UN to look into US Drone Program, but the Biggest Victim is Democracy

The US use of armed drones in northern Pakistan, Somalia and Yemen is now being investigated by the United Nations as a human rights abuse or even a war crime.

If drones produce significant civilian casualties, their use may be a war crime. If their use constitutes a disproportionate response, it could be a war crime. If, as The Bureau of Investigative Journalism claimed, the US sometimes hits a target, waits for sympathetic locals to rush to the aid of the wounded, and then abruptly strikes again, that would definitely be a war crime. Some Pakistani observers, however, are arguing that the Pakistani government’s own aerial bombardment by helicopter gunship or warplane of the tribal belt actually produces significantly more casualties than drone strikes.

Whether or not drone strikes are being conducted in such a manner as to rise to the level of war crimes is an important issue.

The other set of important questions around armed drones are constitutional in nature. The people being targeted by the drones are not an enemy army of a state on which the US has declared war. They are suspected criminals or terrorists. But they haven’t been put on trial.

The permission by Washington and London for drones to kill people
involves a clear depriving of those individuals of their right to due process.

The US Department of Justice insists that it has the capability of trying them and determining that they are in the process of attacking the United States, thus permitting them to be killed as a form of self=defense. But that review process occurs entirely within the executive branch, violating the principle of the separation of powers. The executive is the judge, jury and executioner.

The drone program in the United States is hugely anti-democratic because the whole thing is classified. Therefore, it cannot be publicly discussed or debated with the officials behind it, who can neither confirm nor deny its very existence.

In short, the biggest innocent victim of the drones, after the noncombatant adults and children who are killed in the strike, is the United States Constitution.

63 Responses

  1. “The biggest innocent victim of the drones, after the noncombatant adults and children who are killed in the strike, is the United States Constitution.”
    But that couldn’t be, because Obama is a Constitutional professor and sworn to protecting the Constitution. Of course these drone strikes will eventually be declared extra-legal and illegitimate in the eyes of the world, but when has that had any impact on US policy or behavior? But neither my cynicism nor US policy should keep the UN from stating publicly what is a crime and who is a criminal.

    • My feelings exactly, however every American president preceding Obama has steered clear of personlly “signing off” on an extrajudicial assassination of another person.

      There was no solid proof that either JFK or LBK ever approved even the general assassination program of “Executive Action” initiated by the CIA let alone approved specific targets.

      The Kennedy administration during Operation Mongoose anti-Castro planning made great pains to include a general plan to initiate an anti-Castro exile coup d’etat of the Cuban government with any specific attempt to kill Castro himself and argue that any death of Castro would be by Cubans incident to a change of government – thus creating a fine line between a CIA assassination and an incidental death of Castro during a popular Cuban revolution.

      The admission of the Obama administration that the president has personally signed off on CIA targets is unprecedented and opens up the possibility of a war crimes investigation in which Obama could personally be targeted for potential prosecution. I chuckle over the hoopla about the Obama birth certificate controversy when Obama’s actions in possible war crimes implicate grey areas of international law in which senior officials of the CIA and Defense Department, in addition to Obama, could have personal exposure to war crimes prosecution.

      The sheer number of innocent bystanders and children killed coupled with the flimsy standards for being on the CIA “hit list” warrant serious investigation by a neutral international body.

      The key point here however is practicality – America would never allow its leadership to be prosecuted for war crimes by an international tribunal.

      • FDR personally signed off on the shoot-down of Admiral Yamamoto.

        But beyond that, your whole line of reasoning is bizarre. If a two-star general signed off on targeting an individual leader, that wouldn’t be a war crime. If the POTUS signed off on targeting, say, a military base with 1000 people on it, that wouldn’t be a war crime – but if the POTUS signs off on targeting one person, that’s a war crime?

        • FDR’s unwritten order to Secretary Henry Knox was during a time of a war declared by an Act of Congress and the Japanese admiral was a clear unifomed combantant of the enemy within a war zone with no civilians nearby.

          Even then, Robert S. McNamara has opined that the admiral’s killing constitutes a war crime.

        • FDR’s unwritten order to Secretary Henry Knox was during a time of a war declared by an Act of Congress

          Just as Obama’s have been during a time of war declared by an Act of Congress – the September 2001 AUMF.

          Yamamoto was not “within a war zone.” He was flying between islands, well behind the lines. BTW, it is perfectly legitimate to launch attacks against legitimate targets off the battlefield. That’s why countries at war try to bomb each other’s air fields and armament factories.

          with no civilians nearby.

          Civilians “nearby” has never been a standard for calling something a war crime. The standards are 1) the deliberate targeting of civilians or 2) lack of reasonable actions to protect civilians. Neither of these have anything to do with whether or not the President signed off on the orders.

    • Of course these drone strikes will eventually be declared extra-legal and illegitimate in the eyes of the world

      Really?

      Would you care to make it interesting?

      • What is with Joe and Bill, and that need the Germans also felt to make their invasion of the neutral nation of Belgium at least appear “legal,” back in August 1914, and the Japanese with respect to Manchuria and stuff? One wonders what kind of skin they have or had in the Great Game.

