Though I am generally upbeat about the use of drones in military applications, one must recognize design flaws:

The Navy’s latest multi-million pound drone has the unfortunate feature of starting to self-destruct if the pilot accidentally presses the space bar on his keyboard …. The Navy are planning to buy hundreds of drones of the MQ-8B Fire Scout, one of which helicopter almost exploded after the drone’s operator accidentally pressed the space bar with a wire from his headset – which launches the self destruct mechanism on the vehicle.

China has been moving to catch up with the US and Israel in production of military UAV drones, reports the Wall Street Journal today, in an article by Jeremy Page (Friday, Nov. 19, 2010, A11).   The article says that the uptick in drone output has surprised the West:

Western defense officials and experts were surprised to see more than 25 different Chinese models of the unmanned aircraft, known as UAVs, on display at this week’s Zhuhai air show in this southern Chinese city. It was a record number for a country that unveiled its first concept UAVs at the same air show only four years ago, and put a handful on display at the last one in 2008.  The apparent progress in UAVs is a stark sign of China’s ambition to upgrade its massive military as its global political and economic clout grows.

I don’t think Western experts should have been all that surprised, at least looking to the long term.  As has been noted repeatedly here at OJ, drones are not some fantastically advanced technology, beyond the reach of all but DARPA.  On the contrary, the avionics and flight control mechanisms have been around for a long time, with tweaks to the basic concept of remote controlled flight provided by advanced in communications and computers.  Sometimes journalists and others make dire predictions about the US or Israel having set off an “arms race” over drone deployments – the US and Israel, then China and Russia, then India and Pakistan …. but this misses the point.  Drones will spread because they will take over significant parts of civil aviation in coming decades, no matter what, and that will be so in any industrialized economy.  The technology is widely available and represents a vast cost savings – military aviation has many additional reasons why drones are useful, but this is part of a broader wave for all aviation.

It is not really all that different from DARPA subsidizing research into self-driving vehicles.  This has obvious applications to urban warfighting, which is why DARPA has funded it for years – but winning researchers from the DARPA competitions for self-driving vehicles have now moved over to work with Google, finally deploying self-driving vehicles on the streets of the Bay Area this year.  It’s not an arms race; it is the future of parts of vehicle automation for both civilian and military vehicles.

The real areas of technical competition in UAVs are not in avionics, nor in the weaponry – though improvements there will make them smaller and more discriminating as well – but in the sensors deployed on the drones.  Sensors are hard – even today, the drone sensors, as far as we know publicly, are still in the range of video.  There’s a lot of room for sophistication.  The Economist had a good article recently on both the difficulties and the gradual improvements in the abilities of robotic “eyes” to “see” things.  That’s the future technical competition in robotics, or at least an important part of it – much less so the avionics.  As for arms races, the true arms race in the military UAV world will not be a race to deploy – everyone who wants UAVs will have them, in various sizes.  The race that matters will be the technological counters to drones – the counter-technologies that will bring them down out of the sky.  That, we have yet to see deployed, but it will arrive very soon.

Sorry for the light posting of late – the Anderson family is currently in the Sierra Nevada, the eastern side out of Bishop, California, on God’s own highway, the Empty Quarter of Highway 395, which runs north-south from southern California all the way up the eastern Sierra and beyond.  It is both the most beautiful and most varied countryside you can imagine.  If the gods loved you, you would be here, as are we.  Unfortunately not spending enough time, however, so we are just doing various day hikes.

There is not a lot of international law in the eastern Sierra Nevada.  There is an important body of sovereign nation law, given that there are several Indian tribes and tribal lands up and down the Owens Valley, including the Paiute-Shoshone tribal lands in the center of Bishop.  But one feels somewhat removed from the Law of Nations.  However, I thought I would share one conversation with one of the rangers here in the national park.  She remarked that the ranger services – national parks, national forest, etc. – had been watching with great interest the growth of unmanned aerial vehicles (UAVs) in civilian use.  So far this includes things like crop dusting and surveillance.  Because the air bases that command some of the UAVs are located in Nevada, relatively nearby (in the Empty Quarter, that might mean 300 miles of desert driving, of course), there is a lot of awareness of UAVs and their potential – University of Nevada, Las Vegas has just begun a program to graduate UAV controllers, for example.

