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The Legal Case for Robot War Gets Complicated

Danger Room by Nathan Hodge Photo by Noah Shachtman

The legal debate over America’s undeclared drone war in Pakistan is getting sharper: In a congressional hearing yesterday, a prominent law professor suggested that drone operators could, in, theory, be liable to criminal prosecution for “war crimes.”

It’s just one of the many sticky legal issues raised by observers of the CIA’s (and the military’s) lethal drone operations. “This is not an academic debate,” Shane Harris of National Journal noted earlier this year. “Quietly, and with little apparent notice from the Obama administration, a broad range of important international actors are raising fundamental questions about the legality of drone strikes, particularly in countries where the United States does not have a military presence.”

Kenneth Anderson, one of the law professors involved in the discussion, stated in his testimony (.pdf) that the one of the main challenges to drone campaign comes from the “international law community” – an influential group of players that includes UN investigators, human-rights activists and other critics.

In in our comments section, Anderson elaborated a bit more on this point. “I regard the participation of the CIA in this activity as well as covert action under orders from the President and as an exercise in legitimate ’self-defense’ in international law as both legal and, from a political and policy standpoint, a very good thing,” he said. “The questions I raised were not from a belief that it was illegal or a bad idea, but that underlying many of the objections — whether from academics, activists, UN officials, and others — is a fundamental objection to the idea of a covert civilian service that in under certain circumstances uses force. I think that covert civilian service is lawful and a good idea – but underlying many people’s objections is an unstated premise that it is not.”

In an e-mail, Danger Room pal Peter Singer — who testified in the first hearing on this subject — amplified another point: The drone war has blurred the traditional lines between contractors, uniformed military and intelligence personnel. “Again, the problem isn’t so much bad people in these roles or malicious intent, but that we are really flouting the original vision of dividing out roles in realms of policy and war, such as how Title 10 [the military] and 50 [intelligence agencies] were to be something different, and that difference used to be very important both politically and legally,” he said. “Whether its doublehatting the NSA and military cyber command, the CIA recreating the 21st century equivalent of the force of B-26s it not so ‘covertly’ used in the Bay of Pigs, or the rise of ‘government owned-contractor operated’ weapons platforms, there is a lot of strange morphing of uniformed military, civilian intelligence, and private business roles going on.”

Under the Obama administration, the drone war in Pakistan has steadily escalated; CIA Director Leon Panetta has described the Predator strikes as  “the only game in town” in terms of trying to disrupt al Qaeda operations and decapitate its leadership. But the tangle of legal and bureaucratic issues created by the campaign promises to have very real political consequences.

As Mike Innes of Current Intelligence writes Danger Room: “Intelligence and SF/SOF [special operations] targeting in general is a surprisingly ordinary, bureaucratic process. Can’t imagine there’s all that much that’s fundamentally different about the drones approach. If I had to guess, there’s a long chain of individuals who take small decisions that add up to one big one. Everyone’s responsible, so no one’s responsible … which doesn’t mean someone somewhere won’t be covered in sh*t once it hits the fan over all this.”

April 29, 2010 Posted by | CIA, Civilian Contractors, Legal Jurisdictions, Private Military Contractors, Wartime Contracting | , , , , , , | Leave a comment