        For those who see the sainted AUMF and that UN resolution as nothing but a couple of minuscule pasties and frayed G-string on a fat, raddled whore of an imperial Hegelian act of pure will, as nothing but the vainest and faintest “excuse” for Doing Stupid on a grand scale, it also seems that the lingo of “Nyah, nyah, Poppa said we could do it” (and the belief system that lies, in all senses, behind it) just creates a nice misdirection and shiny object to distract from questions about, oh, actual effectiveness of “the program,” and whether the “targets” chosen actually pose any kind of threat (other than in fevered imaginations and Threat Finding Consciousnesses) that begins to be worth the effort, and the cost. In retrospect, in a somewhat parallel situation, Congress “authorized” that thing called the Vietnam War, also on specious Gulf of Tonkin grounds, and it continued to a stupid, ineffective end that we are STILL paying for. (The way this one is framed, there can never BE an “end,” of course, it goes on forever, self-generating like the War on Drugs.)

        But our apologists dodge the question of what “national interests” justify, even on economic grounds, the money and “good will” and bodies dumped into the idiocy that is the Pentagram war procurement machine “fighting the Global War On Terror” and the serial foolishness of CIA activities.

        Of course what the rest of the world thinks of us is apparently meaningless and valueless to Dronifiying Apologists. It sure looks to me like just one part of a disease state that has only one sequel, and that is not, however much they may insist and pretend, US hegemony or even increased security. Quite the contrary. Of course, some few of us get rich off all this…

        Asked here is what are the alternatives? There’s an irreducible amount of TERRORISM in the world, including stuff that “we” do in the name of short-term seeming “advantage.” (Like “getting rid of Mossadegh for the Shah, and Diem and Allende and many more “actions.”) The most effective tools and tactics against what our rulers denominate as “terrorism” have been plain old police work, and over time the kinds of national behaviors (including all the corporate parts of same) that reduce the drivers and incentives that cause and “authorize” a few people all over the planet, including within our military and State Security apparatus, to blow stuff up and kill other people.

        For those who like to hide interesting realities behind a screen of words, here’s one part of a source for you:

        Capturing and detaining a U.S. citizen, or any other human being, is not an activity DoD takes lightly. As in other armed conflicts in which our Nation has been engaged, the detention of enemy combatants serves a vitally important protective function. Equally important, however, the deliberate, conscientious, and humane manner in which we designate and detain enemy combatants reflects our values and character as a Nation. We are committed to defending the United States in accordance with our constitutional responsibilities, while preserving the constitutional rights of United States citizens.

        link to cfr.org

        Yeah, right. Makes your eyes get all misty, doesn’t it?

        • “What is with Joe and Bill…?” “One wonders what kind of skin they have or had in the Great Game.”

          It is telling, Mr. McPhee, that you apparently cannot imagine anyone having an opinion different from your own without having, or having had, “skin in the Great Game.” This represents an attitude that is either so obtuse as to be unable to envision alternative opinions, or so intolerant as to be unable to accept that anyone could rationally reach a conclusion different from your own.

    • Apparenty Juan thinks a corporate state can be a democracy. Sometime between Reagan and G W Bush the USA became a corporate state and stopped being a nation in which the people are the soveriegn.

    • Many of the responses here look at Obama’s drone attacks through the filters of US precedents. The time is coming when this will no longer suffice; US actions will be increasingly subject to international standards of justice and criminality. And, it is simply a matter of objectivityl to find out what justice is in this case: if it were another country committing these acts to an ally or to property of the United States, would we consider it a war crime? Indeed, as we did in Nuremburg.

      • US actions will be increasingly subject to international standards of justice and criminality.

        Shooting at members of a terrorist group that has committed, and continues to commit, acts of mass murder against your citizenry is as textbook an example of Article 51 self-defense as can possibly be imagined.

        • How do you KNOW the people being “shot at” are “members of a terrorist group that has committed…acts of mass murder” etc…? And could it be that this “terrorist group” looks at the U.S. as a “terrorist group” that manifestly HAS committed acts of mass murder on its own citizenry?

  2. Juan,what I would find more productive here is an exploration of the alternatives, given the situation of criminal elements that directly attack civilians with modern methods. How other than with drones do you propose to address the situation, and how would you amend the Constitution to do so?

    The situation is not defined in the Constitution since you cannot declare war against something that is not a country. The alternatives would be to use the Elastic Clause to leave the matter to the states or the people, since it is not an enumerated federal power. That would mean the battle with al-Qaeda would be properly constitutionally conducted by civilian vigilante groups or the states, for example, of Massachusetts, New York and Pennsylvania, with others free to join in, presumably. Is this what you propose?

    There are few if any precedents to what we currently face, in that prior governments with which we have warred have not used unprovoked sneak attacks on civilians as a tactic. Even the most violent organized criminals generally attack only one another, or informants. I assert that if they did engage in mass murder, there would soon be preemptive attacks upon them, using any means necessary including drones.

    Historically, the best analogy domestically would probably be the activities, for examples, of Native American tribes from the time of the Revolution onward. Some allied with the British attacked rebellious settlers during the Revolutionary War. George Washington sent troops to eliminate them and their sanctuaries ruthlessly. And of course in World War II, the Allies targeted Yamamoto for assassination and bombed cities full of civilians. All were war crimes, as Robert McNamara himself admitted.

    The alternatives to drone strikes are as follows: 1. doing nothing, 2. leaving the matter to local police and military forces, 3. sending in our own troops. One can almost certainly assume that in some cases, we are already exercising the first option at times; if we always do that, eventually we will spare someone who does murder civilians. So this remains an option but not an alternative. The second option, too, happens at times, and has its own issues. Such forces are sometimes corrupt, sometimes brutal, and sometimes operate in error. In those cases as well, civilians die, innocents are victims. Many Pakistanis, for example, perhaps a majority, prefer occasional drones to their own Army coming through.

