Rule of Law in the Age of the Drone: Requiring Transparency and Disqualifying Clandestine Actors — The CIA and the Joint Special Operations Command

79 Pages Posted: 21 Nov 2017

See all articles by Thomas M. McDonnell

Thomas M. McDonnell

Elisabeth Haub School of Law at Pace University

Date Written: November 16, 2017

Abstract

Since shortly after 9/11, weaponized drones have become part of the fabric of United States policy and practice in countering Islamic terrorist organizations and personnel. Although many diplomats, UN officials, and scholars have criticized the widespread use of this weapon system for “targeted killing,” drones are here to stay. But how much investigation and oversight must a democratic country carry out over such a program, and more critically, how can a country do so effectively when the Executive has handed primary responsibility for drone targeted killing attacks to its clandestine forces, the Central Intelligence Agency and the Joint Special Operations Command?

In a confrontation with extremely violent terrorist organizations, the balance between secrecy and transparency is not easily struck. But compiling, in essence, a hit list and telling our secret agents to employ from the safety of a control room a weaponized drone to target individuals on the list demands greater openness. In addition, the line between lawful killing of combatants and extrajudicial taking of life grows increasingly thin, particularly when the state carries out such killings outside of armed conflict zones. A democratic nation and a superpower needs to do more than claim it is in the right and that it complies with international law — that nation must show that it is doing so.

Since they keep their operations and the effects of all their operations secret, the CIA and JSOC cloud the explosive tactic of targeted killing. Consequently, they literally keep the American public and the world community in the dark about deliberate, institutional taking of life. Such a program of secrecy, with little known accountability, leads to speculation about who and why selected persons were killed and to what extent, if any, civilians were included in their number. Furthermore, such secrecy deprives the United States of the opportunity to show it is complying with applicable international humanitarian law and human rights law.

Because terrorist organizations, to a great extent, operate underground in many countries and because they employ guerilla tactics and can inspire lone wolves anywhere on the globe, little chance exists that the U.S. military alone can eliminate the threat of terrorism. The United States and its Western allies need the help of Muslim countries, Muslim governments, and Muslim communities around the world to stop those extremists who would do us harm. Using our secret forces to engage in such killing may, however, undermine the moral authority of the United States, especially in the eyes of Muslims. Such secrecy suggests we have something to hide. Using the CIA and JSOC, on top of the perceived Muslim immigration bans, can only add to distrust of the United States in the Muslim community, whose cooperation is crucial to eliminating the extremists’ threat.

Thus, the United States must take away from the CIA and JSOC the responsibility to conduct drone targeted killing attacks and give that authority to more transparent armed service commands.

Keywords: International Law, Law of Armed Conflict, International Humanitarian Law, Human Rights, Terrorism, Counter-Terrorism, Drones, Unmanned Aerial Vehicles, Targeted Killing, Signature Strikes, Transparency, Secret Targeted Killings, Central Intelligence Agency, Joint Special Operations Command

JEL Classification: K33

Suggested Citation

McDonnell, Thomas M., Rule of Law in the Age of the Drone: Requiring Transparency and Disqualifying Clandestine Actors — The CIA and the Joint Special Operations Command (November 16, 2017). University of Miami Law Review, Vol. 72, 2017. Available at SSRN: https://ssrn.com/abstract=3074139

Thomas M. McDonnell (Contact Author)

Elisabeth Haub School of Law at Pace University ( email )

78 North Broadway
White Plains, NY 10603
United States
(914) 422-4381 (Phone)
(914) 422-4261 (Fax)

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