When people talk about surveillance UAVs, they are typically thinking about border patrol, but here, the park services are thinking about fire patrols – an immensely expensive task from aircraft now, because of the vast areas to be surveyed in real time – but worth it because the faster the fire is spotted, the better the chance of containing it before it spreads.  LIkewise, search and rescue for lost and injured back country hikers.  That one is somewhat ahead of existing technology, for what the park services would ideally like, because flying in the steep valleys and canyons is difficult and hazardous now, but UAV technology is not sufficiently up to speed to take over those tasks.  But it will happen soon, as smaller UAVs that are more like large birds can be deployed in difficult, deep, or narrow spaces.  Likewise, as the sensor technology gets better, cheaper, and more available, it will be easier to find a single lost hiker using not just things like infrared signatures, but sensor arrays that are … well, if they exist, they are still only available to the military.

Point being – this will not be a surprise to OJ readers who understand that this site is UAV-targeted killing central information station – that UAVs are going to spread rapidly and widely across a huge array of tasks and functions currently carried out by manned aircraft.  It will happen because UAVs will be so much cheaper, efficient, and in many functional aspects superior to using people in airplanes.  The impetus will rapidly turn from being military, as it still is now, to civilian.  Everybody, everywhere in the world will shift that direction.

I raise this because there is a meme that still circulates with some velocity in the international law community, journalists, and others, that the US is risking setting off some kind of UAV arms race by its increasing roboticization of conflict – not just UAVs, but ground vehicles, and so on.  I don’t think that’s right; the meme fundamentally misunderstands the technology and its application.  Rather, UAVs are going to spread across a very wide range of aviation in any case, in which military uses will just be one of them.  The same technology, cost, safety, efficiency, and so on, drivers that push for fire surveillance in the Sierra Nevada will be exactly the same ones that drive the military to use the technology.  One can call it an arms race, I suppose, but only if one imagines that it is all about military use, otherwise it is a misleading way of thinking about the technology.

A better way to think about this is to go back to what make robots robots.  In general, there are three conceptual pieces:  A locomotion function or means of gross movement or action in the world; computing and central processing power to be able to analyze; and sensors to bring in streams of data which, being analyzed, result in some form of gross mechanical action.  (In the case of US military UAVs, we can add an additional piece that brings them into an intersection loosely with ‘cyber’ – the communications net that allows them to be piloted over Afghanistan from the US.)  Focusing on the UAV’s gross locomotion part, the flying part, and saying that it will lead to an arms race in which everyone will want one and arm it with a missile misses the point.  There is no arms race about that – the technology for flying remotely has been around for decades; anyone who wants to build one can do so at a hobby shop.  Putting a missile on it is child’s play, literally – presumably no one would be so politically incorrect as to propose building a Predator with a missile as the next high school robotics competition for high school teams, but apart from political sensitivities aside, one reason is that it’s just too darn easy.  Flying is easy; making a machine that walks up stairs is hard.

Everyone will have UAVs because everyone will want them for so many, many things, mostly unrelated to military or police missions.  Any government that wants to arm one with a missile will have no difficulty doing so.  The real technology issues are not with flying, or with weaponization – or even with computing power.  That’s all off the hobby kit shelf.  No, the real technology issues arise with sensors.  One robotics scientist in Silicon Valley told me last year that it was largely unrecognized, but the real advances in technology of the past decade had not been in computers as such, but in sensors and controllers, ranging from new ways and kinds of bringing data streams online to direct neurological, direct brain control of robotic limbs for amputees, and so on.

But now, note the issue.  Some of this technology is classified for military R&D; other parts are not.  The importance of robots outside of the UAV context are immense in large part because the Baby Boom generation does not have sufficient children to see us off to our reward; we are going to slide into dementia and be cared for and comforted by cuddly robotic dolls that we will think are human, to judge by where things are going in Japan.  In the US, we are not so aware of this, yet, although it is striking that the Times and the WSJ have both moved on in their robotics coverage from targeted killing via UAVs to much more friendly news stories about Alzheimer’s patients in Japan being soothed by robot plush dolphins.  Dolphins that will be smart enough to monitor medical conditions and call 911 if needed, to take obvious examples, or monitor whether a patient has taken the meds, or any number of things.  What lies behind this is sensor technologies.

