The Drone – It’s in the Way that You Use it

Preventive Force: Targeted Killing and Technology, Kirsten Fisk and Jennifer M. Ramos, eds., New York University Press (Forthcoming)

Loyola-LA Legal Studies Paper No. 2015-02

27 Pages Posted: 12 Feb 2015

Date Written: February 11, 2015

Abstract

This chapter is from a forthcoming book resulting from a multi-day symposium on targeted killing hosted by the Loyola Marymount University Political Science department in April 2014. It endeavors to provide a concise, but comprehensive and objective, legal analysis of targeted killing, considering both international and domestic constitutional law authority and constraints.

It begins by assessing state authority to kill outside of armed conflict, arguing for a limited right of anticipatory self-defense, but only in response to truly imminent threats – a higher bar than that advanced by most drone proponents. It identifies other troublesome aspects of canonical drone advocacy, arguing, for example, that the operative language of the 2001 Authorization for the Use of Military Force (AUMF) narrowly limits targeting authority to the Afghan Taliban and al Qaeda core, and that claimed authority to strike members of “associated forces,” such as the Pakistani Taliban or Somalia’s al Shabaab, are unprecedented. The chapter argues that proponents generally fail to recognize limits on who can be hit within lawful target groups and that “signature strikes” are problematic in the unique factual context of the current conflicts. While acknowledging the difficulty in accurate casualty assessments, it contends that some completed strikes almost certainly resulted in excessive civilian casualties, violating the law of armed conflict’s principle of proportionality. The work also challenges the widely articulated “unwilling or unable” standard used to justify strikes in neutral third states like Pakistan, tracing its historical roots to the Caroline incident and self-defense principles, which include the latter’s imminence standard, and examines limits on state consent to killing within its territory.

Refusing to give drone critics a free pass, the chapter also contests arguments that drone employment should be limited to “battlefields,” that formal due process is required or appropriate, or that American citizens who affiliate with an adversary are entitled to any special protections. It concludes by considering the legal issues with CIA, versus military drone employment, noting that all participants in the drone debate today seem to have overlooked clear customary international law rules strictly limiting participation in aerial combat to actual military personnel.

Keywords: drones, targeted killing, CIA, war on terror, Pakistan, Yemen, law of armed conflict, international humanitarian law, signature strikes, Anwar-al-Awlaki

Suggested Citation

Glazier, David W., The Drone – It’s in the Way that You Use it (February 11, 2015). Preventive Force: Targeted Killing and Technology, Kirsten Fisk and Jennifer M. Ramos, eds., New York University Press (Forthcoming) , Loyola-LA Legal Studies Paper No. 2015-02, Available at SSRN: https://ssrn.com/abstract=2563657

David W. Glazier (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States

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