    The third alternative also, like the first two, has a non-zero error rate. Live strikes sometimes hit the wrong place, or hit innocents along with the guilty, plus of course they incur casualties on our side. This too remains an option to be used, and was in the case of bin Laden.

    I think that the drone option in certain cases is better than any of the other three alternatives, and should not be excluded under Constitutional grounds (if the matter is one to be handled by the armed forces, the President is the constitutional commander in chief and thus authorized to act executively). The parameters would be those in which there was a clear reason to act as opposed to doing nothing, and local forces were unavailable or unreliable, and the risk of casualties on our side was not worth taking.

    With all due respect, I don’t see any better way of managing things. If you do, it is I think incumbent upon you to address the specifics and propose better alternatives, and back those up with facts and reasonable probabilities. The world abounds, unfortunately, with situations that were not anticipated by our founders in the 18th century, and that involve choosing the least undesirable of a limited number of unpleasant alternatives. Ideal solutions are available only in ideal worlds, and the only difficulty is that the latter do not exist, nor are they likely to anytime soon.

    gp

    • During WWII, bombing was notoriously inaccurate with about 97% of all missions to bomb legitimate targets failing with explosions eventually often killing innocent civilians.

      Many leftist Britons consider the RAF commander during WWII to be a war criminal. General Curtis LeMay was the youngest four-star general in U.S. history and his success during WWII in the Japanese theater of operations can be traced to his use of “area bombing” against Chinese and Japanese cities that arguably constituted war crimes. The incendiary raids over Tokyo destroyed over half the city and ravaged civilians. Both MacArthur and Nimitz felt that dropping the atomic bomb on a Japanese city violated everything they were taught as officers as proper conduct toward civilians in war.

      Very few Americans quarrel with the decisions to employ methods arguably consisting war crimes where the net gain in American lives was enormous. Hiroshima and Nagasaki may have been war crimes and so may extrajudicial assassination used by the CIA herein – but the cruel fact is that decades from now, historians may look upon Obama and John Brennan as heroes for saving thousands of American lives at the expense of some Third World natives that most of the American public could care less about.

      • “Hiroshima and Nagasaki may have been war crimes and so may extrajudicial assassination used by the CIA herein – but the cruel fact is that decades from now, historians may look upon Obama and John Brennan as heroes for saving thousands of American lives at the expense of some Third World natives that most of the American public could care less about.”

        Hiroshima and Nagasaki were not war crimes. They forced Japan to capitulate and surrender, after having attacked the US and ravaged most of East Asia. And the bombs didn’t just save many American lives, they also saved many more Japanese lives, both military and civilian, that would have been lost had an invasion of Kyushu and Honshu taken place. The estimate is that upwards of 500,000 Japanese lives would have been lost with an invasion, as opposed to the 200,000 that perished in Hiroshima and Nagasaki. And, of course, many more American lives would have been lost.

        As far as the drones, they are not targeting “Third World natives.” They are targeting Unlawful Enemy Combatants who have sworn to attack the US. That American lives may be saved by killing such Unlawful Enemy Combatants is perfectly justified under International Law, US law, and the Law of War.

    • since you cannot declare war against something that is not a country.

      Where are you getting this?

      The Constitution grants Congress the power to declare war. There is no language or even legal precedent limiting that power so that only state can be the subject of a war declaration.

      Under American Constitutional law, if the Constitution grants a body a certain power, that body is limited in the exercise of that power only by other Constitutional limits (such as the Bill of Rights), or by legislation or court ruling that draw on powers granted to, respectively, the Congress and the judiciary. Otherwise, questions about the appropriate use of that power are within the discretion of the empowered body.

    • Gp,
      I will try to give a very brief response to your question–thought I as well look forward to hearing Prof. Cole give his own answer. In my words, you essentially asked: “Aside from drones, what other choice is there?”

      Start from the rational perspective that one should minimize opposition rather than maximize it by trying to isolate those with whom one absolutely cannot avoid fighting. For every al Qua’ida member determined to wage global jihad by any available violent means, there are probably hundreds of political reformers who want democracy and thousands of angry people who see themselves as defending their homes and families against foreign invasion (that would be us). Our goal should be to marginalize and arrest those few al Qua’ida members (with military support only as a last resort) while maximizing opportunities for the rest to find security and join a peaceful political process. Over the long term, the constant and surely terrifying (to all civilians) patrolling of drones accompanied by the rain of rockets blowing up vehicles and buildings risks (ensures???) a nasty backlash. Even over the mid-term (say, the last decade of using drones), the results appear rather counter-productive. The situation in Somalia, Yemen, Iraq, Afghanistan, and Pakistan certainly don’t look like U.S. victories to me.

      For those who read French, Le Monde just carried a superb article by French political scientist Bertrande Badie (focused on Mali) that makes the argument. [I will soon put a post about this article on my blog– shadowedforest1000.wordpress.com.] Badie says much, all meriting thought, but the most troubling point he makes, goes (in my words) something like this: the process of high-tech war against these assemblages of gangs, dissidents, fundamentalists, etc. tends to promote the emergence of those who live by violence. The longer foreign military attack lasts, the greater the prominence of gangs who live by war. That is great for the military-industrial complex but very bad news for those of us who happen to enjoy calm middle-class life.