In an armed conflict context, however, it is questionable how many of the fighting forces in the world, state or non-state, will feel any great obligation to minimize collateral damage or attempt to more and more affirmatively id a target before striking.  If you don’t feel that obligation – I would estimate that the countries involved will be the US and Israel, and the rest of NATO only insofar as it ever intends to do any more fighting, but in any case, they will simply acquire US technology.  China will likely do so, because it would at least want every capability, and because it can most likely steal the technology and reverse engineer any missing parts.  But either sensor technology will spread across civilian uses, such as elder care robots, so as to make the concept of an ‘arms race’ moot, or else the number of countries that will be “racing” to have such technologies will be almost entirely limited to countries that (a) fight and (b) care about the rules.  That makes the list frankly pretty short.  It is possible that India might join that list, along with Taiwan, South Korea, and a handful of others in Asia.  But there will not be an “arms race” around sensors, because they are useful primarily for reasons related to more discriminating targeting, and the militaries in the world interested in that is not a long list.

Will there be an evolution of arms around UAVs, then?  Yes, but not likely along those parameters.  The likely arms race is along a quite different one.  Predators are slow and noisy for targeted killing; it will not take long before some party – Iran – begins doing what the US did via the CIA in Afghanistan against the Soviets, and supplies rudimentary surface to air missiles to attack the drones.  The arms race will get underway in the classic evolution of protecting air dominance.  The Predator, for example, might launch not a missile, but instead a still smaller drone with a single-person weapon, specifically designed for up close use.  That will be a function not of flying technology or weapons technology, however, but, once again, sensors.  But an arms race over air superiority is not one that has the implications for the supposed dangerous spread of this new military technology – introducing dangerous new dynamics between India and Pakistan, for example – that numbers of commentators seem (still) to imagine.

I am returning to the solitude and off-lineness of the mountains.

I have been flattered to be called out on the topic of drones, targeted killing, the CIA, and related issues arising mostly from the release today of Professor Philip Alston’s UN special rapporteur report (press release here).  Deborah has a useful summary and some important quotes from the press release in her earlier post.  I’ve read the report once, and am reading it again, but am not ready to comment.  Well, not quite.  I’m under pressure to produce some commentary for some newspaper and print journalism, while getting the grading completed before my faculty’s $100 a day late fine kicks in … sorry to punt, but I’m not quite sure I want to weigh in with a quick blog post as yet on the topic (okay, this gets a little longer than planned, but it’s not really a response to the report).

I will say, though, that Philip’s careful discussion, set against the way in which the State Department frames the issues, is a demonstration once again of the ways in which public international law seems to be increasingly discourses passing in the night.  It’s one reason I hesitate to take the issue up here – I’m not persuaded that we all speak a sufficiently shared methodological language in these highly intertwined legal-political issues to be able to do much more than set out a view and the sources that we find persuasive.  The importance of actual historical state practice of leading states, or not, on the one hand, versus the importance of such things as pronouncements of the ICJ or other tribunals or statements by UN bodies or rapporteurs or military manuals of states that don’t actually fight, or not, on the other … you see the problem.

So, yes, I endorse the “independent” self-defense view as an alternative legal basis for the use of force, which is to say, I reject the view that uses of force are a binary exhausted by law enforcement and armed conflict (I’ve posted another round of this discussion and the CIA in the second hearing testimony that I’ve just posted at SSRN).  Given the existence of an armed conflict with Al Qaeda, among other parties at this point, whether any particular drone strike is an act within the armed conflict or an exercise of independent self-defense is open to interpretation, with the possibility of overlapping rationales in some cases.

