Drones, Targeted Killing, and the Law

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Presentation transcript:

Drones, Targeted Killing, and the Law Professor David Glazier Loyola Law School, Los Angeles

Outline Military drone systems Targeted killing paradigms Self–defense Armed conflict Key questions: Who can we kill? Where?

Drone Systems Raven Switchblade

Drone Systems Global Hawk RQ-4 Sentinel RQ-170

Drone Weapon Systems Predator RQ-1/MQ-1 Reaper (Predator B) MQ-9

How Armed Drones Work Remotely Piloted - not Robotic

War Powers of Congress Article I, § 8: The Congress shall have Power: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water . . .

Presidential War Powers Article II, § 2: The President shall be Commander in Chief of the Army and Navy of the United States . . .

War Powers Language To “Make War” versus “Declare War”

Lethal force outside armed conflict? Constitution/International Human Rights Law bar state killing except: Execution following criminal trial Immediate self-defense

Self-Defense Criteria “Instant, overwhelming, No choice of means, No moment for deliberation” “Imminent” threat

Armed Conflict Paradigm Permits lethal force based on “enemy status” 9/11 recognized as “armed attack” Congressional authorization for use of military force

Armed Conflict Challenges Identifying the “enemy” (group) AUMF & International law constraints

Authorization for Use of Military Force . . . the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations . . . . - Public Law 107-40 (Sept. 18, 2001) - Al Qaeda - Afghan Taliban

Hakimullah Mehsud

Tehrik-i-Taliban Timeline 2007 – Formal founding by Baitullah Mehsud - goal Muslim fundamentalist rule in Pakistan 2009 – Baituallah Mehsud killed by US drone - succeeded by Hakimullah Mehsud - 7 CIA officers killed in Afghanistan revenge attack 2010 – Attempted Times Square bombing 2013 – Shooting of Malala Yousafzai - drone killing of Hakimullah Mehsud

Armed Conflict Challenges Identifying the “enemy” (group) AUMF constraints “Associated Forces?” Identifying lawful targets (individuals within group)

Who May be Targeted? Anwar al-Awlaki U.S. citizen radical Muslim cleric? Nationality doesn’t matter “Due Process?” Capture as first priority? Anwar al-Awlaki

Armed Conflict Challenges Identifying the “enemy” (group) AUMF constraints “Associated Forces?” Identifying lawful targets (individuals within group) Combatants/Civilians directly participating in hostilities Geographic Constraints

Where May Attacks be Made? Battlefield? Conflict states and high seas Neutral states? Consent? Unwilling/unable? Imminence requirement

Pakistan Unwilling or unable to prevent abuse of territory? Consent? Separate non-international armed conflict? Outside AUMF?

Yemen and Somalia Consent/Unable to prevent abuse of territory? Congressional authorization? AQAP/al Shabaab

Will It Matter?

Why All This Really Matters Nigeria Iraq Pakistan UAE Saudi Arabia

Conclusions Drones strikes can be lawful in armed conflicts Claimed US government authority way overbroad No domestic authority to strike Pakistani Taliban/AQAP, etc. Apparent failure to respect limits on individuals targeted Attacks outside of theater of conflict Drone proliferation makes getting law right important

Questions?