      So, avoid military destruction, encourage moderate Islamic construction of civil society (Turkey can be a key partner here), keep the U.S. in the background working on nation-building, search for positive-sum outcomes. No one says this is easy; I do say that the current approach of choosing violence as the solution is a battlefield failure (not to mention, as Prof. Cole discussed, profoundly endangering our democratic way of life).

    • It is called the end of empire! It is pretty ugly but has happened before. There are lots of precedents. What ended the British Empire? Terrorism. Look at Kenya, or Malaysia. What happened to the French Empire? Look at the final days in Algeria. The Belgians did not have a happy end in the Congo.

      How did all this terrorism end? The answer should be obvious: the end of empire.

      How will all this terrorism against American “interests” end? It will end with the end of the American Empire! More subtly, the terrorism will end when our interests are brought into closer alignment with those of the local people rather than American business interests or Israeli interests.

      You tip your prejudice with the comment “I don’t see any better way of managing things”. The Middle East is not ours to manage. They are fighting against our management. Their weapon is terrorism. That is the weapon of the weak against the strong. We don’t like it because it works. Of course what we do to them cannot be defined as terrorism, oh no! It is called “management”.

      • The Middle East is not ours to manage. They are fighting against our management. Their weapon is terrorism.

        Sometimes the far left and the right wing come together.

        The habit of attributing al Qaeda’s terrorism to the people of the Middle East collectively is a good example.

        We don’t like it because it works.

        Your objection to the 9/11 attacks and the Bali nightclub bombing is merely “it works?” That is rather appalling.

        For my part, I object to those attacks because of the massive loss of innocent human life, the same reason I object to the invasion of Iraq. YMMV.

      • “It is called the end of empire! It is pretty ugly but has happened before. There are lots of precedents. What ended the British Empire? Terrorism. Look at…Malaysia.”

        You have it exactly backward. The Malayan Emergency began in 1948, and by 1957, when the British granted Malaya independence, the communist insurgency had been largely defeated. The British were not forced to leave Malaya by terror; they first defeated terror and then left. And they left a Malaya that has prospered as a result.

    • Since the drone program is highly classified, we have no validated information on who is being targeted and why. How can you assume that we are killing people that are dedicated to harming the US when you do not know who they are?

      Based on performances in Iraq and Afghanistan, there is little reason to believe that the US intelligence services have the superb ability to identify the specific bad guys in remote locations. But then, with no public disclosure, we are just asked to assume the best intentions and outcomes.

      After we leave at the end of 2014, I presume that there will still be people left in Waziristan that mean harm to the US (perhaps motivated by the drone campaign). So if nothing has changed there, your logic would be to drone indefinitely. When can you stop?

      We’ve come along way from the day an Egyptian led group, consisting mostly of Saudis, executed a murderous attack that was planned in Germany and the US, and not financed in any way by the Taliban. Connecting the dots that lead from 9/11 to current droning in Pakistan, Somalia, and Yemen, will be a great thesis subject.

  3. “The other set of important questions around armed drones are constitutional in nature. The people being targeted by the drones are not an enemy army of a state on which the US has declared war. They are suspected criminals or terrorists. But they haven’t been put on trial.”

    The targets of the drone strikes (Al-Qaeda and its affiliated organizations) do not have to be “an enemy army of a state on which the US has declared war.” They are non-state enemies of the US who are waging war against the US. As Unlawful Enemy Combatants waging war against the US, the US has the right of self-defense, and the right to use drones (among other options) in securing self-defense.

    To call these Unlawful Enemy Combatants “criminals,” as if they had just knocked off a Seven-Eleven convenience store, is ludicrous. They are non-state enemies who have made it clear their target is the United States.

    • The U.S. is firing drones across a good portion of the globe, some of them, according to reports (Can anyone confirm or deny?) on the basis of “racial profiling.” What evidence could you possibly have that all these people are “waging war on the United States?” We are in their countries, not the other way around.

      Indeed, the core practical argument (distinct from the moral and legal argument Prof. Cole was making) against drones is precisely that the program transforms internal political dissidents into enemies of the U.S. The attitude that everyone who is not with us (defined as “submissive to us”) is against us is a dangerously self-fulfilling prophecy.

      • The U.S. is firing drones across a good portion of the globe,

        The US is firing drones in Pakistan, Yemen, and Somalia.

        some of them, according to reports (Can anyone confirm or deny?) on the basis of “racial profiling.”

        There is not the slightest evidence for this claim. If you are going to make an accusation, it falls on you to provide backup.

        • ACLU [http://www.aclu.org/blog/tag/drones]:
          “The U.S. continues to carry out illegal targeted killings in Pakistan, Yemen, Somalia, and elsewhere. The government must be held to account when it carries out such killings in violation of the Constitution and international law.”

      • “The U.S. is firing drones across a good portion of the globe”

        The US is targeting Unlawful Enemy Combatants in Pakistan, Yemen, and Somalia. If that is your idea of “a good portion of the globe,” your world map is very different from mine.

    • The targets of the drone strikes (Al-Qaeda and its affiliated organizations) do not have to be “an enemy army of a state on which the US has declared war.” They are non-state enemies of the US who are waging war against the US.

      Even more, they are non-state enemies of the US who are waging war against the US against whom Congress has declared war.

