Drone Warfare Subcommittee Testimony, Up at SSRN

After getting a number of email requests for this testimony, I’ve posted it up for convenience at SSRN, although it is also available through the hearing page as well.  I submitted along with it my earlier Weekly Standard article, Predators Over Pakistan.  As I have said here earlier, however, this hearing on March 23 came just ahead of Legal Adviser Harold Koh’s March 25, 2010 ASIL speech.  Dean Koh’s speech addressed many of the criticisms made of administration policy on drones, and I should add, in ways that I thought substantively correct as a matter of legal policy.  I thought the Legal Adviser’s statement strong, clear, and substantively excellent.  Overall, I was pleased with the form and direction of its legal framework (if you look at the second half of the Predators Over Pakistan article, the more legally oriented part, you will see that my analysis tracks certain parts of the Koh speech analysis fairly closely).   I was also impressed with its directness – it was not filled with careful dodges and lawyerly hedges that would make it impossible to find a clear takeaway, quite the contrary.

There are many open questions, of course, and ways in which interpretations and legal judgments could go – but the statement on drones itself was impressively direct in what it chose to address.  So I strongly recommend reading this testimony, if you plan to, with the Legal Adviser’s text to hand.  (Below the fold is the SSRN abstract for my testimony.)

Other articles worth reading on the Koh speech?  Shane Harris’s quick take at the Atlantic is a useful one, likewise Ari Shapiro’s take at NPR (including his sense of the audience reaction at the ASIL meeting, which I was not able to attend), and I will post links to some other articles, including Peter Finn’s upcoming Washington Post piece.  In the academic blogosphere, reaction was not so enthused – although my Opinio Juris colleague Julian Ku was pleased that the Koh speech embraced the Bush rationale of armed conflict in addressing Al Qaeda terrorism, my other Opinio Juris colleague Kevin Jon Heller was not so enthused (although KJH was actually commenting on another part of the Koh address, on the ICC and the crime of aggression).  Diane Marie Amann was also not enthused.

In reading the entire speech – which ran over an hour to a packed hotel ballroom – and not just the parts related to drones, I was struck by a general, and in my view deeply important and (especially by academics like me who have never worked in government) underappreciated, question of lawyerly method, sources, methods of interpretation and grounds of authority.  Koh made this point by quoting from Walter Dellinger on his experience at OLC:

[U]nlike an academic lawyer, an executive branch attorney may have an obligation to work within a tradition of reasoned, executive branch precedent, memorialized in formal written opinions. Lawyers in the executive branch have thought and written for decades about the President’s legal authority…When lawyers who are now [in my office] begin to research an issue, they are not expected to turn to what I might have written or said in a floor discussion at a law professors’ convention. They are expected to look to the previous opinions of the Attorneys General and of heads of this office to develop and refine the executive branch’s legal positions.

I think this is important as a question of method and authority in international law as expressed by the United States as its binding obligation.  When the Legal Adviser’s office sat down to come to a view (and with, drawing on an earlier section of the speech, the extraordinarily difficult and complex task of coordinating with other agencies of government and their lawyers), in other words, it presumably looked to its own practices, opinions, internal conclusions and advice to the executive branch, and so on.  Not to outside scholarship, or at least presumably not until well down the path of interpretive authority within the internal structure of interpretation and legitimate legal authorities within the context of US government lawyering.

Like most academics, particularly when dealing with an administration with a sizable number of lawyers who come from academic communities such as my own, I certainly want to believe that Everyone Who Is Anyone is reading … my stuff.  But of course it’s not true and, more importantly, it shouldn’t be true.  Not except as very, very tertiary.  Why?  Because authority in law is partly a question of the logic, compelling or not, of the ideas and argument expressed – but its legitimacy is also partly a question of its provenance, particularly in the law of a democratic government, in which the legitimate authority of law is partly about internal logical consistency but also partly about consent of the governed.  Who said it also matters.

Abstract:
This document is written testimony submitted to the Subcommittee on National Security and Foreign Affairs, for a hearing under the general title of “Rise of the Drones: Unmanned Systems and the Future of War.” The hearing [March 23, 2010] covered military, strategic, technological, and economic issues related to unmanned aerial vehicles in military, intelligence, and civilian commercial use. This written testimony addresses certain international law and legal policy issues raised by the use of drones as a means of projecting force. It is primarily addressed to the question of the CIA campaign of drone attacks in Pakistan and beyond, rather than the use of drones as an alternative form of air support on active battlefields in, for example, Afghanistan.

The testimony defends the lawfulness of the CIA campaign of drone strikes in Pakistan and beyond, arguing that they are lawful under doctrines of self defense, and that this legal justification protects this activity even outside of their use by regular military on conventional battlefields. The testimony argues, however, that whatever legal issues are unique to drone warfare, the most important issue facing the United States over their use at this time is not drone technology as such, but instead whether, and on what grounds, their use is lawful by the civilian clandestine service, the CIA. Drone technology in effect forces onto the table serious discussion of the lawful and proper role of the CIA.

The President has tasked the CIA with the mission that it currently carries out in Pakistan – essentially, drone strikes against militants and suspected or known terrorists, but using the CIA rather than the military presumably in order to be able to preserve the formal denial that US military forces are operating inside Pakistan. The question that critics increasingly raise is whether this activity by the CIA is lawful, and in addition the standing questions about drone warfare – is it extrajudicial execution, are there obligations to seek to capture rather than kill, and others. The Obama administration has embraced the drone strategy – and in particular, it has embraced the CIA campaign because it is, as senior US leaders have said repeatedly, the only way to strike directly at the terrorists and their leadership and seek to deny them safe havens.

This testimony argues that the US government drone program through the CIA is lawful. But it notes sharply that the US government has conspicuously failed to offer a public rationale for the legality of the program – and that the program’s legitimacy is at risk of gradual erosion from the public perception that if the government will not defend its lawfulness, perhaps it is not. This testimony urges the administration and Congress directly to address this issue of vital legal policy, and specifically to address the situation of the CIA and its use of force. It briefly offers grounds of argument on which to do so, starting from the proposition of international law of self-defense as a category broader and separate from armed conflict.

(Important Note of March 26, 2010. This testimony was submitted and the subcommittee hearing held on March 23, 2010, just prior to a major address by Harold Koh, State Department Legal Adviser, to the American Society of International Law, on March 25, 2010. The Legal Adviser’s address carried a substantial discussion of drone warfare and targeted killing, offered as the “considered view” of the United States. Professor Anderson makes special note that the Legal Adviser addressed some of the core concerns of this testimony, and asks that this testimony be read in light of that speech a few days later. In particular, the Legal Adviser offered a clear and considered public legal rationale for the legality of drone strikes as carried out by the US government – one of the key criticisms that this testimony makes of the Obama administration’s legal approach to drone warfare. Professor Anderson welcomes the Legal Adviser’s statement as a very important step forward with respect to both the willingness of the US government to offer a public legal rationale as well as its general substantive content.)