase terrorism worldwide. To stand the test of time regardless of evolving technology, international law must “work” from all participants’ standpoints, not just those nations which view themselves as most militarily powerful at the moment. Unfortunately the Nuremberg Principle has largely been forgotten that wars of aggression, aka wars of choice, are the supreme crime because they encompass and lead to all other war crimes, regardless of whether utilizing low end box cutters or high end drone and satellite technology.

That is why, when examining how to fix our mistakes, as President Obama rightly urged in recently acknowledging and apologizing for the mistaken drone killing of American and Italian aid workers, he was wrong to call attention, in the same breath, to America’s exceptionalism. Setting ourselves above the law, as Nixon believed he was entitled to do domestically, will only open Pandora’s Box and establish bad legal precedents that will come back to haunt the U.S.

In May of 2002, Coleen Rowley brought some of the FBI’s pre 9/11 lapses to light and testified to the Senate Judiciary Committee about some of the endemic problems facing the FBI and the intelligence community. Rowley’s memo to FBI Director Robert Mueller in connection with the Joint Intelligence Committee’s Inquiry led to a two-year long Department of Justice Inspector General investigation. She was one of three whistleblowers chosen as persons of the year by TIME magazine. She currently works with the Veterans for Peace chapter in Minneapolis, Minnesota.

Reprinted from Huffington Post with permission from the author.

Author: Coleen Rowley

Coleen Rowley, a FBI special agent for almost 24 years, was legal counsel to the FBI Field Office in Minneapolis from 1990 to 2003. She wrote a “whistleblower” memo in May 2002 and testified to the Senate Judiciary on some of the FBI’s pre-9/11 failures. She retired at the end of 2004, and now writes and speaks on ethical decision-making and balancing civil liberties with the need for effective investigation.