One Consequence of CIA Drone Strikes

by Kevin Jon Heller

Like Ken, I plan on discussing Phillip Alston’s report on drone strikes when it’s released.  Alston was just at Melbourne Law School last week, talking about his role as rapporteur.  He’s a remarkable person.

With regard to drone strikes in armed conflict, Ken quite rightly points out that CIA operators cannot lawfully be attacked by a terrorist group even if they themselves do not qualify as privileged belligerent — an unprivileged belligerent such as a terrorist has no privilege to attack anyone.  But he overlooks one important point: because a privileged belligerent could lawfully attack a CIA operator, a terrorist who attacked and killed a CIA operator would not be committing a war crime.  His crime would be murder.

That’s important, of course, because of what I noted yesterday: if our hypothetical terrorist is guilty of murder but not of a war crime, he could not lawfully be prosecuted in a military commission, regardless of what the Department of Defense says.  He would have to be prosecuted in a domestic court.

And that, of course, would be the end of Western Civilization itself.

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