      When opponents of using force against al Qaeda harp on the (imaginary) lack of connections between, for instance, AQAP and the bin Laden/Zawahiri organization, and claim that this (alleged) distinction renders the strikes in Yemen illegal, that are implicitly acknowledging that, yes, the U.S. is allowed to use force against al Qaeda, because they were covered in the September 2001 AUMF.

      To call these Unlawful Enemy Combatants “criminals,” as if they had just knocked off a Seven-Eleven convenience store, is ludicrous.

      This argument misses the point. We use the word “criminal” to describe Charles Manson and the BTK killer, too. The distinction between a criminal and an enemy is a categorical one, not a difference in significance or badness. Many of the airplane mechanics and infantrymen the U.S. killed in 1944 were much less of a threat to us than, for instance, the Newtown shooter – and yet, the laws of war applied to what out government could do to the Germans, while domestic criminal laws applies to what the government can do to domestic mass murderers.

      • “This argument misses the point. We use the word “criminal” to describe Charles Manson and the BTK killer, too. The distinction between a criminal and an enemy is a categorical one, not a difference in significance or badness.”

        Exactly my point. To call these Unlawful Enemy Combatants “criminals” who have not even been put on trial is to dismiss the categorical difference between domestic criminals (who knock off Seven-Eleven convenience stores, for example) and the Unlawful Enemy Combatants that they actually are. I’m surprised you did not catch the categorical difference inherent in my comment.

        • Bill,

          By including the phrase “who knock off Seven-Eleven convenience stores” in your argument (instead of, for instance, mass murder), you confuse your point, and make it look like your statement is about seriousness, not status.

      • Let’s consider the people in Yemen who were the targets of US drone strikes in 2012. Can you provide evidence that they had both the intention and capability to attack the US?

        • “Let’s consider the people in Yemen who were the targets of US drone strikes in 2012. Can you provide evidence that they had both the intention and capability to attack the US?”

          I cannot, because I am not part of the targeting mechanism that determines who is an Unlawful Enemy Combatant. But those who are doing the targeting could. By the way, “attacking the US” does not mean just launching an attack against the continental US. It also covers attacking US interests worldwide, wherever they may, be they US citizens, US Embassies, US companies, etc.

    • Almost all revolutionaries are non-state actors; the current vogue term is “Unlawful Enemy Combatants”. The American Revolution was fought by non-state actors against the British Empire using non-conventional tactics. The American Revolution was fought mostly (see John Paul Jones in the Irish sea) on American soil.

      That we cannot come up with a reasonable definition of who we are fighting is an indication of our befuddlement.

      Let’s call them revolutionaries fighting in their homeland (mostly) to end foreign domination. They are fighting against empire just like we did. We have no problem defining the players in the American Revolutionary Way, why are so befuddled about who the players are in this war.

      • the current vogue term is “Unlawful Enemy Combatants”.

        This term comes from the Geneva Conventions. I didn’t realize they were either current, or in vogue.

        That we cannot come up with a reasonable definition of who we are fighting is an indication of our befuddlement.

        I agree: those of you who cannot come up with (or who pretend to be unable to come up with) a reasonable definition of who we are fighting are befuddled.

        • Joe/ Lowell:
          I think the term “Unlawful Enemy Combatant” comes to us from the brilliant legal scholars from the GW Bush Administration. As far as I can tell, it first appears in the Military Commissions Act of 2006. In my opinion, that particular piece of legislation flouts our Constitution.

          As an infantryman, and as the leading American voice on the illegality of the US Government employing Mercenaries, I have studied the Geneva and Hague Conventions, and I don’t believe any of them, or any of their Protocols Additional, use the term “Unlawful Enemy Combatant.” I welcome a citation to the contrary.

          *****

          Since you indicate that you are clear about who we are fighting in our war on terror, perhaps you could state who, succinctly ?
          Please be clear if you think that includes women and children, who make up a significant fraction of the folks we kill in drone strikes.
          Please clarify whether you believe, as our Government believes, that unidentified people who exhibit a “signature” pattern of associating with suspected terrorists thereby become legitimate targets.

          Also, at what point in the future would you say it would be safe to return to the Rule of Law ?

        • “I think the term “Unlawful Enemy Combatant” comes to us from the brilliant legal scholars from the GW Bush Administration. As far as I can tell, it first appears in the Military Commissions Act of 2006. In my opinion, that particular piece of legislation flouts our Constitution.”

          Common Article No. III of the Geneva Conventions defines Lawful Combatant for purposes of determining who should be granted treatment due prisoners of war. (Under a command structure, having rank, not targeting civilians, etc.). Those Combatants who do not meet the definition are thus Unlawful Combatants, as they do not meet the Geneva Conventions’ definition of a Lawful Combatant under Common Article No. III. Those leaders and operatives of Al-Qaida and its affiliated organizations (AQAP, AQIM, etc.) who are planning and executing attempts to attack the US and US interests are thus “Unlawful Enemy Combatants.”

          Regarding the Military Commissions Act of 2006, you are certainly welcome to your opinion, but until the Supreme Court rules otherwise, the Act does not “flout our Constitution.”

          “Also, at what point in the future would you say it would be safe to return to the Rule of Law?”

          The question is moot, as the US Government is operating under the rule of law in carrying out its Counter-Terrorism program.

