07 Jun More Questions for Ken
I know Ken’s busy finishing his book and can’t yet reply to Marko’s remarkable post. (And personal congrats, Marko, on the lectureship. Nottingham is lucky to have you!) When he does, I hope he’ll address the criminal-law aspects of his belief that self-defense justifies targeted killings outside of armed conflict. I have two scenarios in mind, borrowed and adapted from Marko’s post.
Scenario 1: The CIA kills Mephistopheles in Pakistan using a drone, because the Pakistani military is either unwilling or unable to prevent him from carrying out his dirty-bomb attack on a US city. Pakistan somehow manages to get their hands on the CIA agent who piloted the drone and charges him with murder in a domestic Pakistani court. What is the role of self-defense in that prosecution? Does it divest the court of jurisdiction? Is it an affirmative defense? And who invokes it — the CIA agent? The US government?
Scenario 2: The CIA kills Mephistopheles in Pakistan using a drone, because the Pakistani military is either unwilling or unable to prevent him from carrying out his dirty-bomb attack on a US city. Mephistopheles is a US citizen. A US attorney appointed by a newly-elected Democratic president — one who realizes you must look backward to move forward — charges the CIA agent who piloted the drone with violating 18 USC 1119, the federal foreign-murder statute. Same questions as above. What is the role of self-defense in that prosecution? Does it divest the district court of jurisdiction? Is it an affirmative defense? And who invokes it — the CIA agent? The US government?
Readers who are interested in a preview of Ken’s typically thoughtful approach to US counterterrorism policy can find a lengthy report for the Brookings Institution here.
Pakistan can prosecute an American for killing someone in Pakistan, and Article 51 national self-defense is not a legal defense against a charge of murder brought under Pakistani domestic law. There is nothing the US can do here, so the CIA would do well to maintain secrecy and people involved in such operations would do well to vacation in India instead. That is one of the reasons why the premise of the hypothesis is flawed. Currently the CIA operates drones inside Pakistan with the consent and cooperation of the Pakistani government, which only wants deniability that it is not allowing a foreign military to operate on Pakistani soil. If some hypothetical future operation is taken under Article 51 national self-defense and without the cooperation of Pakistan, then the military would handle the attack as it has handled every other Article 51 situation. Then the individuals involved are covered by combatant immunity and any legal consequences are handled state to state. As to US prosecution, this sort of thing is not done casually. There have to be Presidential Findings and the approval of Cabinet officials. At the end of all that, for some AG in some future administration to prosecute the… Read more »
I agree with Howard on 1 (see the CIA in Italy abduction case). On 2, maybe. On 3, actually it is more likely the low level guy would be prosecuted (see Abu Ghraib) with all that paperwork above. Granted the apparent CIA-DOJ understanding about such things that is said to go back to the 1950’s would probably be a significant bureaucratic block to such a prosecution. But, that the high-level folks throw low-level folks under the bus, nothing new under the sun.
Best,
Ben
On Dreyfus, see http://www.lrb.co.uk/2010/04/21/jacqueline-rose/jaccuse-dreyfus-in-our-time
Is there a difference in the laws of war between a drone attack and a road side bomb as means for killing an enemy?
Best,
Ben