Legal Commentary

National Journal on Targeted Killing and Predator Drone Strikes

By Kenneth Anderson

The National Journal has a two part cover story on Predator drone strikes ? required reading for those following the targeted killing and Predator drone developments, and although it is behind a subscription wall, no question that this National Journal issue is making the rounds of Washington and the agencies.  If you follow this topic, you?ll want to make sure you get a copy.

Part 1:  ?Wanted: Dead?:  With little public debate or notice, the Obama administration has significantly stepped up its targeted assassinations, by James Kitfield. Well-sourced, well-researched story on the ramping up of targeted killing by the administration.

Part 2:  Are Drone Strikes Murder?  A growing number of experts say the legal foundations for targeted drone killings are shaky at best, by Shane Harris. Harris has sought out a wide variety of legal views for this piece, and the result is the best journalist take on the legal issues involved that I?ve read.  In particular, Harris has understood several things no other journalist has (at least that I?ve seen), including the importance in this debate of the customary international law of self-defense, and the controversies over what it makes to undertake ?direct participation in hostilities? so as to make yourself a possible target.  Harris interviews a range of sources with, I guess, me on one side, and Mary Ellen O?Connell and Nils Melzer on the other.  But also John Radsan, William Banks, Matthew Waxman, and more ? and lots of NGO folks, too.  This piece gets the argument over the law better than any journalism I?ve seen, and Harris has spent lots of time interviewing experts in depth to understand what?s at stake.

Not only is use of Predator drone strikes expanding, indications are that the Air Force has been moving forward with new and more discriminating technology - the ?micro-drone? appears to be under development, according to a source indispensable for the outsider keeping up with military robotics, Wired?s Danger Room (under the fold):

The Air Force Research Laboratory set out in 2008 to build the ultimate assassination robot: a tiny, armed drone for U.S. special forces to employ in terminating ?high-value targets.? The military won?t say exactly what happened to this Project Anubis, named after a jackal-headed god of the dead in Egyptian mythology. But military budget documents note that Air Force engineers were successful in ?develop[ing] a Micro-Air Vehicle (MAV) with innovative seeker/tracking sensor algorithms that can engage maneuvering high-value targets.?

We have seen in recent years increased strikes by larger Predator and Reaper drones using Hellfire missiles against terrorist-leadership targets in Afghanistan and Pakistan. But these have three significant drawbacks.

First, you can never be quite sure of what you hit. In 2002?s notorious ?Tall Man incident,? CIA operatives unleashed a Hellfire at an individual near Zhawar Kili in Afghanistan?s Paktia province. His unusual height convinced the drone controllers that the man was Bin Laden (who stands 6 feet, 5 inches). In fact, he was merely an innocent (if overgrown) Afghan peasant.

A second problem is that the Hellfire isn?t exactly the right weapon for the mission. Originally designed as an anti-tank missile, it?s not especially agile, nor is it designed to cope with a target that might swerve or dodge at the last second (like cars and motorbikes).

And thirdly, such strikes tend to affect a number of others, as well as the intended target. It raises the risk of killing or injuring innocent bystanders. ...

The Air Force?s 2008 budget plans described the planned Project Anubis as ?a small UAV [unmanned aerial vehicle] that carries sensors, data links, and a munitions payload to engage time-sensitive fleeting targets in complex environments.? It noted that after it was developed by the Air Force Research Laboratory, Anubis would be used by Air Force Special Operations Command. The total cost was to be just over half a million dollars.

No official announcements have been made since then, and the Air Force did not return a request to comment on this story (hardly surprising for a weapon so likely to be used covertly). But the current Air Force R&D budget does mention the effort, briefly. This newer document refers to Project Anubis as a development that has already been carried out. According to the budget, $1.75 million was spent to reach the goal.

The current state of Project Anubis is unknown. It could be one of tens of thousands of military research efforts that started, made some progress and ended without a conclusion. Or Anubis could now be in the hands of Air Force Special Operations Command.

The logic of much of the legal opposition to the use of these weapons, beyond the specifics of the legal arguments in specific circumstances, as has been said to me dozens of times by leading lawyers in the human rights community, academics, and activists, is that the more discriminating the weapon and the less it risks American soldiers in its use, the greater the incentive for it to be used, thus raising the threshold of violence.  On a couple of occasions, the American military and CIA officers using these weapons have simply been described to me as ?cowards? because they hide behind their computer screens and won?t come out to fight, as it were.  I?ve responded by noting that the enemy hides behind its women and children, and won?t come out to fight, either.  But, very strikingly, the immediate riposte in every conversation of this kind is that the US military has brought this on itself by using weapons that leave the other side with no choice but to use civilian shields.

I admit, all of this reasoning in order to show why coming up with more discriminating weapons that risk American soldiers less, and which puts them under less pressure on account of personal danger to open fire, seems utterly perverse to me.  There is also something a little off-putting, to say the least, to have overly clever American law students ? in a couple of talks I?ve given on this subject ? very far indeed from war or combat, putting on their ?rational incentives? thinking caps in order to come up with a view that the optimal structure for welfare maxmizing on the battlefield was for American soldiers to have to expose themselves to fire rather than use drone technology and not put them at risk.

Full post as published by The Volokh Conspiracy on January 09, 2010 (boomark / email).