Politics, Economics, and the Law
All those links are good reading, and more thorough analysis than I will do at this time, when there’s not yet much new to say. But for the link-averse, here are a few of the highlights:
Killing an American can happen if the citizen is “a senior operation leader of al-Qa’ida or an associated force.” While not amorphous, that’s pretty vague. What is an associated force, exactly? That’s not defined, so I guess it’s whatever the government wants it to be.
This killing will be hunky-dory when:
Let’s talk about (1):
Who is making the decision as to whether a given American citizen is a terrorist? Oh, you know… somebody. They’ll be “informed” and “high-level.” Don’t worry about it, they know what they’re doing. Is there any oversight or review to this decision? Doesn’t seem to be, so I guess we’ll just have to trust whomever makes the call to not make any mistakes, because there’s no clear recourse available should that happen.
But hey, at least we know that should it come to this, at least we’ll know there was an imminent threat against our nation. Well… you know how sometimes you have to interpret a word liberally to make it work in context?
“Certain aspects of this legal framework require additional explication. [. . .] [A]n ‘imminent’ threat of violent attack [. . .] does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”
That’s certainly a non-traditional definition of the word.
Also, this totally wouldn’t be an assassination in violation of Executive Order 12333, because it’s an act of “national self defense” against an imminent threat. By which they mean a threat that lacks any clear evidence of its existence, any known target, or any particular time that it might occur. Also, let’s not box ourselves in… the Terrorist might not even be plotting anything at the moment, but if he’s “recently been involved in activities posing an imminent threat”, and there’s no evidence he’s turned in his membership card and gone home, we can infer that he’s still hard at it. That assumption is probably generally accurate, but when coupled with the Justice Department’s new-and-improved definition of “imminent,” it appears to open the time-frame up to such a degree as to render it basically meaningless.
“[C]apture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation. Other factors such as undue risk to U.S. personnel conducting a potential capture operation also could be relevant. Feasibility would be a highly fact-specific and potentially time-sensitive inquiry.”
Part of that sounds pretty reasonable. You can’t capture someone who cannot be reached during a given period of time. That’s just physics, and such. The country in which they reside might not want U.S. forces running around looking for the target (but naturally they’ll be fine with drones dropping bombs within their territory). And whether or not this is feasible would be fact-specific and time-sensitive, which looks a lot like a roundabout way of saying it’s just a judgment call, and one with little in the way of definite criteria. “If you can capture ’em, maybe do that, as long as it’s not too much trouble.”
And what, if anything, does it really mean that “the United States continues to monitor whether capture becomes feasible”? The three-point criteria dictate when it’s legal to bomb an American citizen, so I suppose the U.S. will continue to monitor whether capture is becomes feasible, right up until our “person of interest” is exploded?
The paper asserts that all of this is definitely legal, at one point analogizing the action of bombing a declared terrorist to a police officer shooting a dangerous suspect who’s attempting to flee the scene. For reasons illustrated on Lowering the Bar’s commentary, I don’t really think this analogy works. Another argument states, basically, that since this declared terrorist would be an American, it might be argued that killing them would be murder or manslaughter, but those terms only apply to “unlawful killings,” and since the government would be exerting “public authority” then it can’t be unlawful. In short, it would sure be illegal if we weren’t the one’s defining what illegal means. This section is long on assertions, and short on clear analysis.
The whole paper buries the reader in arguments that depend on you acceptance of either questionable propositions or the very conclusions they purport to reach.
It is being reported that NBC has acquired a Justice Department white paper which purports to provide legal justification for targeted killings (read: assassinations), using drones, of American citizens abroad.
Initial commentary suggests that some key terms used in the justification are being used in a somewhat “innovative” fashion, shall we say.
When I’ve a few moments to dedicate to it, I’ll give the memo a real read, form a semi-coherent opinion, and announce said opinion here. Yes, really. Two days, tops.
For now, you can read the memo yourself here.
(Hat tip to the Volokh Conspiracy)
I don’t care for drones on the battlefield. While it is quite possible they cut down on the number of our own military personnel getting killed and/or maimed (you will hear this referred to as “saving lives,” though the drones certainly don’t appear to be saving the lives of anyone else), I believe they create an insurmountable moral hazard.