        • Brian,

          The Bush administration did not invent that designation. It was their usage of it that was notable – who they applied it to, and what they determined we were allowed to do with people who fit it. The Geneva Conventions themselves discuss the difference between legal and illegal combatants, also called “protected persons” and “non-protected persons.”

          Since you indicate that you are clear about who we are fighting in our war on terror, perhaps you could state who, succinctly ?

          Al Qaeda and their allies. That was easy. I just don’t understand why people think that playing dumb is an effective rhetorical technique. In may experience, it just makes you look dumb, or dishonest, depending on well you play.

          “As an infantryman,” you know that people are accidently killed in wars, and that this does not mean that those people who were accidently killed were considered the enemy. During the Normandy campaign, ten thousand French civilians were killed. Do you think the United States was deliberately waging war on the population of France? Of course you don’t – you’re just playing dumb.

          Please clarify whether you believe, as our Government believes, that unidentified people who exhibit a “signature” pattern of associating with suspected terrorists thereby become legitimate targets. Like every nation that has ever fought a war, we are targeting people whose names we do not know, based on their actions working on behalf of enemy forces.

          Oh, and we’re operating under the rule of law right now. Merely referencing very smart-sounding phrases like “rule of law” and “war crimes” without providing any reasoning of evidence isn’t an argument; it’s just using a fifty-cent word to try to dress up a weak position, like so much red-white-and-blue crepe paper hung in a shabby American Legion hall.

        • “As an infantryman, and as the leading American voice on the illegality of the US Government employing Mercenaries”

          That you were an infantryman is admirable, and that you consider yourself to be “the leading American voice on the illegality of the US Government employing Mercenaries” is interesting. Can you provide citations or articles designating you as “the leading American voice on the illegality of the US Government employing Mercenaries”? Or is the designation self-selected?

          How does either attribute qualify you, anymore than anyone else, as an expert in parsing and interpreting the Geneva Conventions? I’m not suggesting you are not an expert, but your flaunting of your perceived credentials suggests that you think they add something to your voice that others who have read and digested the Conventions lack, and thus their understanding will be inferior to yours.

  4. All that is fine Dr. C.
    However, the main point here is DECENCY: Trespassing is bad, let alone when its purpose is to kill the neighbors and to destroy their property.

  5. The drone report is due “next autumn.” Ho hum
    It’s akin to waiting for Obamacare and an Afghanistan withdrawal. War is like diamonds — forever.

  6. “The parameters would be those in which there was a clear reason to act as opposed to doing nothing, and local forces were unavailable or unreliable, and the risk of casualties on our side was not worth taking.”

    If the risk of casualties to our side is not worth taking how can the killings be justified?

  7. “To call these Unlawful Enemy Combatants “criminals,” as if they had just knocked off a Seven-Eleven convenience store, is ludicrous. They are non-state enemies who have made it clear their target is the United States.”

    Talk about ludicrous. Calling people who are not even guilty of shop lifting at a Seven-Eleven non-state enemies cause they happen to be in the vicinity of a suspect or have come to rescue the injured. We are only a few years away from these drones (ours or someone else’s) ruling the skies and threatening to destroy anyone at anytime or at anyplace. It is time to establish some rules for conduct.

  8. The people being targeted by the drones are not an enemy army of a state on which the US has declared war.

    False.

    link to en.wikipedia.org

    They are suspected criminals or terrorists. But they haven’t been put on trial.

    It is also false to claim that “wartime enemy” and “criminal” are mutually-exclusive categories. Prior to being captured, a suspected war criminal can be shot at just like any other wartime enemy. After being captured, that person can then be tried as a criminal. See the Geneva Conventions.

    The permission by Washington and London for drones to kill people
    involves a clear depriving of those individuals of their right to due process.

    Yes, when there isn’t a pilot on the airplane that drops a bomb, that changes everything from a legal perspective. Umwut?

    The executive is the judge, jury and executioner. The executive is always the “judge, jury, and execution” in the prosecution of a war. That’s what war powers are – the legal authority to target and kill people against whom the country is at war.

    • Joe, unless you have access to the kill list, you don’t know any more than I do who is being targeted and the rational. Our invasions of Iraq and Afghanistan make it pretty clear that we are very comfortable waging military violence against countries and elements within countries that not a threat to the security of the US.

      To think that the drone targeting is limited to those who are a threat to the US is truly naive. We attack who we want, when we want whether it’s Vietnam, Panama, Grenada, Iraq, Afghanistan, Serbia, Libya, Somalia, Yemen, and the places they don’t tell us about. It’s in our blood.

      • Joe, unless you have access to the kill list, you don’t know any more than I do who is being targeted and the rational.

        Oh, I get it: you get to make all sorts of accusations about what we are doing, but when someone punches a hole them, then you pretend we don’t know enough to say one way or another.

        Anyway, no, I don’t need to have access to the “Kill or Capture List.” Just like the Bureau of Investigative Journalism, Professor Cole, and you, I can look at the actual strikes that have been carried out and draw conclusions from them about who is being targeted.

        Our invasions of Iraq and Afghanistan make it pretty clear that we are very comfortable waging military violence against countries and elements within countries that not a threat to the security of the US.

        President Obama didn’t invade Iraq – he opposed invading Iraq. As for Afghanistan, we invaded that country to rout al Qaeda, a group that proved pretty damn convincingly that they are, in fact, a threat to the United States.

