March 31, 2010

Legal Justification for Drone-Launched Missile Strikes

I just recently returned from a month in the Caribbean (which explains the paucity of posts in March).

While I was there, I had the opportunity to speak to a variety of audiences, including people in the host nations' media and military. In several instances, the issue of American drone-launched missile strikes in Pakistan and other countries was raised, asking what right the United States has to kill people who have not been found guilty of a crime. Many international human rights organizations and international law specialists consider them to be illegal assassinations.

Coincidentally, the Obama administration has for the first time explained its legal rationale for the strikes. I find it rather ironic that the State Department lawyer, Harold Koh, who now justifies the strikes on behalf of the Obama administration was the dean of the Yale Law School during the Bush presidency and was extremely critical of these same policies.

President Obama has dramatically increased the number of missile strikes against al-Qa'idah terrorists in Pakistan as well as limited strikes in Yemen and Somalia. These strikes have been effective in killing al-Qa'idah members as well as disrupting the group's operations. Nevertheless, the strikes have been criticized as somehow being illegal or unjust.

I am not sure why using a drone to kill the enemy is any different than using a rifle. The argument misses the point - it's okay to kill people using rifles, artillery and air strikes in Afghanistan, but not using a drone in Pakistan? One set of people have rights and another does not? They're the enemy, regardless of venue, and should be hunted down and killed whenever wherever however.

As for the Obama administration's rationale, Koh states, "The U.S. is in armed conflict with al-Qa'idah as well as the Taliban and associated forces in response to the horrific acts of 9/11, and may use force consistent with its right to self-defense under international law." He further explained that a state engaged in armed conflict or legitimate self defense is not required to provide targets with legal process before using lethal force.

Works for me.

Others are not convinced. According to Notre Dame law professor Mary Ellen O'Connell, "It really is stretching beyond what the law permits for this very extreme action, killing another person without warning, without a basis of near necessity, simply because of their status as a member of al-Qa'idah...."

Why would you give warnings to the enemy? They are the enemy, Professor - remember September 11, 2001? How much warning did the 3000 Americans have that day?

American Civil Liberties Union attorney Jameel Jaffer says he will file a lawsuit to obtain the Justice Department document laying out the full legal rationale for these strikes. Rationale for striking the enemy? Or maybe the ACLU does not consider al-Qa'idah the enemy....

They're the enemy. Where they are or how we kill them should not be an issue.