I am no happier to have them flying around in U.S. airspace. Wired reports that there are, at present, 64 known drone bases on U.S. soil. The number of drones and bases is likely to increase, and drones are likely to proliferate widely. That there would be drones, and drone bases on American soil is interesting, but hardly shocking. The military also has a great many other vehicles, weapons, explosives, etc. on American soil. After all, where else are they supposed to put these things when they’re not being used for the intended purposes? But what uses will these drones be put to, while they’re here? Well, surveying military bases, government property, the occasional disaster zone, and maybe the odd bit of completely-totally-accidental surveillance.
“Oops, it seems we’ve inadvertently spied on you. Don’t worry, we’ll be sure to get rid of that information. Hand to God. Right after hanging onto it for 90 days to see whether we can make a legal case for keeping it, and passing it on to other government agencies if we can.”
Call me cynical, but in the present political and legal climate, I see little reason to suspect the information won’t be retained, given even the flimsiest pretense of a reason. Especially when you’ve got people such as Virginia’s Governor Bob McDonnell saying that police drones would just fantastic.
Increased safety and reduced manpower are among the reasons the U.S. military and intelligence community use drones on the battlefield, which is why it should be considered in Virginia, he says.
Indeed. It’s vital that our gendarmerie be able to enforce order with minimum of cost and inconvenience. And while police drones, at present, are extremely unlikely to act in any capacity other than tracking and surveillance, is it completely out of reason to expect them to evolve into an armed form? Not a week goes by where you don’t read about a questionable police shooting, or wrong-address SWAT raid, or somesuch event. Are police drones something we actually want?
Not that what we want matters very much. The State will exert its will when and where it cares to, so long as we react with our characteristic passivity.
Lawfare reports that Senator Rand Paul (R. KY) has introduced legislation intended to prohibit (for the most part) the use of drones for surveillance by the U.S. government. I wouldn’t bet the farm on the bill passing, but it is nice that someone in Washington is attempting to nip this in the bud.
I had begun writing this a week or so ago, and intended to devote much more time to the ethical debate over drone use. However after reading an article this evening, much of what I would say has been rendered academic, and largely moot, in light of reports that U.S. drone operators have been deliberately targeting rescuers and mourners. I’m rarely shocked, but even I find this shocking. It is appalling, illegal, and would constitute war crimes.
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And they will fight wars on our behalf.
As per this article on the New York Times’ website, it would seem the Iraqis continue to be annoyed by the presence of American drones in their skies, despite the fact that those drones now being operated by the Department of State instead of the Pentagon, or the CIA. I would imagine that this distinction is largely lost on them, and even if it’s not, they don’t generally see it as all that important. It’s probable they are also unconcerned with the distinction between official U.S. military equipment and personell, and that of the many private contractors who still remain in Iraq. We may have technically packed up and left, but we’ve hardly left Iraq to the Iraqis.
Drone warfare was also the topic of this article in ‘The Atlantic.’ Mr. Foust argues that our increased reliance on drones has political and diplomatic repercussions, and have yet to become a fully integrated part of our military and foreign policy decisions. Intead, we are relying on them, and in effect painting ourselves into a corner. This all seems fairly obvious, if you’ve been paying attention.
“As one example, drones carry inherent political costs to the regime that allows them. Among domestic populations, drones are almost always unpopular, as they represent a distant and unaccountable foreign power exercising the right to kill them at will.”
When discussing the political cost to regimes that allow foreign drones to operate within their territory, I would hasten to add that not only does this decision carry political consequences, but that it should carry those consequences. If the American government decided to allow Russian or Chinese drones to fly within our borders, launching missiles at whomever their operators deemed a legitimate target, we would be completely correct not only in being quite upset with the foreign power, but also in feeling that our own government had sold us out to an enemy.
When Mr. Foust writes “[…] it should concern U.S. policymakers deeply that the drone program is further destabilizing an already tenuous situation.” he ignores the very real human cost of drone warfare, and diffuses the blame for this. If you take his verbage at face value, it is as though these missle strikes which regularly kill other people in addition (and occasionally instead of) their target somehow just happen, and that the thing we need to be most concerned with is whether or not the local rulers will be able to keep their population in check. How very pragmatic. It’s true, of course, that we cannot be sure he is as unconcerned with the human cost of our drone use policy, but if he has any objetions then he should make them explicit.