I endorse the State Department’s view of this, as I understand it from Legal Adviser Koh’s ASIL speech, and think it nothing novel – merely the reassertion of US legal views – going well back before the Obama, Bush fils, and Clinton administrations, to Reagan and Bush pere, and no doubt well before that even.  If a state cannot or will not control its territory to prevent it from being used as safe haven for terrorists or terrorist groups, then even the important international legal rule of territorial sovereignty can be overcome by an affirmative defense of self-defense; that use of force might be in the form of armed conflict, but it might be something that does not rise to that level of hostilities and thus constitute an act of self-defense use of force simpliciter.  That use of force is justified under jus ad bellum and is directed against the threat – the terrorists – and because it is a use of force, it must meet standards that are, as the Legal Adviser said, the principles underlying armed conflict rules, distinction and proportionality and, I would add, necessity in the first place in determining to target.  Necessity giving rise to self-defense; distinction in defining the target; proportionality in the evaluation of collateral damage. (more…)

Although I was up at six, I think Julian must get up a lot earlier than I do, as he is regularly beats me to the punch on what’s in the newspapers on drones.  I will post something more once Philip Alston’s report is out next Tuesday and I have had a chance to read the text.  But here are a couple of comments per Charlie Savage’s exceedingly interesting NYT piece.

There are two ways of seeing a call for drone strikes to be turned over to the US military, rather than the CIA.  One is fundamentally grounded in the binary that all uses of force must be either law enforcement or else armed conflict – and if so, there is no room for the CIA to be conducting these strikes.  In that case case, the call to take the CIA out of it is a way of reasserting the basic binary.  This is problematic from the US standpoint, if it is a way of reasserting this fundamental binary, since the Legal Adviser’s ASIL speech specifically preserves an independent ground of self-defense that is not a matter of armed conflict.  If CIA participation is unlawful because the binary holds, then the US has simply rejected the underlying premise – indeed, said that it has never accepted it, going back clear to the 1980s and beyond.

The other way to see a call to take the CIA out of the activity is on the ground that because this is an armed conflict, uses of force must be undertaken by lawful participants, and the CIA, as a civilian agency, is not a lawful participant.  Insofar as this is offered as something that is not driven by the fundamental binary above, then it is essentially a claim about the CIA not meeting the requirements lawfully to engage in hostilities – some version of the claim that the war with Al Qaeda is an armed conflict, and the CIA are not privileged combatants.  This is a technically more complicated claim in the rules of war than much of the public discussion has treated it.  Much of the public discussion seems to revolve around the idea that if you are a civilian, you are not allowed to take part in hostilities; the legal point, rather, is that there are numerous categories of civilians that have varying roles in direct participation in hostilities and the point is not to say that their participation is unlawful, it is that – if they were facing a lawful foe – they are themselves lawful targets.  Whether they wear uniforms or not is a question of whether the circumstances in which they wear uniforms, or non-standard uniforms (e.g., special forces in Afghanistan), etc., is a question of whether they fail to distinguish themselves from the non-combatants.  Insofar as they do this from Langely in some cubicle, that does not really present a problem.

As to the assertion that they have made themselves lawful targets – that would be true if engaged with a foe that could lawfully target anything.  In the case of a terrorist group – Al Qaeda, the IRA, ETA, etc., the automatic assumption that military lawyers sometimes make, that jus ad bellum and jus in bello are independent, is beside the point; these groups have no reciprocal right to target anything, irrespective of whether, in a lawful conflict, something or someone would be a target.  It is not the case that by flying a drone from Langley, the CIA operator is now a lawful target – he or she would be if flying it in a conflict with, oh, North Korea, but not Al Qaeda.  Al Qaeda has no belligerency rights jus ad bellum, just as it has no combatant privilege jus in bello.  To suggest that the CIA at Langley has put itself into an “equivalent” position is not correct.  If the CIA at Langley were fighting a lawful actor, its participants would be lawful targets – although not, merely in virtue of not wearing uniforms inside Langley, “unlawful combatants.” But not as regards Al Qaeda. (more…)

My new Weekly Standard essay – although “polemic” is probably closer to it.  And thanks, Julian, for the plug below! Well, regular readers have been hearing about this piece for a while, and I have posted various arguments from it (concerning targeted killing and Predator drones and the CIA and armed conflict and self-defense, and my general concern that the Obama administration has embraced a policy that its lawyers have not so far stood up publicly to defend as lawful against its gradually emerging critics in the international “soft law” community) here at Opinio Juris and at Volokh Conspiracy.  I will post a couple of comments on the piece later, including of couple of things I wish I had clarified or said differently.  Meanwhile, if you are interested, it is the cover in this week’s Weekly Standard (March 8, 2010).  It is also very, very long, at some 8,000 words — for which I am deeply grateful to the WS’s editors but you perhaps will not be — and so you might find it easier to read a pdf of the print edition at SSRN.

