The Drone Wars

by Chris Borgen

David Cortright, the policy director of the Kroc Institute for International PeaceStudies at Notre Dame has posted an article to CNN.com looking at the prospect of the wide-spread proliferation of drone warfare. He begins:

Drone technology is spreading rapidly. As many as 50 countries are developing or purchasing these systems, including China, Russia, India, Pakistan, and Iran.

Even non-state actors are involved. Hezbollah reportedly has deployed an Iranian-designed drone. Iran is developing a new drone aircraft with a range of more than 600 miles. These systems are used mostly for surveillance, but it is not difficult to equip the aircraft with missiles and bombs…

After discussing the risks of proliferation and the problem of mistaking a startegy of drone strikes for counterterrorism policy, he turns to the legal issues:

Many important legal questions have been raised about drone strikes. The U.S. government arguably has legal authority to conduct military operations in Afghanistan, based on the original congressional authorization adopted after 9/11. It is questionable, however, whether this authority extends to Pakistan, a country that is supposedly an ally of the United States. Nor do we have legal authority to launch military strikes in Yemen, Somalia and other countries where the United States is not officially engaged in armed hostilities.

Force may be used by soldiers against combatants in legally authorized armed conflicts, but this right does not extend to civilians. The U.S. covert counterterrorism drone campaign is managed and operated by the CIA, an agency notorious for its past policy failures and violations of the law. Those who are conducting these raids operate in secret beyond the restraints of military discipline and are not subject to the Uniform Code of Military Justice.

Well, there are lost of issues that get blended in here. Most interesting, I think, is the CIA’s management of drone strikes. In just about anything the Agency does, the question of adequate legal oversight persists. Why use the CIA as opposed to one of the armed forces?  While I am more willing than Cortright to include drones as part of our counterterrorism/ warfighting tactics, that does not mean that the CIA should be be in charge as opposed to one of the armed services. Or am I missing something?

http://opiniojuris.org/2011/10/19/the-drone-wars/

9 Responses

  1. I don’t know really how these duties are allocated between the CIA and the USAF.  Presumably operations in the agreed-upon theater of war are conducted by the USAF.  And operations elsewhere are conducted by the Agency. This division of labor insulates the military and provides (oft-implausible) deniability for the U.S.G.  So I’m with you Chris, if the U.S. is going to argue that Yemen is at least at times in the theater of war – and people in Yemen people subject to the perils of war – then the military should conduct any operations conducted there on behalf of the people of the United States.  But we are still divided on whether places and people outside Iraq, Afghanistan and border regions are legitimate military targets.  To the extent we don’t really believe our rationale, we are stuck with clandestine operations.

  2. Response…
    see answers to questions in 37 Wm. Mitchell L. Rev. 5001, et seq. (2011) re: CIA and drones.
    I suspect that Air Force JAG officers are much better trained in the laws of war and, therefore, are more likely to provide better advice concerning target selection and the need for conformity with principles of reasonable necessity and proportionality in a given context — and don’t forget that these same general principles (including the pricniple of distinction) are relevant to lawful self-defense targetings during times of relative peace or outside the theatre of a real war, like the Aghan war (not the “war” with al Qaeda, which cannot exist under traditional international law).

  3. Response…
    p.s. see also the Morris Davis op ed over at JURIST re: CIA and drones

  4. The CIA operators have been trained by military JAG’s in the laws of war according to Henry Crumpton who was in charge of the drone program in Afghanistan from its inception (see Wm. Mitchell cite of Jordan’s at 5031, fn. 33).  The question is whether they are subject to discipline if they violate those laws.  Crumpton did not explicitly state that this was the case, but I believe it was strongly implied.  If it is NOT the case, then Cortright has a legitimate complaint.  If they ARE subject to discipline for LOAC violations then, while Jordan is correct that AF JAG’s are much better trained in that area than the CIA operators, that should not disqualify the operators from flying the drones.