“There are no immediate plans for an autonomous lethal drone yet […] but the rush to robots in warfare is worrying. There just isn’t enough thought about what consequences these systems impose on U.S. policy. There needs to be.”
While I’ve yet to hear word of the Pentagon soliciting bids for Terminators, claiming there are no “immediate plans” for them is probably only true if you define “immediate” fairly strictly. There are certainly reasons to support the development of autonomous combat robots. These reasons might even appear to be good. A standard goal of combat is to neutralize (kill, maim, or otherwise render combat ineffective) your enemy without them inflicting the same fate upon you. Substituting machines for humans would certainly appear to be an effective way to approach this problem. “Soldiers” with the precision of a computer, and without the burden of emotions, might even seem like a development that would make war a more humane endevor for all concerned.
I agree with Kenneth Anderson over at The Volokh Conspiracy that drones have a morally caustic effect, in that the lessen our restraint from armed conflict. In removing our own troops from the battle, we no longer have to be concerned with the harshest consequences of warfare, that of the death and dismemberment of our own people. Instead we can concentrate on killing and dismembering our enemies with a much more detached perspective. You might argue that this detachment would instead allow the drone operator to more objectively evaluate the situation, freed as they are from bodily harm. However I think the actual effect is quite the opposite, instead enabling the operator to approach the battle from a video game-like perspective.
There are several news pieces I’ve been procrastinating on linking, and issues I’ve been putting off discussing. If anyone asks why, I’ll say I’ve been caught up in the SOPA/PIPA fight. Now where to begin…
The TSA, apparently not content with merely being a headache and/or terror at airports across the nation, have decided it’d be a rather good idea to also slow down your bus and train experience. Recognizing that that this still leaves the travelling public with the option of driving, there has also been an expansion of TSA’s VIPR program, including a joint exercise in Tennessee between the TSA and THP. In light of the past decade, it seems reasonable to assume that if you’re not seeing them where you live, they’ll get there sooner or later. The expansion of security screenings pairs nicely with the “If you see something, say something” propaganda campaign that is currently being employed by the Department of Homeland Security. These short ads depict ordinary people thwarting terrorism by reporting the activities of strangers to police, TSA agents, etc. The lesson being taught is that no one can be trusted, and that anyone around you could be a terrorist preparing to blow something up in the semi-near future, but fortunately you could be a hero if you have the quick thinking necessary to find a nearby blueshirt and inform on a stranger.
Not to be outdone, the NYPD is working with the Pentagon to deploy mobile imaging scanners to New York streets in addition to the already widespread cameras. Is it constitutional to use these devices? I wouldn’t think so, but I kind of doubt that will stop anyone. Civil rights are an outdated concept meant for a more innocent age; a relic of pre-9/11 thinking.
Drones are being operated in the United States by various groups. This in and of itself isn’t really news. We know the Border Patrol employs them for various missions, some not directly related to their named purpose. The EFF would like a full account of who is operating them, but the FAA won’t tell them. It seems the government is content to let them speculate.
What is the purpose of all this? The end-game?
The constant propaganda to keep us afraid of terrorists ensures docility among those not overly blessed in critical thinking, the perpetual wars to ensure there will be a supply of actual terrorists should they be needed, and the technology is there to do nearly everything but directly monitor our thoughts (but they’re hard at work on that). We are witnessing the birth of the perfect surveillance state; the ne plus ultra of police states. Complete knowledge, and total control. The provisions in the NDAA to allow the indefinite detention of U.S. citizens, and the enemy expatriation act in the works (H.R. 3166, S.1698) to ensure if we balk at that, then our citizenship can simply be revoked, making us into non-persons.
Is there really that much freedom left to fight for?
A good article entitled ‘The Iraq War, the Next War, and the Future of the Fat Man’ at Stanford Law Review. Discusses drone warfare, targeted killings, and the Obama administration’s evolution of the “Bush Doctrine.”