April 28th, 2010
03:59 PM ET

To drone or not? Hearing questions drone attacks' legality

WASHINGTON — Congress delved Wednesday into the politically explosive issue of unmanned drone attacks, questioning the legality of operations increasingly used to combat al Qaeda and Taliban militants in countries such as Pakistan.

In the eight years of George W. Bush's presidency, unmanned aircraft - or drones - attacked militant targets 45 times.

Since President Barack Obama took office, the numbers have risen sharply: 51 last year and 29 so far this year.

Most attacks have targeted suspected militant hideouts in Pakistan. While the United States is the only country in the region known to have the ability to launch missiles from drones - which are controlled remotely - U.S. officials normally do not comment on suspected drone strikes.

Based on a CNN count, all of the 29 drone strikes this year have hit locations in North Waziristan and South Waziristan, along the 1,500-mile porous border that Pakistan shares with Afghanistan.

Several top U.S. law professors debated the legality of the attacks in a hearing before the House Subcommittee on National Security and Foreign Affairs, the second such hearing held by the subcommittee within the past two months.

"The United States is committed to following international legal standards," said Rep. John Tierney, D-Massachusetts, the subcommittee's chairman. "Our interpretation of how these standards apply to the use of unmanned weapons systems will set an example for other nations to follow."

The four legal scholars invited to testify, however, offered sharply contrasting views of what constitutes an acceptable legal standard. The biggest controversy appeared to surround the legality of strikes conducted by CIA operatives, as opposed to the U.S. military.

"Only a combatant - a lawful combatant - may carry out the use of killing with combat drones," said Mary Ellen O'Connell, a professor from the University of Notre Dame law school.

"The CIA and civilian contractors have no right to do so. They do not wear uniforms, and they are not in the chain of command. And most importantly they are not trained in the law of armed conflict."

O'Connell also claimed that "we know from empirical data ... that the use of major military force in counterterrorism operations has been counterproductive." The U.S. government, she asserted, should only use force "when we can accomplish more good than harm, and that is not the case with the use of drones in places like Pakistan, Yemen and Somalia."

David Glazier, a professor from Loyola law school in Los Angeles, California, defended the drone attacks on the grounds that there is "no dispute that we are in an armed conflict with al Qaeda and with the Taliban." That fact "allows the United States to call upon the full scope of authority which is provided by the law of war."

Glazier said there is "nothing within the law of war that prohibits the use of drones. In fact, the ability of the drones to engage in a higher level of precision and to discriminate more carefully between military and civilian targets than has existed in the past actually suggests that they're preferable to many older weapons."

He conceded, however, that there are legitimate concerns over the CIA's use of drones. CIA personnel are "clearly not lawful combatants (and) if you are not a privileged combatant, you simply don't have immunity from domestic law for participating in hostilities."

Glazier warned that "any CIA personnel who participate in this armed conflict run the risk of being prosecuted under the national laws of the places where (the combat actions) take place." CIA personnel, he said, could be guilty of war crimes.

William Banks, the founding director of Syracuse University's Institute for National Security and Counterterrorism, said the U.S. government has engaged in targeted killings of individual combatants dating at least back to a 1916 border war with Mexican bandits.

Banks said the authors of the 1947 National Security Act, which traditionally gives the CIA much of its legal authority, likely didn't contemplate the targeted killings tied to drone attacks. But the statute, he said, was "designed as dynamic authority to be shaped by practice and by necessity."

"The intelligence laws permit the president broad discretion to utilize the nation's intelligence agencies to carry out national security operations, implicitly including targeted killing," he said. U.S. laws "supply adequate - albeit not well articulated or understood - legal authority for these drone strikes."

Peter Bergen, a fellow at the New America Foundation, could not say definitively prior to the hearing why U.S. drone attacks have increased so significantly during the Obama administration. He cited a revenge factor, however, saying that U.S. forces are upset and want retribution for the brazen bombing of a CIA base in eastern Afghanistan that killed seven Americans on December 30.

"The people who died in this suicide attack were involved in targeting people on the other side of the border," he said earlier this year.

Long War Journal, an online publication that charts data for U.S. airstrikes against al Qaeda and the Taliban in Pakistan, says the air campaign "remains the cornerstone of the effort to root out and decapitate the senior leadership of al Qaeda, the Taliban, and other allied terror groups, and to disrupt both al Qaeda's global and local operations in Afghanistan and Pakistan."

Such attacks, which have taken a civilian toll in many cases, have frequently caused tension between Pakistan and the United States. 

–CNN's Alan Silverleib contributed to this report

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Filed under: Drone strikes • Obama • Pakistan • Pentagon
soundoff (235 Responses)
  1. ybs

    We are not in there to kill Afghans. We are in there for one thing - Osama bin's head.

    The Taliban harbored Osama bin. They made a mistake. The only way they could maintain power is to hand over Osama bin's head on a platter - they know it. Until then, we'll sock it to them (the deaths of their families are collateral damages).

    They are feeling the heat! Kill them with drones!

    September 4, 2010 at 5:32 pm | Report abuse |
  2. Michael

    The US may indeed go bankrupt before it is all over. More madmen with box cutters can shut this country down.
    9/11 gave us Afghanistan – we invaded – our attackers escaped. Then IRAQ – OK – No WMD – but lets fix the country.
    Drones flying over the world looking for terrorists. We are still swatting flies with a sledge hammer and drones don't change that fact.

    WW2 lasted 4 years – The voters need to start thinking about what a sucessfull prosecution of this war might look like.

    HINT: Think of a 10 round fight and round 1 just began 1 second ago. Remember the enemy has no rules, in fact, he is not even in the ring with you.

    July 19, 2010 at 8:19 am | Report abuse |
  3. Mo

    وسوف الآلهة

    I think most extremist Muslims would say "Gods Will" reference drone attacks, suicide vests, improved explosive devices, etc. Pretty sure if they had drones they would use them indiscriminately. I don't think we should place ourselves on such a moral highground that we limit our odds of winning. We already do to some extent. Maybe we can talk them into stop killing innocent Coalition Partners and Americans? I seriously doubt it. I think the wars we are in today are already fought unfairly. Shall I site a few examples...hide amongst civilians, hire children to do your dirty work because you are scared, blowing up civilians without cause...shall I go on.

    Why isn't the UN screaming about these type acts of horror. I say "God's Will" with Drone attacks.

    June 3, 2010 at 8:30 am | Report abuse |
    • Jerry

      I really could have not put it better myself. I take my hat off to you.

      June 4, 2010 at 8:02 am | Report abuse |
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