Drone Wars, Without Any Rules

Drone Wars, Without Any Rules
By: Dan Froomkin
Date: March 24, 2010

The CIA's extensive use of unmanned drones to kill alleged terrorists in Pakistan and elsewhere is arguably against international law and raises the possibility that top U.S. officials will someday be tried at the Hague for war crimes, a law professor told a congressional oversight panel on Tuesday.

Despite the rapidly increasing use of drones in warfare and anti-terrorism -- and the legal and ethical issues their use raises -- the U.S. government has never publicly advanced a legal justification for sending its drones on targeted killing runs overseas; up until Tuesday, Congress hadn't even held a single hearing into the question.

Kenneth Anderson, an American University law professor, told the panel he believes there is legal justification for the U.S.'s use of drones, not just by the military but by the CIA, under the doctrine of self-defense.

But, he said, government lawyers "have not settled on what the rationales are, and I believe that at some point that ill serves an administration which is embracing this. Now, maybe the answer is: This is really terrible and illegal and anybody that does it should go off to the Hague. But if that's the case, then we should not be having the president saying that this is the greatest thing since whatever. That seems like a bad idea."

As HuffPost reported last week, the ACLU has filed a freedom of information lawsuit demanding that the government disclose the legal basis for its use of unmanned drones to conduct targeted killings overseas, as well as the ground rules regarding when, where and against whom drone strikes can be authorized, and the number of civilian casualties they have caused. The initial response from the government was that some public legal justification was, indeed, forthcoming.

But many questions about drones aren't just unresolved, they've never even been asked. Rep. John F. Tierney (D-Mass.), chairman of the House oversight committee's national security subcommittee, mentioned some of them in his opening statement:

[I]f the United States uses unmanned weapons systems, does that require an official declaration of war or an authorization for the use of force?

Do the Geneva Conventions -- written in 1949 -- govern the prosecution of an unmanned war?

Who is considered a lawful combatant in unmanned war -- the Air Force pilot flying a Predator from thousands of miles away in Nevada, or the civilian contractor servicing it in on an airstrip in Afghanistan?

Then there are questions about the civilian casualty rate; about how the U.S. maintains superiority in drone warfare; what happens when the bad guys get hold of them; and how do you defend against them.

Rep. Bill Foster (D-Ill.) raised the concern that drones might make some of the Pentagon's big-ticket purchases look less wise.

"What I'm worried about is, we're at some point going to be asked to defend Taiwan, you know, with a set of aircraft carriers, and all of sudden, 10,000 Chinese-manufactured mass-produced drones will be coming at us," Foster said. "And it'll be game over. "

And just wait until they start thinking for themselves.

"If trends in computer science and robotics engineering continue, it is conceivable that autonomous systems could soon be developed that are capable of making life and death decisions without direct human intervention," said John Edward Jackson, professor of unmanned systems at the U.S. Naval War College.

"Would a self-conscious and willful machine choose its own ends, and even be considered a person with rights?" asked Edward Barrett, director of research for the Stockdale Center, the U.S. Naval Academy's ethics and military policy think tank.

The troubling questions and scenarios were coming from a panel that was, nevertheless, largely pro-drone -- to the consternation of a handful of protesters in the audience.

The panel's head cheerleader was Michael S. Fagan, who chairs the Advocacy Committee for the Association for Unmanned Vehicle Systems International.

Fagan said there is "much more" that drones can do to protect the nation. He urged the Federal Aviation Administration to allow drone-makers access to more airspace and spoke of "other useful applications of unmanned technology" such as "civil unrest".

Peter W. Singer, director of the 21st Century Defense Initiative at the Brookings Institution, noted the the U.S. government isn't the only one using drones. American border vigilantes have used them, as did Hezbollah during Israel's 2006 invasion of Lebanon, and, most recently, a gang of thieves in Taiwan.

Barrett, the ethicist, worried that drones make war too easy. "Favorable alterations to pre-war proportionality calculations," he said, could "reduce the rigor with which non-violent alternatives are pursued, and thus encourage unnecessary -- and therefore unjust -- wars," he said.

He also said the homeland could be at risk if, on the battlefield, there's "no one for the enemy to shoot at." He explained: "You don't want to go just to unmanned, or they're coming here."

Several clear distinctions emerged between the military's use of drones and the CIA's. One of those distinctions is that we know almost nothing about what the CIA is really doing, and how. "We do know about the military's use of these systems, and they've shown... exceptional respect for the laws of war," said Singer. "My concern is with the CIA strikes."

Instead of trained military strategists, it's intelligence analysts planning air-war campaigns, and CIA lawyers deciding on when to launch;. Or maybe it's not even the CIA itself, but its contractors. Who knows?

Are there any limits? How many civilian casualties have there been? Does what they're doing even make sense?

"We may be sucking ourselves into a game of whack-a-mole," Singer said. "Are we unwittingly aiding their recruiting?"

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