    However, because the program still does not officially exist, it will be impossible to determine what sort of disciplinary measures (it would not have to be the UCMJ specifically) they are subject to and whether these were sufficient to allow the operators to qualify for combatant status by meeting the “shall be subject to an internal disciplinary system which, ‘ inter alia ‘, shall enforce compliance with the rules of international law applicable in armed conflict.” requirements of API 43(1).

    Interestingly the continuing refusal to recognize the program could jeopardize that status because under API 43(3) there is a notification requirement if “armed law enforcement agenc[ies]” are incorporated into the armed forces of a party to the conflict.

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    “Why use the CIA as opposed to one of the armed forces?”
    Because the armed forces are institutionally incapable of developing drones or the doctrine to effectively use them.
    In 1993, the U.S. Military was incapable of efficiently tracking and dispatching Mohamed Farrah Aidid.  The US sent thousands of soldiers into Somalia to support the hundreds of soldiers that went after Aidid and his militia.  This heavy footprint doctrine didn’t catch Aidid, didn’t bring peace and stability to Somalia and was pretty much a complete failure.
    The CIA recognized that what was needed was a surreptitious way to constantly track bad guys in technological backwaters without any air defenses and it went about developing the Predator.    CIA agents who were used to clandestinely infiltrating unfriendly neighborhoods alone, understood what was needed.  Cold War Generals indoctrinated in “we never leave behind a fallen comrade” and “there is no problem that cannot be resolved with a sufficient amount of high explosive” could never, at that time, see the value of a drone on the battlefield as anything more than a novelty.
    Once the war on terror started, and the value of drones became apparent to everyone. The Air Force jumped into the game and tried to muscle out the CIA.     Unfortunately, almost immediately the Air Force drone program was caught in the inevitable Pentagon procurement death spiral where large numbers of a good enough system (predators/reapers) are sacrificed for fewer of a perfect-but as yet undeveloped system, see F-35.   In the war on terror the drone’s best asset is that it is cheap and plentiful.  They can be flown in dangerous areas because there is less downside to a cheap replaceable drone being shot down by an angry Pakistani/Chinese/Iranian General, or crashing into a mountain.   Also the more drones there are, the more widely they can be utilized.   If the Air Force were running the drone program, U-2’s would be flying over Afghanistan looking for targets for F-15/16’s while a super-duper new Global Hawk block 1000 is in perpetual development/production/re-development/re-production, and the Air Force is looking to cut funding for the super-duper drone to pay for more F-22’s & F-35’s.
    The Air Force, and military in general, institutionally just cannot understand that sometimes less is more.  That is why the CIA is running the Predators and most of the war against Al-Qaida (as opposed to the greater wars in Iraq and Afghanistan), the former head of the CIA is now the Secretary of Defense, and terrorist leaders are dying every day.

Trackbacks and Pingbacks

  1. […] Dame’s David Cortright writes at CNN.com on the spread of weaponized drones (Chris Borgen, thanks).  He says in part: Any development that makes war appear to be easier or cheaper is dangerous […]

  2. […] A perennial question that arises about the use of force — but with particular emphasis now that drones are in the equation — is why the CIA is directly involved in the conduct of any uses of force, including drone operations?   Why shouldn’t the military be the only ones authorized to engage in these use of force operations?  It’s both a legal question — is it lawful for the CIA, as a civilian agency, to use force abroad — and a policy question — even if it’s legal, is it a good policy idea, rather than having the CIA engage solely in intelligence gathering and analysis, and have the uniformed military carry out any armed attack.  (I’m going to Chris Borgen’s question at Opinio Juris.) […]

  3. […] Opinio Juris » Blog Archive » The Drone Wars […]

  4. […] Dame’s David Cortright writes at CNN.com on the spread of weaponized drones (Chris Borgen, thanks).  He says in part: Any development that makes war appear to be easier or cheaper is dangerous […]