Legality Vs Morality: The Law Allows the Use of Drones, But Should We Do It?




Congress has the classified version of the Obama Administration’s Drone memo. Congress appears less concerned about the salient questions surrounding the use of Drones now that they have the memo.  In part, this is about transparency, but it’s also possible that the complete memo is as legally sound or more legally sound than the legal basis outlined in the White Paper.

NBC reported:

Reversing its course, the White House will now brief members of Congress on the legal justifications for drone strikes against U.S. citizens, an administration official said Wednesday night.

“Today, as part of the president’s ongoing commitment to consult with Congress on national security matters, the president directed the Department of Justice to provide the congressional intelligence committees access to classified Office of Legal Counsel advice related to the subject of the Department of Justice White Paper,” the official said.”

The way Obama handled the Drone Memo illustrates an important difference between his Administration and the Bush administration when it comes to security matters that raise difficult moral and legal questions.

Congress has the Memo that provides the Obama Administration’s legal basis for using Drones.  We have a redacted version in the White Paper. Compare that with the Bush Administration on torture.  For the duration of the Bush Administration, we were left with “it’s legal because we say so” despite the fact that we know torture is both wrong and illegal. It wasn’t until the Obama Administration released the torture memos that we had a chance to evaluate the flawed legal “reasoning” behind the Bush Administration’s torture program.

During his confirmation hearing, John Kerry said:

“President Obama and every one of us here knows that American foreign policy is not defined by drones and deployments alone. We cannot allow the extraordinary good that we do to save and change lives to be eclipsed entirely by the role that we have had to play since September 11th, a role that was thrust upon us.”

War is the ugliest business around.  Now, we’re using unmanned aircraft, known as drones, the legal basis for the drones is being questioned. We should have that discussion.

Using unmanned aircraft to kill people brings with it serious issues – many of which came the forefront since the white paper outlining the legal basis for using drones against Al-Qaeda was released on Monday.

We should be concerned about the precedent this sets for future administrations.  However, we should also be aware that the rules of war allow for things that we would find unconscionable on a moral and emotional level.

Earlier this week, the DOJ released a White Paper, which is reportedly different from the Memo.  If the White Paper provided any legal basis to use drones against Americans other than those who are high level operatives in al-Qaeda  or its allies, I would gladly join the critics.  I suspect that if the Memo was on less solid ground than the White Paper we would have heard some more hard hitting questions during John Brennan’s confirmation hearing today.

Let’s begin with the claim that this is about coming after Americans without due process. First of all, the White Paper restricts using drones to attacks on a high ranking operative with Al-Qaeda or its allies.  Second, the legal basis is solid, in that it applies national and international law, ranging from the Hague Conventions of 1907 (which are part of the legal framework for the rules of war) to recent court decisions.

From page 8 of the White Paper.

“An operation consistent with the laws of war could not violate the prohibitions against treachery and perfidy, which address a breach of confidence by the assailant (See e.g. Hague Convention IV, Annex, art. 23(b), Oct 19, 1907, 36 Stat. 2277, 2301-02 (“[I]t is especially forbidden . . . [t]o kill or wound treacherously individuals belonging to the hostile nation or army . . . . “)  These prohibitions do not, however categorically forbid the use of stealth or surprise, nor forbid attacks on identified individual soldiers or officers.  See U.S. Army Field Manual 27-10, The Law of Land Warfare, Para. 31 (1956) (article 23(b) of the Annex to the Hague Convention IV does not “preclude attacks on individuals soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or else-where”).

In plain English, the Army Field Manual 27-10* commentary on article 23 (b) of the Hague Convention IV of 1907**  Article 23 (b) says that we can attack people who are part of an enemy force anywhere.  The Hague Convention has been law for over 100 years.  Moreover the Army Field Manual 27-10, reaffirmed it in 1956.

Unlike the Bush administration’s justifications for torture by rewriting or dismissing established legal principles, the White Paper relies on solid legal principles.

There is a constitutional basis to use force against a U.S. citizen who is a part of enemy forces (as per Hamdi, 542 U.S. 507)

The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident [s] of war.” Ex parte Quirin, supra, at 28, 30.

The White Paper acknowledges that while U.S. citizens are protected under the Due Process Clause when they are abroad, U.S. citizenship doesn’t provide constitutional immunity from attack if they are a leader of an enemy force.

“The Department assumes that the rights afforded by Fifth Amendment’s due Process Clause, as well as the Fourth Amendment, attach to a U.S. citizen even while he is abroad.”  See Reid v. Covert, 354 U.S. 1, 5-6 (1957) (plurality opinion); United States v. Verdugo-Urquidez, 494 U.S. 259,269-70 (1990); see also In re Terrorist Bombings of U.S. Embassies in East Africa; The U.S. citizenship of a leader does not give that person constitutional immunity from attack. (my emphasis)

In other words, this is about going after senior level operatives in Al-Qaeda and its allies.

If you are a senior operative in Al-Qaeda or its Allies, you can be targeted.  If you are both a senior operative in Al-Qaeda or one of its allies and you are an American citizen, the constitution does not give you a special immunity from attack.  However, if you are an American and you are not a senior operative in Al Qaeda or its allies, the White Paper wouldn’t allow for you to be attacked by a drone.

This begs the question on what basis may someone be designated a part of the enemy forces and who gets to make that decision.

One point of concern lies in the fact that “an informed, high-level official of the U.S. government has the authority to decide who fits the criteria.” That could be hundreds of people. While they do have to follow criteria, the fact remains a lot of people would qualify to make this call.

The criteria itself is extensive.

  1. The Individual must pose an imminent threat to the United States. Imminent threat, as understood in the White Paper is not an unusually broad interpretation of this legal concept. It means that someone can be in the process of attacking the U.S. or its interests, but it can also mean someone who is continually planning  to attack the U.S.
  2. The individual must be a senior operational leader of Al-Quada or
  3. The individual must be a senior operational leader of an associated force (ally) of Al-Quada.
  4. An attack on the individual cannot violate the U.S. Constitution.
  5. Capture is infeasible.
  6. The United States continues to monitor if capture is feasible. (my emphasis)
  7. The Operation is conducted in a manner consister with the four fundamental principles of the laws of war governing force, which are: 1. Necessity 2. Distinction 3. Proportionality 4. To minimize suffering.

In other words, this is not a blank check, again discrediting the claim that Obama is coming after innocent Americans with drones.  Moreover, the White House is relying on established legal principles.

Of course, the Memo itself may contain additional criteria and it may contain other provisions. But, based on what we do know, there is a legal basis to use drones as intended.

I have serious concerns about the likelihood that John Brennan is among that 100 people qualified to make these assessments.  There may be others as well.

I remain concerned about the precedent this sets.  While the White Paper establishes stringent criteria and limits the use of drones, the fact remains that future administrations may use this to justify a broader use of drones.

Moreover, this would set a precedent for other countries, and perhaps Al-Quada.  This is one of those issues in which the law allows it, but we may ask should we do it?

* U.S.Department Of The Army, Field Manual 27-10 The Law of Land Warfare, July 1956. Page 17, para. 31.

** Documents On The Laws Of War Second Edition, ed. Adam Roberts ad Richard Richard Guelff (Oxford University Press, 1989), Page 53.

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