Drone Attacks; Legal or Not

Drone Attacks; Legal or Not

Al Ritter 

To answer a question such as this we must clarify the terms. Very different situations may require different answers. Because of a recent declaration by Attorney General Eric Holder on lethal drone use within the confines of American airspace, a rather spirited discussion has been launched by Sen. Rand Paul (R-KY) as to the legality of such use, during the senate confirmation hearings on nominee John Brennan.

To determine the legality of such lethal attacks by drone one must first ask in which country the theoretical drone is flying. If outside the United State air space we have two different scenarios we must consider, we must consider international law and also the Geneva Convention that governs warfare.

The following research project Cornell University of Law spells out such scenarios on international law and touches on a little of the Geneva Convention. Their position is that of total legality under circumstanced spelled out.

www.lawschool.cornell.edu/research/ILJ/upload/Orr-final.pdf 

The opinion of Cornell University is not however mirrored in this article which brings up the point on the use of Uranium as a weapon as being against the Geneva Convention.

“The drones “Hellfire Missiles” are themselves horrendous to say the least and are described as follows:
The missile creates a pressure wave which sucks the air out of victims, shreds their internal organs and crushes their bodies. The explosion is described as “Thermobaric” and is known to contain depleted uranium. British pilots in Afghanistan have complained about their inaccuracy and the innocent civilians that have died as a result of their usage.

Although the British military does have its own smaller drones we do cooperate with the US and purchase the US-manufactured General Atomics Reaper for the RAF. This drone can carry four Hellfire missiles, two 230kg (500lb) bombs, and 12 Paveway II guided bombs. It can fly for more than 18 hours, has a range of 3,600 miles, and can operate at up to 15,000 metres (50,000ft). I would again stress that many such weapons contain Depleted Uranium and are thus classified as Weapons of Mass Destruction (WMD) and are in violation of the Geneva Convention by being indiscriminate killers.”

Source:  http://eyreinternational.wordpress.com/2011/12/26/drone-usage-on-the-increase-but-do-they-breach-the-geneva-convention/

Another opinion that doesn’t seem to mirror Cornell University’s is that the drones are exclusively manned by CIA employees and as such are not considered (members of the military) and as such are not allowed under our U.N. Charter and creates a dark area of conflicted operation under the Geneva Convention.

“According to the Geneva Convention, members of regular armed forces - involved in conflicts - are the only persons who may be considered lawful combatants and authorised (sic) to use lethal force. If the operators are members of the US or Pakistani military, they acquire this status. But the Central Intelligence Agency (CIA) as it were is not a military force. And since the CIA is not a military force, presumably the drone attacks constitute extra-judicial killing. But that point will be covered in the second corollary.

Military operations inside Pakistan do pose international legal problems, but it’s not because of the drones. It’s because the United States is technically not at war with Pakistan and because U.S. drone operations in Pakistan are being conducted by the CIA rather than the armed forces. The former violates the U.N. Charter; the latter arguably violates the rules on lawful combat in the Geneva Conventions. These dynamics create legal problems for U.S. military operations in Pakistan whether they are carried out by drones or by SEAL teams on the ground, as in the Abbottabad raid that killed Osama bin Laden.

[t]he real issue is not drones, but the summary execution of suspected criminals without evidence or trial, in complete secrecy, at perhaps an unacceptable cost to innocent lives. Whether this is happening with or without the consent of the Pakistani or Yemeni government is irrelevant. Whether it is being conducted by the CIA or by the U.S. military is irrelevant. Whether it is occurring with remotely piloted drones, manned aircraft, special operations forces, or death squads is irrelevant. What matters is whether extrajudicial execution is or is not the best way to protect citizens against terrorist attacks.”

Source: http://www.lawfareblog.com/2011/06/unsound-criticism-of-the-legality-of-drone-strikes-at-foreign-policy/

The DOJ and Eric Holder specifically hold the opinion that drone attacks in Pakistan and Afghanistan are legal in all court settings because they do so under the sovereign permission of those two governments. Ever increasing civilian casualties have continued to strain those relationships and may eventually force this program into retirement. The government contends that drone attacks are considered police actions and not that of the attack of enemy combatants.

If this program were to stop on foreign soil tomorrow, the government would seek to repurpose these aircraft into another mission, which brings us to the discussion that Rand Paul had on the Senate floor 3/6/2013. When questioned as to using drones in a lethal capacity within the confines of our own country Attorney General Eric Holder said this:

“Attorney General Eric Holder has confirmed in writing that the president can kill U.S. citizens in a drone strike on U.S. soil, in “an extraordinary circumstance.”…………March 5, 2013”

Before John Brennan’s confirmation hearings, he was slightly more guarded in his reaction to the general use of lethally equipped drones. One has to wonder what his personal opinion is on the use of lethal drones within our own borders. Will he merely parrot the words of Eric Holder, or will he have some profound statement of his own. "For many people -- in our government and across the country -- the issue of targeted strikes raised profound moral questions," he said. "It forces us to confront deeply held personal beliefs and our values as a nation."

"If anyone in government who works in this area tells you they haven’t struggled with this, then they haven’t spent much time thinking about it," Brennan said. "I know I have, and I will continue to struggle with it as long as I remain involved in counterterrorism."…….John Brennan in a speech on 4/30/2012

This administration is no stranger to the contempt they have for the Constitution of the United States which clearly states that in Article I Section 9 …. “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

And in Article III Section 2 where is says…. “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

Further Amendments as follows:

Amendment V …… “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Amendment VI……… “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

Amendment VIII……. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 

All these Constitutional mandates will be ignored under Eric Holder’s opinion of the legality of drones on our soil and specifically “summary executions” without trial.

Some conservatives yesterday were extremely happy that Sen. Rand Paul held a filibuster on the Senate floor about the use of drones on our soil. Unfortunately his vitriol was misplaced. He has filibustered John Brennan’s because of something Eric Holder said, not what John Brennan had done in the past. His filibuster will go by the wayside in the next few days and the situation will continue.

In my opinion Sen. Paul is upset because the Congress gave unfettered control for the use of drones in the first place and now he seeks to somehow “put the cat back in the bag.” Congress voted for the use of drones in the first place without putting specific controls on them.

Sen. Paul use of Senate Confirmation hearing will do NOTHING to change the law only forestall John Brennan’s appointment.

Rand Paul is trying to do what the President has been so successful at for 4 years……controlling public opinion. Unfortunately public opinion means nothing in this debate. To change the course of the use of drones Congress either has to enact a law regulating its use or the Supreme Court will have to rule on domestic use of drones.