I have been meaning to add, though, that several positions are emerging in new scholarship coming out on this topic.  I’m not the only person defending “self defense” as the correct paradigm, for example.  Jordan Paust has an important new paper on this, and although we come to very different conclusions as to what and how self-defense does things for you, we share a foundation in international law of self-defense.  Mary Ellen O’Connell also has a well known position, ably set out in this book chapter, and which I criticize in passing in the WS.  John Radsan and Richard Murphy stake out an interesting position that calls for some form of judicial review of targeted killing, in this new Cardozo paper.  And, of course, the Ur-Text on the subject (even when I disagree with it!) Nils Melzer’s treatise, Targeted Killing in International Law (Oxford 2008), which I see is now out in paperback at $50 (but no Kindle edition).  I will come back in a separate post both to comment on some things from the WS essay at a less political level, and also to give a better sense of where my position sits in relation to others in the international law community.  Finally, I’d like to thank and congratulate the Harvard National Security Journal for its upcoming symposium on robotics, drones, and related topics this week – it promises to be very interesting, and I believe the journal might post some account of it or perhaps some video of the program.

I do realize that Copenhagen is still underway, so this is a little like whispering in church (I’ll put it mostly under the fold) … however, it’s a Friday afternoon, and this Gizmodo article on the physics of combat in space was highly distracting.  The most interesting bit to me was the observation that in a war between planets, functional trajectories of approach are not unlimited.  Launch windows and orbital relations between the planets matter hugely.  There are logical places for defense, in other words, even if they shift over time with the planet’s solar orbits, beyond the planetary defensive orbit itself.  This means room for strategy in space combat, in other words, and not merely tactics in skirmishing among ships.

One of my favorite issues of the New York Times Magazine is its “year in ideas” issue, which comes annually in December.  Because OJ is a repository of things related to battlefield robotics and law and ethics, I wanted to flag for your attention the item by Dara Kerr, “Guilty Robots.”

[I]magine robots that obey injunctions like Immanuel Kant’s categorical imperative — acting rationally and with a sense of moral duty. This July, the roboticist Ronald Arkin of Georgia Tech finished a three-year project with the U.S. Army designing prototype software for autonomous ethical robots. He maintains that in limited situations, like countersniper operations or storming buildings, the software will actually allow robots to outperform humans from an ethical perspective.

“I believe these systems will have more information available to them than any human soldier could possibly process and manage at a given point in time and thus be able to make better informed decisions,” he says.

The software consists of what Arkin calls “ethical architecture,” which is based on international laws of war and rules of engagement.

The “guilty” part comes from a feature of Professor Arkin’s ethical architecture, in which certain parameters cause the robot to become more “worried” about the rising calculations of collateral damage and other such factors.

After considering several moral emotions like remorse, compassion and shame, Arkin decided to focus on modeling guilt because it can be used to condemn specific behavior and generate constructive change. While fighting, his robots assess battlefield damage and then use algorithms to calculate the appropriate level of guilt. If the damage includes noncombatant casualties or harm to civilian property, for instance, their guilt level increases. As the level grows, the robots may choose weapons with less risk of collateral damage or may refuse to fight altogether.

As I have said several times on this blog, and in various talks and presentations, I am agnostic as to whether at some point in the future, robots might prove to be ethically superior to humans in making decisions about firing weapons on the battlefield.  When I say agnostic, I mean genuinely agnostic – it seems to me an open question of where technology goes, and in, say, a hundred years, who can say?  For thing, I do fully imagine that roboticized medicine, surgery and operations, will very possibly have reached the point where it might well be presumptive malpractice for the human doctor to override the machine.  It is not impossible for me to imagine – far from it – a time in which it would be a presumptive war crime for the human soldier to override the ethical decisions of the machine.

But maybe not.  Although I am strongly in favor of the kinds of research programs that Professor Arkin is undertaking, I think the ethical and legal  issues, whether the categorical rules or the proportionality rules, of warfare involve questions that humans have not managed to answer at the conceptual level.  Proportionality and what it means when seeking to weigh up radically incommensurable goods – military necessity and harm to civilians, for example – to start with.  One reason I am excited by Professor Arkin’s attempts to perform these functions in machine terms, however, is that the detailed, step by step, project forces us to think through difficult conceptual issues regarding human ethics at the granular level that we might otherwise skip over with some quick assumptions.  Programming does not allow one to do that quite so easily.

