[LINK] Two links on the legality and ethics of drone warfare

[rfmcdonald]

The first is Ilya Somin's careful consideration about an important question re: Obama's memo authorizing drone warfare, posted at the Volokh Conspiracy. "Who decides whether a potential target qualifies as a senior operational terrorist leader, and how much evidence does he need to have? "

[I]dentifying Al Qaeda leaders is a far more difficult task than identifying enemy officers in a conventional war. Precisely because terrorists don’t wear uniforms and often don’t have a clear command structure, it’s easy to make mistakes. And where US citizens are involved, there is the danger that the government will target someone merely because that person is a political enemy of the current administration. Even if officials are acting entirely in good faith, there’s still a serious risk that innocent people will be targeted in error. The Obama memo doesn’t even consider the question of how we decide whether a potential target really is a terrorist leader or not. But that is in fact the key issue.

The problem is not an easy one. On the one hand, war cannot wait on elaborate judicial processes. And we cannot give a potential target an opportunity to contest his designation in court without tipping him off. On the other hand, it is dangerous to give the president and his subordinates unconstrained power to designate American citizens as “terrorist leaders” and then target them at will.

One possible solution is requiring officials to get advance authorization for targeting a US citizen from a specialized court, similar to the FISA Court, which authorizes intelligence surveillance warrants for spying on suspected foreign agents in the United States. The specialized court could act faster than ordinary courts do, and without warning the potential target, yet still serve as a check on unilateral executive power. In the present conflict, there are actually very few high-ranking terrorist leaders who are US citizens. Given that reality, we might even be able to have more extensive judicial process than exists under FISA. Alternatively, one can envision some kind of more extensive due process within the executive branch itself. But any internal executive process has the flaw that it could always be overriden by the president, and possibly other high-ranking executive branch officials.

Whether the decision is made with or without judicial oversight, there is an important question of burden of proof. How much evidence is enough to justify classifying you as a senior Al Qaeda leader? The administration memo doesn’t address that question either.

The second post was made by Noel Maurer at The Power and the Money. There are rules, he argues; we just never would admit to them.

Basically, the United States will use drones in any of the areas where we would use any kind of military force to advance our interests outside of war. E.g., countries (or subareas of countries) that satisfy two conditions:

They are outside the reach of a legitimate, democratic and effective government;
The open use of American force would not embarrass a government we like or damage other American interests.

E.g., the U.S. will use drones to kill people in the world’s ungoverned spaces, just like it will use the Marines or the Army or any other element of national military force. But we will not use them to kill people in Canada and we will not use them in Colombia, albeit for different reasons.

These unwritten rules, I think, are why liberals massively support the use of drones to kill Al-Qaeda members in Yemen. I was surprised to discover that self-selected viewers of the Ed Show are okay with this policy. The support is there despite the risk to foreign civilians and even when the alleged terrorists are American.

The legality is strange (in essence, even American citizens in ungoverned spaces have no rights) but not, I do not think, new.