Huffpost WorldPost
Tom Ginsburg Headshot

Rules for Drones

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The Obama administration has recently announced that it is developing a legal framework for drone warfare. It is now technically possible for a "pilot" sitting behind a computer terminal in Nevada or Virginia, with a few keystrokes, to eliminate virtually any person on the planet. But simply because it is technically possible does not make it a good idea, or a legal one. What legal principles should govern the use of drones to kill people?

Changes in technology often run ahead of the law that governs them, and drones are no exception. In general, soldiers on the battlefield are provided with an exception to the normal rules against killing. Drone operators, on the other hand, are not physically present on a battlefield; in some cases they are not even soldiers, but CIA agents. Why should we allow them the privilege of remote-control killing?

A basic first step must be to show that the normal rules of criminal law enforcement are insufficient to deal with the targeted individuals. The general rule in society is that those who commit wrongs can be subjected to detention and punishment, but only after a judicial process. A judge must approve an arrest warrant in advance, unless there is no opportunity to obtain one. This is to protect people from being wrongly targeted by the state.

But most of the targets of drone attacks are found in areas of the world where state authority is weak or non-existent, so requests for extradition are likely to be unsuccessful. In the case of American citizen Anwar Al-Awlaki, killed by a drone in 2011 on Obama's orders, the U.S. asserted that he had foregone the privilege of a defense in Court. Regardless of the merits of this position, the basic principle that law must be used before war should remain intact.

If law enforcement procedures are truly impossible to implement, it will be challenging to ensure that the targets of drones are in fact appropriately identified. Who should be subject to this extrajudicial killing? Extrajudicial killing outside the battlefield is generally illegal under international law, for good reason. So it is essential for the administration to show that the persons being targeted are analogous to battlefield combatants. Simply because law is unavailable does not automatically mean that a person can be killed: there must be a demonstration that the privilege given to combatants to take another's life is appropriate.

Here is where the determination that we are at war with a particular group becomes important. The UN Special Rapporteur on Extrajudicial Executions, Professor Philip Alston, expressed doubt that we are actually in a state of armed conflict with al Qaeda, but the U.S. disagrees. Just last week, however, Pentagon Counsel Jeh Johnson acknowledged that the day will come when the "war" is over, and a different legal paradigm will be needed.

Even if the U.S. position that we remain at war is accepted, there is a further requirement to show that the person being targeted directly participated in armed conflict against the United States. But how are we to know this is the case when the persons are not on a traditional battlefield?

The Israeli Supreme Court confronted these issues with its decision on targeted killings in 2006. The Court required four elements. First, the targeting forces have a duty to ensure that the target is who they say he is, and to demonstrate direct participation in the military conflict. Second, the targeted killing must be necessary, in that no alternative means of obtaining the suspect is feasible. This would, presumably, require an attempt to use normal extradition channels or to capture the target alive. Third, the basic laws of proportionality should be observed with regard to collateral casualties. A killing that will inflict unnecessary harm to innocent civilians should not be allowed. Fourth, the state must conduct an independent investigation after the fact for every targeted killing, to ensure that the above guidelines were met.

This framework is an excellent starting point. It accepts that, in some cases, targeted killings of the worst enemies will be appropriate. But, it also provides a standard to evaluate whether a particular killing is consistent with our traditional aversion to unrestricted state power. Unfortunately, the Obama administration has not revealed its internal process for making decisions on who gets targeted. Their argument is, in essence, "trust us." Many are willing to do so. But in the second decade of the war on terror, there is no excuse for not bringing the ultimate exercise of state power within our tradition of the rule of law.