House Committee Questions Legality of Drone Strikes against Terrorists

By Matt Cover | April 28, 2010 | 6:59 PM EDT

Rear view of a Predator (Reno Air Show, 2006) (Courtesy of Carlos Ponte -- Wikipedia Commons)

( – The House National Security and Foreign Affairs subcommittee held a hearing on Wednesday to question whether using drones to kill terrorists violated international law.
A drone is an unmanned military aircraft that is remotely piloted and can be programmed to attack targets with high precision.
The panel, comprised of four international law experts, was largely in agreement that the use of drones by both CIA and military personnel to kill terrorists was legal.
One expert, Mary Ellen O’Connell of Notre Dame University Law School, said that drone use was only legal on sharply defined battlefields and only when used by the military.
“Outside of a war or an armed conflict, everyone is a civilian when it comes to the use of lethal force,” she said. “The combatant’s privilege to kill on the battlefield without being charged with a crime applies inside an armed conflict and not outside.”
O’Connell also said that “only a lawful combatant” could carry out a drone strike, arguing that even on the battlefield in Afghanistan a CIA operative or military contractor could not lawfully use a drone to kill a terrorist.
“Only a lawful combatant may carry out a killing with combat drones,” she said. “The CIA and civilian contractors have no right to do so [because] they do not wear uniforms and they are not in the [military] chain of command, and most importantly, they are not trained in the law of armed conflict.”
O’Connell further said that even if a country where there was not already an ongoing war, such as Yemen of Pakistan, gave America permission to enter its territory and kill a terrorist there, it would still be illegal because neither America nor the country in question was engaged in an ongoing war.
“The invitation has to be to participate in the armed conflict which the government of the [inviting] country is participating in,” said O’Connell. “So Yemen right now is facing insurgencies in the North and the South – it’s got two rather minor insurgencies going on right now.
“If they had asked us, the United States, to also be involved, we could use military force there on their invitation in their armed conflict,” she said.
“But what we’ve done [particularly] in 2002 in the case which we know most about, the [drone] attack was not part of any armed conflict that the Yemeni authorities were involved in,” O’Connell added.
O’Connell’s views were met with skepticism from the few members of Congress in attendance, as well as the majority of the panel, all of whom agreed that drone strikes, even outside of Afghanistan or Iraq, were legal under international law.
David Glazier with the Loyola Law School said there was “no doubt” that the United States was engaged in an armed conflict with al Qaeda terrorists around the world, arguing that the international legal principles of necessity and imminence justified the use of drones to kill terrorists in Afghanistan, Iraq, and beyond.
“I think that there’s no doubt about the fact that we are in an armed conflict,” said Glazier.
“First of all, under international law, the world community has recognized 9/11 as an armed attack and more importantly as a matter of domestic law Congress has chosen to exercise its constitutional authority to authorize the use of military force against the organization responsible for the 9/11 attack and the organizations that harbor them,” he said.
“So, it seems that as a matter of law there is no dispute that we are in an armed conflict with al Qaeda and the Taliban and that therefore allows the United States all the authority that is provided by law,” said Glazier.
Glazier, a former Naval commander, also said there was “nothing” in the rules of war that prohibited drone strikes, arguing that the ability of drones and their operators to precisely select their targets makes their use more legally sound, because they make it easier to kill only military targets, a key component of international law.
“There certainly is nothing within the law of war that prohibits the use of drones,” he said. “In fact, the ability of drones to engage in a high level of precision and to discriminate carefully between military and civilian targets than has existed in the past suggests that they are preferable to many older weapons.”
Professor William C. Banks of the Syracuse University College of Law agreed, telling the panel that international law allowed for drone strikes outside of defined battlefields.
He said the law of self-defense allowed for their use even if drones were used outside of armed conflicts.
“I don’t think that the paradigm of armed conflict is the only body of law that may apply in this setting,” he said.
“I think the law of self-defense as part of customary international law as well as the laws of the United States, the constitutional powers of the president, and the authorities that you the Congress have given to the president through the authorization of the use of military force, along with the intelligence laws I made reference to in my remarks, all have a role to play in deciding what authority the United States has to operate in those non-traditional battlefield environments,” Banks added.
Glazier argued that the battlefield could be anywhere the enemy is, not merely his home country or the country where he is based, disagreeing with O’Connell that the battlefield in the war on terrorism was confined to Iraq and Afghanistan.
“In an armed conflict, those members of the enemy’s forces who are legitimately target-able are legitimately target-able anywhere,” he said. “It is lawful for a country to conduct limited operations under a high level of necessity in countries which are not direct parties [participants] in the conflict.”
Kenneth Anderson, professor of law at the American University and a member of Stanford University’s Hoover Institution, summed up the view of the majority of the panel, saying that CIA use of drones violated neither international law nor domestic law, because it was a justifiable defense of the sovereignty and integrity of the United States.
“Finally, to be clear, the use of drones, or other use of force by civilian CIA agents in covert operations is not contrary to international law insofar as it is an exercise of lawful self-defense,” he said.
“The traditional view of the United States, as expressed in 1989 and reaffirmed today, is sovereignty and territorial integrity are very important in international law, but they cannot be used to shield transnational terrorists who have found safe haven,” Anderson added.