        But beyond that, your logic is unsound. “Because the U.S. invaded Iraq, that shows that the strikes against al Qaeda are not being carried out to stop terrorist attacks.” That makes no sense – it’s just an ad homimen argument. You’re merely accusing the United States of being Very Bad People, so therefore, anything it does must be Very Bad.

        If you want to argue about the drone strikes, argue about the drone strikes. You’re quite comfortable doing that with the information you have, so you’ll have to forgive me if your insistence that no one else is allowed to do so isn’t terribly compelling.

  9. Response to Greg:
    The answer to your concern is very simple: do not attack people who have not attacked the United States. You may recall that the Constitution reserves the right to wage war to Congress; that Congress has abrogated its responsibilities for years does not mean that a solution does not presently exist; indeed, it always has.

    • The answer to your concern is very simple: do not attack people who have not attacked the United States.

      What does that have to do with the war against al Qaeda? You do remember that they attacked the United States, right?

      You may recall that the Constitution reserves the right to wage war to Congress

      And you may recall a certain vote taken on September 20, 2001.

  10. If this investigation is handled in a fair, professional, and objective manner, the United States has nothing to fear from it.

    If you actually read the statements from the UN, they are steering a neutral, investigatory course, and avoiding prejudging the outcome.

    American officials should view this investigation as an opportunity. There are a lot of question out there, and good portion of them are being asked by people who would treat a UN report as a legitimate, reliable authority. Those who reject the report once it clears the US, after having called for it and celebrated today’s announcement, can be safely ignored.

  11. Today I read something written by a rank and file Republican that really rubbed me the wrong way. He wrote that war is terrible but not half as bad as the abject surrender policies of the Democrats. This person has been deluded in to thinking that the imperialistic policies of the Democrats are really policies of “abject surrender”. This is just one more example of why I do not like to be in the same room as Republicans.

    • And hence a perfect example of how we get political polarization and dysfunction. Some vocal individuals on the right (or left, for that matter) make statements that are stupid, crazy, and/or simply annoying. So people on the left (or right) respond by refusing to consider the ideas and perspectives of the right (or left), if not outright refuse to engage with them at all. This stupidity leads to a dysfunctional political system.

    • Thanks for the article.

      The Council on Foreign Relations has also urged the Obama administration to exhibit more transparency regarding the drone program.

  12. What worries me about drone warfare technology is that it is easily replicated. The weapons systems may not be as easy to come by. However, it is just a matter of time before some sort of air-to-surface bomb or missile can be attached the a drone belonging to an enemy of the U. S.

    Which leads to the question, how will we feel about having drones high above our own cities with the ability to inflict death and destruction analogous to drone strikes abroad? Other countries are not influenced by our Constitution or by U. N. resolutions.

    • The technology behind drones is not just easy to replicate; it’s easy to develop from scratch, too. This isn’t like the hydrogen bomb situation, in which the Soviets never would have been able to build one if the U.S. hadn’t first produced one for them to copy.

      Building a remote-controlled aircraft is trivially easy for a state. The satellite communications that allow it to be long-distance remotely piloted in real time is little different from the technology that allows you to stream Gangnam Style covers on Youtube.

  13. While this debate is essentially unaffected, it should be noted that the US Constitution does authorize Letters of Reprisal issued by the executive, usually against a pirate vessel well known to have attacked targets in the US or US shipping. The letter authorizes private vessels to attack the specified vessel. I do not have examples of typical limitations stated in such a letter. Letters of Marque authorized in the same phrase authorize arrest in other nations or at sea of named persons believed to have committed crimes within US jurisdiction.

    • I was hoping someone would discuss the pirates and the founding documents. I’m curious if any of that is actually pertinent to the AQ war. Just a reader, not an informed commenter at this point although my first scan seems to indicate that the Barbary pirates were far from stateless.

      • Apparently the founders considered that a pirate vessel was a purely military entity less than a state, where the executive might have discretion to counterattack with very low risk of involving innocents, and without troubling Congress to declare war in potentially numerous small incidents. It is significant in showing that the executive was not given discretion to attack foreign nations or parts thereof, nor to attack vessels without issuing the public Letter of Reprisal, nor to attack entities not purely military and distinct from potential locations of innocents. Homes and villages such as those attacked by drones and Operation Phoenix operations in Vietnam, characterized only by counts of suspect persons coming and going, were not authorized. And in fact the Constitution does not authorize even Congress to conduct foreign wars of any kind – only to suppress insurrections and repel invasions. Foreign wars can be conducted only by treaty, only because treaties become part of the Supreme Law of the Land like the Constitution.

        But as others observe here, in fact the drone-based GWOT is a wildly careless attempt to suppress an idea or movement, like the war on communism, which cannot be properly defined or contained, which results in an increased number of enemies, and cannot in fact achieve a defined objective because the idea being fought is not a limited military objective.

        I am a software engineer who refused to do the initial research on drone control communications, on the grounds that the US government does not have the maturity or the responsibility to have more powerful weapons, knowing that someone else would do the job based on tribalistic loyalty rather than real patriotism. Even engineers should be students of history and foreign policy.

        My source notes that the Barbary pirates were attacked by a semi-private force from the US, which deposed a local Bashar whose relationship to the pirates was at best unclear. Perhaps Juan will clarify that.

