It’s a Bird! It’s a Plane! It’s a… Drone!

Thanks to Fordham Law’s Center on National Security (yes, at least one of my law school dreams has come true!), I have had an opportunity to hear a number of experts in security-related issues I probably would never have heard otherwise. One of them was Martin Chamberlain, a UK barrister, who has represented both petitioners and defendants on a variety of human rights related matters, and who has also acted as a Special Advocate on various national security and terrorism cases. The topic of the conversation was “Drones, Courts, and Foreign Policy”.

After first establishing that drones are not really different from any other type of weapon, and therefore, should not be considered in any different light than other weapons, Mr. Chamberlain got into more interesting legal issues surrounding the way drones are viewed by the British courts. Well, first off , they really are not – considered, that is. Most cases dealing with such issues have been found unjusticiable; one case that Mr. Chamberlain is currently working on may end up resulting in a decision, but that remains to be seen. Overall, although UK may in fact have significant differences in opinion with the current administration over the usage of drones in counterterrorism operations, it is loathe to admit as much publicly for political reasons, and therefore there is not much commentary to be found on such issues.

However, one avenue that the critics of UK’s alleged involvement in drone strikes have found was the possibility of pursuing a domestic criminal course of action. In essence, to draw such an accusation would mean showing that UK nationals involved in such operations are operating outside of what would be legal under domestic criminal law or international law. (Not that anyone is about to admit publicly that any UK citizens are in fact involved in anything of that nature or that the majority of UK is about to express interest in this issue). Defense to such an accusation would rest upon whether there exists a state of “armed conflict”, and whether UK is party to it. According to The Economist panel, there are no armed conflicts (under traditional international law definition) today. Although one can (and many do) argue that the definition of armed conflict should be expanded, that the policy of defining the current state of affairs as a state of armed conflict against Al Qaeda and its associates is too limiting, that counterterrorism operations  imply short-term reactionary thinking and impugn methodology rather than the motivation behind that strategy, for the time being such policy discussions are tabled or perhaps discussed, by the relevant policy-makers.

In either case, however, they lie beyond the scope of this current posting, as I found some other questions much more interesting and worthy of exploration.  An armed conflict by definition implies a military engagement on some level. The drone strikes at issue have been famously run by the CIA. The issue is, for those UK nationals engaged in helping the CIA operate those drone strikes, what level of culpability, if any, would be found should the courts decide that there is no armed conflict as there is no military engagement? Again, a reasonable argument would be that intelligence operations have been traditionally covert or clandestine, have operated in the realm of their own, and the legislatures as well as courts would not touch them or the underlying legal precepts with a ten-foot pole without a due scandal. However, what is at issue here is that such operations have been run rather publicly, US citizens abroad have been killed by presidential decree through intelligence=based operations rather than in the course of military engagement or after a procedure of criminal prosecution, and really, there is no framework in place to establish a “code of ethics” for when intelligence operations seem to take on military goals and tactics. There are overt military operations and there are covert wars. Covert wars are secretive. They take care of business without drawing attention to the actors behind the scenes. Here, for the first time, we have secret agencies operating quite openly. And that, on some level, defies public understanding. Not necessarily because people are against such agencies or their activities, though there are plenty of those as well. Not because the efficacy of such operations is in doubt (many, including Chamberlain himself, appear to think that drones are much more effective weapons, and much better at minimizing civilian deaths).

But we have organizations, whose activities are supposed to be in the realm of shadows being used as tools in the brightest light, and lawyers and laymen alike are scratching their heads. Are those agencies engaging in basically illegal activity or is their role changing as they take on quasi-military status? If the courts ever decide to grant such issues justiciability, which is not likely to happen anytime soon, (and probably for the best), a conscientious judge should find that agencies and their allies abroad, are not entirely independent entities but rather tools, implemented by their government. If any activities violating domestic or accepted international law occur, and there is no evidence of individual malfeasance, the buck stops with those who have ordered the operations. In other words, ultimately, the courts would have to conclude that the issue, at the end of the day, is still political, and leave it to the check-and-balance system to enforce compliance with the accepted norms. On the other hand, if we are to adopt the view that the role of the intelligence agencies is changing and that, in the long run, at least on some level, we should view them as partners to the traditional military institutions, our views of the current legal framework regulating both the agencies and the definitions of armed conflict should be revamped if we are ever to hope for an effective but ethical implementation of these policies.

Drones are but one area where the agencies are attracting attention, as some of their activities become more transparent and they engaged with other entities in public view. Surely, with the development of technologies, and natural evolutions of any bureaucracies, there may be more such arenas. Whatever our legislatures or courts end up deciding in the long run, the one thing must remain clear: those individuals and groups who choose to serve their countries and show loyalty to their allies must not be allowed to carry the burden of politics going awry. Should they, in good faith engage in such or other operations under the impression of fulfilling their duty, only to be scapegoated by the politicians behind such policies when something goes awry, responsibility for such failure should rest where it originated. Should such policymakers find themselves in a position of preferring to disassociate from their earlier course of action and the very tools they wielded to enforce it, hopefully the public will remember, who, at the end of the day is behind all policies, who is the creator, the preserver, and the enforcer.

I do not want to see a repetition of – yes, I hate going there, but I must – Vietnam, where, unfortunately, many soldiers, who went off to war in good faith and out of a patriotic sense of duty, were demonized as war criminals when the war went off course. I am not suggesting that any of it is likely to happen in the future, but the legal questions raised in the course of the drone discussion certainly pointed to a number of ways history might end up repeating itself if we do not, in our minds, establish clear boundaries of where we are going to go in our pursuit of justice… or enforcement of current legal frameworks, which may not be the same thing.

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