March 12, 2010

America's Unlawful Combatants

Today's Washington Post features a very interesting column by Georgetown University law professor Gary Solis.  In it, he provides background on the definition of the term "unlawful combatant", a concept near and dear to the hearts of those who support indefinite imprisonment and torture, as it has provided them with what they believe to be justification for taking such actions in the "War on Terror".  Professor Solis points out, however, that the United States is using unlawful combatants of its own:
In terms of international armed conflict, those CIA agents [who pilot armed, unmanned drone aircraft] are, unlike their military counterparts but like the fighters they target, unlawful combatants. No less than their insurgent targets, they are fighters without uniforms or insignia, directly participating in hostilities, employing armed force contrary to the laws and customs of war. Even if they are sitting in Langley, the CIA pilots are civilians violating the requirement of distinction, a core concept of armed conflict, as they directly participate in hostilities.
It makes no difference that CIA civilians are employed by, or in the service of, the U.S. government or its armed forces. They are civilians; they wear no distinguishing uniform or sign, and if they input target data or pilot armed drones in the combat zone, they directly participate in hostilities - which means they may be lawfully targeted.
In related news, the non-partisan New America Foundation released a report in February with some sobering analysis:
Our study shows that the 114 reported drone strikes in northwest Pakistan from 2004 to the present have killed between 830 and 1,210 individuals, of whom around 550 to 850 were described as militants in reliable press accounts, about two-thirds of the total on average. Thus, the true civilian fatality rate since 2004 according to our analysis is approximately 32 percent.
Putting these pieces together, the United States has used armed, unmanned drones to attack targets in another nation, killing hundreds of civilians.  At least some of these drone attacks were directed by unlawful combatants, as defined by both custom and law.  While it is unquestionably desirable to see legitimate threats to American interests eliminated, when regarded in this fashion, it's not hard to understand why Pakistanis might consider drone attacks within their borders to be no better than the terrorism wrought by the Muslim extremists they target.


Grip said...

When I first read the title of this blog, I assumed it would be about the Democratic Leadership. ;)

Jay Booshay said...

I don't know if I necessarily agree with what the professor is saying. Shouldn't the fact that they are flying easily recognizable drones constitute a uniform?

PBI said...




PBI said...


That's actually the whole point, I believe: You can't have a civilian using military equipment to attack other nations. The CIA is a non-military service, and the only legal combatants are the Army, Navy, Air Force, Marines, Coast Guard and National Guard.