Search and Rescue and the Spread of UAVs

by Kenneth Anderson

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.

Ken’s Not-Yet-Response re Drone Warfare and Targeted Killing and Professor Alston’s Report

by Kenneth Anderson

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…)

Drones and the CIA and Charlie Savage’s NYT Article

by Kenneth Anderson

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…)

How the White House Fell in Love with Drone Warfare

by Julian Ku

Interesting article from Reuters on the growth of drone warfare under the Obama administration.  One interesting note: drone attacks are being contemplated for Yemen, Somalia, and even against pirates.  Also, the key explanation for the Drone Wars appears to be the legal problems created by capturing, interrogating, and detaining individuals.

Some current and former counterterrorism officials say an unintended consequence of these decisions may be that capturing wanted militants has become a less viable option. As one official said: “There is nowhere to put them.”

A former U.S. intelligence official, who was involved in the process until recently, said: “I got the sense: ‘What the hell do we do with this guy if we get him?’ It’s not the primary consideration but it has to be a consideration.”

The NYT Belatedly Notices Targeted Killing Debate

by Julian Ku

The NYT’s Scott Shane notes that “The Obama administration’s decision to authorize the killing by the Central Intelligence Agency of a terrorism suspect who is an American citizen has set off a debate over the legal and political limits of drone missile strikes….”  Uh, duh.. There was even a whole congressional subcommittee hearing about it, and lots of blogging! (see related posts below)  Still, the article does provide a more detail on the Obama Administration’s attitude toward U.S. citizens it has targeted for killings:

Administration officials take the view that no legal or constitutional rights can protect Mr. Awlaki, a charismatic preacher who has said it is a religious duty to attack the United States and who the C.I.A. believes is actively plotting violence. The attempted bombing of Times Square on May 1 is the latest of more than a dozen terrorist plots in the West that investigators believe were inspired in part by Mr. Awlaki’s rhetoric.

“American citizenship doesn’t give you carte blanche to wage war against your own country,” said a counterterrorism official who discussed the classified program on condition of anonymity. “If you cast your lot with its enemies, you may well share their fate.”

This is tough talk that wouldn’t have been out of place in the much-maligned Bush administration.  But as we’ve noted, the domestic and international law relevant here is immensely complicated and hardly clear cut.  I agree that U.S. citizenship doesn’t give you carte blanche to wage war.  But, as one critic quoted in the article points out, it does protect you from being wiretapped without a warrant or interrogated without your Miranda rights.  So isn’t it weird that the U.S. Constitution doesn’t give you due process before you die in a drone attack, away from any conventional battlefield that is launched by an non-privileged combatant?

Obama Makes a Funny (But Somewhat Creepy) Joke About Targeted Killings

by Julian Ku

At last night’s White House Correspondents Dinner, President Obama cracked a funny joke about his administration’s use of Predator Drones for targeted killings.  From the Politico:

— “The Jonas Brothers are here! … Sasha and Malia are huge fans but boys don’t get any ideas. I have two words for you: Predator Drones. You’ll never see it coming.”

Ha, ha, ha…er, on second thought, is it just me, or is this joke a little creepy?

Congress and the ACLU Begin Pushback on the Legality of Targeted Killings

by Julian Ku

Our own Ken Anderson joined a number of other law profs, including Prof. David Glazier, in testimony today before the National Security and Foreign Affairs subcommittee of the U.S. House Committee on Oversight and Government Reform to discuss, what else, the legality of U.S. targeted killings policy. Wired has a nice report summarizing the testimony, and the issues are already familiar to the folks on this blog.  Meanwhile, the ACLU weighs in today with a tough public letter challenging President Obama’s targeted killings policy on legal grounds.  The ACLU’s analysis appears to concede that targeted killings may be used (subject to law of war limits) within recognized conflict zones.  But outside of those zones,

…the use of lethal force by the United States is strictly limited by international law and, at least in some circumstances, the Constitution. These laws permit lethal force to be used only as a last resort, and only to prevent imminent attacks that are likely to cause death or serious physical injury. According to news reports, the program you have authorized is based on “kill lists” to which names are added, sometimes for months at a time, after a secret internal process. Such a program of long-premeditated and bureaucratized killing is plainly not limited to targeting genuinely imminent threats. Any such program is far more sweeping than the law allows and raises grave constitutional and human rights concerns.

The letter goes on to draw a distinction between detention of enemy combatants and targeted killing of them that I don’t find all that persuasive.  But taken together, the Congressional interest in these issues and the ACLU letter makes a cogent legal and policy case against targeted killings outside of Afghanistan and Iraq.  The letter may be the first sign that President Obama (and Clinton and Koh) will no longer be getting a pass on their war on terrorism policies.

What About Congress? The Washington Post Endorses Inherent Executive Power to Use Military Force

by Julian Ku

Following up on Ken’s post about the Washington Post editorial endorsing Harold Koh’s legal defense of targeted killings, it is worth analyzing the passage Ken quoted one more time, but this time from a domestic U.S. constitutional perspective:

Mr. Koh’s reaffirmation of the right to self-defense — even outside the confines of an existing armed conflict — is particularly important. The Authorization for the Use of Military Force(AUMF) after Sept. 11, 2001, empowered the president to pursue those responsible for the attacks, including al-Qaeda and the Taliban. That authority may wane with time. But the right of self-defense is inherent and may be exercised against current and future enemies that pose an imminent threat, including those operating outside of traditional combat zones.

What is fascinating about this passage is that the Post seems to endorsing a general authority of the President to use deadly force against “current and future enemies that pose an imminent threat,” whether or not those enemies fall within the Authorization for the Use of Military Force. The Post seems to be endorsing an “inherent” right of the President to target enemies, with or without congressional authorization.

There was a time when the debate over the use of force by the U.S. government focused almost exclusively on a domestic separation of powers conversation. U.S. legal scholars and elites would engage in debates about when and whether Congressional authorization is required before the President can use military force against U.S. enemies.  I think that this debate is basically over, thanks to the Obama Administration.

Predators over Pakistan …

by Kenneth Anderson

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.