  14. The idea that the US only targets people who threaten Americans is questioned in “Have US Drone Strikes Become a ‘Counterinsurgency Air Force’ for our Allies?” (Propublica 11-27-12). The fact that our anti-terror war overlaps with local counterinsurgenies raises additional legal and political problems.

  15. Here are some of those lawfully killed by drone strikes.

    Ayeesha, female age 3
    Hoda Ali Mohammed Nasser, female age 5
    Sheikha Ali Mohammed Nasser, female age 4
    Salma Abdullah Mokbel Salem Louqye, female, age 4
    Fatima Abdullah Mokbel Salem Louqye, female, age 3
    Khadije Ali Mokbel Louqye, female, age 1
    Mohammed Ali Mokbel Salem Louqye, male age 4
    Maryam Hussein Abdullah Awad, female age 2
    Shafiq Hussein Abdullah Awad, female age 1
    Sheikha Nasser Mahdi Ahmad Bouh, female age 3
    Shafika Mohammed Saleh Mohammed, female age 4
    Shafiq Mohammed Saleh Mohammed, male age 2

    For a longer list see, for example:
    link to infowars.com

    If the slaughter of innocents awakes no shred of pity in your heart, ponder then, that their kith and kin will never forget or forgive the USA. The strikes create a hundred militants for every one killed, and any one of the hundred could be the next Osama. Such slaughter does nothing to enhance the safety of the USA, rather it generates hate, opposition, war without end.

    A cynical observer might comment that war without end serves the global MIC quite well.

    sidd

    • Every war or military action ever conducted has resulted in the deaths of innocents. If you oppose all wars and all military actions for that reason, then you have a perfectly coherent position. However, if you think that sometimes the use of military force is justified, then you have to accept that ugly things like friendly fire deaths and the killing of innocents — even babies — are going to happen.

      In that case, the question now becomes whether we are justified in conducting a war against Al Qaeda and its affiliates in places like Yemen and Pakistan. And also whether the President is acting in accordance with his executive powers or if he’s exceeding the authority granted to him by Congress. And then there’s also the question of how exactly targets are selected and executed. Those are all excellent questions to discuss, but in and of themselves, they don’t actually have anything to do with drones. We’d be having the same discussions about cruise missiles launched from offshore ships or bombs dropped from F/A-18 fighter jets.

    • Sidd: You got it, exactly. And Joe and Bill, who apparently can’t, or because Might is on their side, don’t need to, define what significant national interests are served by hundreds of billions spent, the generation of a whole lot of bad will, and the depositing of imperial excrescences all over the place, want us all to focus on little piddly bits of “rational argument” over what’s “legal,” as opposed to what’s wise for the health of the whole nation.

      What “we” are up to might be good for those who profit from making the war toys and operating them and Managing the Battlespace and of course aiding the extraction of resources (on the way to a global climate that humans might not survive,) and who will be comfortably deceased before it happens and thus immune to consequences. It sure does not seem to be good for the rest of us. But then nobody is asking the rest of us, who take our doses of FOX and go with the flow…

      Be careful, though — this pair, who are always challenging others to provide cites to support any contention they don’t agree with, will be all over you for the observations you make. By way of impeachment, and one has to ask, for what reasons? Why is it worth their time to spend all that effort undercutting any attempt to point out what are clearly moral and political issues of substance, in a place as remote from the Village as this one?

  16. Bearing in mind the way “we” are ordering and conducting ourselves, dumping a huge and growing chunk of our national wealth into a “war” that is conveniently not required to be “declared,” and where no one can state, simply, the huge national interests that justify that, other than stating a “threat” that maybe some asymmetric warriors and sneaks might do bad again, and taking full advantage of the ration of noise and hate that has cynically been used to keep us all fearful of “another 9/11,” and the refrain that all this GWOT stuff is sui generis, so there is nothing to be learned from past rations and rounds of Stupid, like the cliffward deflection of the whole human world system that began with the Great War:

    It is hard to define the role of strategy in modern war, to decide the limits wherein it begins and ends. War is no longer in essence an act of policy, “a continuation of policy by other means,” but a supreme effort to break the resistance of the whole enemy population. … Every kind of measure, whatever its political, financial or economic consequences, may be justified on military grounds alone as essential for winning the war. Briand might well complain that “modern war is too serious a business to be entrusted to soldiers.” But the monstrous paradox remains true that the more important the war, the less say the responsible statesmen among the belligerents are likely to have in waging it.

    … As everyone knows, the unrestricted submarine campaign was forced through by the general staff in spite of Berthmann-Hollweg’s resistance, who foresaw the consequences of provoking the United States beyond remedy. …It needed but a word from the High Command to overthrow them.

    It is clear that the Germans, sentimental, submissive, hierarchical and desperate, welcomed the almost absolute and all-embracing domination of strategy…

    Cruttwell, C. R. M. F., The Role of British Strategy in the Great War. Cambridge [Eng.] University Press, 1936

    Why is this last paragraph so reminiscent of the state of “the Americans” these days? And in case it ain’t clear, Cruttwell’s point is that the people who are supposed to conduct the interests of nations have, since 1914, largely been shut up and ignored by the militarists, who settle on “strategies” like Global Wars on Terror and counter-insurgency and tactics and strategies like Droning, in wars and other “involvements,” where the ability to simply “do something” (like U-boat warfare in WW I, link to en.wikipedia.org) leads to surprising and could one say negative results.

    On the other hand, who cares? Joe and Bill and their side sure have all the throw weight and momentum behind them…

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