My House Testimony in “Drones II”

As Professor Philip Alston’s report as special rapporteur to the UN Human Rights Council on targeted killings, drones, CIA and military, and related issues is released today, I’ve been asked by numerous people to comment on it.  I’ve read it once, but need to finish re-reading it before I’m ready to say anything that goes to the inside of the report.  However, in preparation for the report’s release, I have posted to SSRN my testimony in the second round of House subcommittee hearings, “Drones II,” held on April 28, 2010 – an annotated version with various explanatory footnotes added.  The best way to read this testimony is alongside the other written witness submissions, as taken together they offer a good compendium of the extant expert views in the US on how to see drones and the CIA – and the CIA and its use of force is, at the end of the day, the biggest issue here.  Drone technology is best understood as a stalking horse for the question of the CIA’s use of force.  I have a rambling blog post at Opinio Juris on the background to this; it is somewhat inside international law professor baseball, however – also, the links and tags point to a long,  long series of back and forth posts at that international law blog site that fill in much background to the issue.  SSRN abstract below the fold.

Following an initial hearing on unmanned aerial vehicles (UAVs) and drone warfare by the House Subcommittee on National Security and Foreign Affairs on March 23, 2010, the Subcommittee held a second hearing, Drones II, focusing specifically on the legal issues raised by drone warfare and targeted killing. The witnesses represented a wide range of legal positions on the question of drones, the use of force, armed conflict, and the roles of the military and the CIA – Kenneth Anderson (American-Hoover), William Banks (Syracuse), David Glazier (Loyola Los Angeles), and Mary-Ellen O’Connell (Notre Dame), with written submissions by Michael Lewis (Ohio Northern) and the ACLU.

(This SSRN paper is Kenneth Anderson’s written testimony, with annotations added in footnotes. It is best read in relation to the other testimony, which taken together offers a useful compendium of the current legal-policy views of the use of drones and the respective roles of the CIA and military in their use, and the nature of armed conflict against Al Qaeda and other targets. This hearing particularly offers a useful commentary on Department of State Legal Adviser Harold Koh’s March 25, 2010 speech that included an important section defending drone warfare and emphasizing the concept of self-defense as an independent ground for the use of force outside of either law enforcement or armed conflict. Where the other witnesses’ testimony is not posted to SSRN, their statements can be found at the House Subcommittee’s webpage. Given that the hearing was called with little notice, and little time to prepare a formal written statement, I have opted to add some annotations and expansion of my views in footnotes to this SSRN version that did not appear in the original version submitted to the subcommittee; other witnesses were also operating under time pressure and so statements are not necessarily formal in an academic sense. But taken together, they represent a useful look at the range of current legal-policy positions on drones.)

Professor Anderson’s written testimony starts from the proposition that drone warfare is a technological stalking horse for deeper issues about where armed conflict takes place; who may lawfully participate and how; whether law enforcement and armed conflict exhaust the range of lawful uses of force under international law or, instead, whether self-defense offers an independent ground for using force outside of armed conflict in certain circumstances; and in practical terms the lawful role of the CIA in using force, covert or otherwise.

Anderson’s testimony defends the distinction made by the Legal Adviser regarding self-defense as a separate ground of the use of force. His testimony endorses the view that armed conflict, as a legal state of affairs, occurs only when thresholds defined by treaty and custom occur, and that these are different thresholds for interstate armed conflict and non-international armed conflict with a non-state actor (which is how the three branches of the US government have conceived the war against Al Qaeda). It thus does not define an armed conflict as legally existing only within a theatre or on a traditional battlefield, but does accept that the non-international armed conflict with Al Qaeda is defined by places where hostilities have met the thresholds for sustained and intense hostilities with armed and organized groups.

Uses of force, including drone strikes, go where the targets go, whether within the existing zone of hostilities or elsewhere, but those uses of force might or might not – depending on the level and extent of hostilities – constitute armed conflict; a drone strike might be a self-defense action simpliciter. Anderson’s position – and, it seems, the Obama administration’s position – is that uses of force, even if not necessarily in every instance the “armed conflict,” follows the participants wherever they go. But that nuanced position is neither the Bush administration’s “global” war on terror view, nor is it that armed conflict is necessarily geographically confined. The Obama administration has not introduced a novel view of the use of force against terrorists; on the contrary, it has re-invigorated the traditional US view going back at least to the 1980s and even earlier.

The testimony defends the participation of the CIA as a legal matter in the use of drones within the existing armed conflict against Al Qaeda, as well as its separate use of drones in actions that might go outside any existing armed conflict either with Al Qaeda or, in some future moment, against some currently unknown threat. There are important US policy questions regarding whether the CIA should limit itself to self-defense actions involving covert action and intelligence-driven targeted killing, and leave the use of drones in conventional, overt conflict, but its participation is lawful. CIA personnel are not “unlawful combatants” insofar as they take part in the the armed conflict; the better legal view is that they are civilians taking “direct participation in hostilities” attached to a party to an armed conflict; rather than unlawful combatants, they are instead lawful targets through their DPH, or at least would be lawful targets if their adversary had any legal rights to use force against anyone: Al Qaeda, as a terrorist organization, has no rights of belligerency to use force against anyone, even those that have made themselves otherwise lawful targets.

The testimony endorses the view of the Legal Adviser that US targeted killing through its drone program, whether in AfPak, or Pakistan proper, or elsewhere such as Yemen or Somalia or beyond, does not require that warning or process or an attempt to invite surrender be given to targets. It endorses the Obama administration’s view that it is lawful under both domestic and international law to target US citizens, under legal justifications that might be, depending upon circumstances, either a matter of targeting in armed conflict or an act of self-defense as such.

This hearing statement is frankly assertive, conclusory, and not a formal academic presentation. Taken with the other hearing statements, however, it offers a relatively compressed introduction to the range of expert legal views in the US on these important issues of drones and targeted killing.