Legal Commentary

House Subcommittee Hearing on Drone Warfare

By Kenneth Anderson

In the midst of the healthcare debate in Congress, other business does go on (sort of), including a subcommittee hearing on drone warfare, at which I?ll be testifying, along with some other experts, including the author of the seminal Wired for War, which put the issue of robotics and war squarely on the table.  I?ll post more later about my written testimony and about the process, but late tonight I?m preparing what I?m told can?t exceed four minutes of oral presentation.  Hmm.  What points can I make in four minutes?  Regular readers of my posts on the blog will not doubt think ? none.  Well, subject to revision, but so far:

• CIA director Panetta has been conducting a visible, on the front pages, PR campaign to argue that the Program That Cannot Be Acknowledged in Pakistan (and elsewhere) is every bit as successful as administration officials, from the President on down, have said.  That?s great, but somewhat beside the point.  Most of us are convinced that it is successful; the question is whether, and on what basis, the program is legal.  On that, the administration says, it?s legal but gives no clue on what basis it thinks that.  It?s gotta step up to the plate and declare itself.
• The issue on the surface is drone warfare.  But in fact, drone warfare is a set of heterogeneous activities, conducted sometimes by the military as tactical air support, and sometimes, the other extreme, CIA strikes in far away places.  The use of drones by the military on the conventional battlefield is not really very controversial, not at bottom ? it is just another standoff firing platform.  The real question on the table is the role of the CIA in the use of force.  Drones can be thought of as less the issue themselves, than the technological issue that forces the role of the CIA in the use of force onto the table.  This debate is fundamentally about the CIA.
• Defending the legality of drone warfare gets you to different places depending on what legal rationale you think fits the case.  Going down the road of armed conflict will finally rule the CIA out of it, as well as limit the geographical reach of the use of drones, whether by the CIA or the military.  That is an important reason ? given that the Obama presidency is foursquare behind drone strikes in places well beyond the active battlefields of Afghanistan ? why the administration?s lawyers should not be giving up the US?s traditional, longstanding position that it is legitimate to use force off the hot, active, traditional battlefields in pursuit of terrorists ? but that the appropriate way to understand this as a matter of law is self-defense, rather than the narrower law of armed conflict.
• Folks who buy into the currently Jane Mayeresque tropes about drone warfare removing the constraints of geography, the ?natural barriers? that US forces would otherwise have to fight their way through, as the ACLU?s lawyer put it at Harvard recently, and thereby reducing the US disincentive to use violence, had better be really clear what they are saying.  Because what they are saying is that the US will have easy incentives to reach to the drone as a weapon because its servicemen and women are not sufficiently at personal risk to deter the US from using force.  That?s what you mean when you talk about ?removing natural barriers? or reducing the American disincentives to violence.  You mean that not enough US personnel are at risk of getting killed.  I?d be interested to meet the US Congressperson who?d like to stand up and make that argument.

Well, this needs work, but it?s 1:00 am.

Full post as published by The Volokh Conspiracy on March 22, 2010 (boomark / email).