And it is open to Professor Arkin to reply to the concern that humans don’t have a fully articulated framework, even at the basic conceptual level, for the ethics of warfare: “Well, in order to develop a machine, I don’t actually have to address those questions or solve those problems.  The robot doesn’t have to have more ethical answers than you humans – it just has to be able to do as well, even with the gaps and holes.”

Many OJ readers will by now be familiar with Peter W. Singer’s widely noticed Wired for War.  But I would suggest following it up with Professor Arkin’s own new book, Governing Lethal Behavior in Autonomous Robots, particularly now that Amazon has dropped the price from $60 to $40.

I guess I should also add that this discussion is about battlefield robotics in the sense of “autonomous” firing systems – not the current robotics question of human controlled, but remote platform unmanned combat vehicles, Predators and drones.  I will try to put up a post soon noting several new papers on the targeted killing and UCV-drone issues in international law, including new papers on SSRN by Mary Ellen O’Connell, Jordan Paust, and others – I’ll try to do a roundup of recent papers on the subject (once past grading my corporate finance and IBT finals, that is).

If you are going to be around Palo Alto next Thursday evening, you might consider attending a panel discussion on robotics and law at Stanford Law School.  I’ll be on a panel alongside some very interesting and knowledgeable folks taking up varied aspects of robotics (my particular interest is robotics and war, but the panel will be considering many areas of robotics).  The particulars are below the fold.  (I’ll also be giving a lunch talk/discussion that same day sponsored by various student organizations at SLS specifically on robotics and armed conflict.) (more…)

Technology marches on, and here we have a demonstration video, on YouTube and Wired’s Dangerroom, showing how a flying beetle can be implanted with miniaturized neural electrodes that allow the human operator to stimulate muscles that cause it to fly to the right or left.  The applications to the battlefield, counterterrorism, etc., are obvious.

These little cyborgs will eventually, I presume, be deployed, first for intelligence gathering at both the tactical level of, for example, urban battlefields.  Once a way is figured out to load them with a camera or, perhaps, utilizing their own visual inputs, they can be used to figure out who’s the bad guys in an apartment or building.  The possibilities for discriminating targeting go up  lot.  Later, someone might figure out a way to attach a little bomb, so fly up to target, have a human operator make a positive id and then boom.  There’s a strategic use of these cyborgs – to gather intelligence using thousands and thousands of these all processed through a central computer to help identify where terrorists are training or where bin Laden is located or many other surveillance tasks that cannot be accomplished now that everyone knows not to put things where they are visible from satellites.

So says the headline of a WSJ news article today (Monday, August 24, 2009, B1, by August Cole), noting that unmanned aircraft – drones such as the Predator to us civilians, although the Pentagon seems to prefer UMV – are transforming not just the military, strategic as well as tactical considerations, but defense contracting.  (PopSci ran a story a little while ago on the training of UMV pilots as well.)  The WSJ article notes that the administration’s fiscal 2010 defense budget request “includes approximately $3.5 billion for unmanned aerial vehicles.”  The demand is robust enough that the Pentagon is reaching beyond the contracting behemooths such as Lockheed and Boeing to smaller manufacturers, such as General Atomics Aeronautical Systems, Inc., which makes Predators.  (General Atomics, GA, is privately held and so there isn’t stock price information, but it’s an interesting company overall.  I would guess, without knowing, that its private equity investors are happy indeed.)  The WSJ article describes some of the basic economics of manufacture, operation, costs, personnel and training costs, etc. of the drones ….

What are the implications of robotic technology on the battlefield if robots were capable of developing self-evolving capacities to deceive, lie, and cheat?  What are the implications of that for battlefield robotics?  PopSci gives a report of a Swiss robotics experiment with evolving generations of robots engaged in a search-for-yummy-food task but with a twist – an in-built desire to hide and hoard the food source for oneself.  (I think I was too obscure before; let me update by adding … on the battlefield, you might be considered, as a target, the equivalent of really yummy food!)