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Blurred Lines: An Argument for a More Robust Legal Framework Governing the CIA Drone Program

Written by  Andrew Burt & Alex Wagner

“[Al Qaeda] does not follow a traditional command structure, wear uniforms, carry its arms openly, or mass its troops at the borders of the nations it attacks.”

Those are the words of John Brennan, President Barack Obama’s chief counterterrorism advisor at a September 2011 speech outlining the Obama administration’s legal framework for its counterterrorism efforts.  Brennan’s speech underscored the widespread understanding that, due to its basic organizational structure and failure to present itself formally as a recognizable armed force, al Qaeda lacks the legitimacy to participate in armed conflict and is not entitled to its concomitant privileges under international law.
The irony of Brennan’s argument, however, is that many prominent academics argue that the same case can be made about the status of the reportedly civilian CIA employees who operate the armed, unmanned aerial drone counterterrorism strikes against al Qaeda militants.  In general, CIA employees are civilians and not combatants, and therefore do not enjoy any legal privilege to participate in hostilities pursuant to the laws of war.  Military combatants are privileged to participate in hostilities and kill other combatants (or civilians who directly participate in hostilities) during armed conflict, where killing is a principal means of achieving the objective of attrition. Further, any such participation in hostilities, without marking themselves as such through uniforms or insignia to distinguish themselves from noncombatants, arguably renders CIA personnel in violation of the international humanitarian law requirement known as “distinction.”  That has led many to question whether the CIA civilian drone operators who engage in armed attacks against members of al Qaeda, the Taliban, and their associated forces might share the same legal status as the terrorists they combat.

Initially, this Essay attempts to unpack that potential irony, laying out the legal framework that governs the law of armed conflict. More importantly, however, we propose possible courses of action that the Obama Administration could take to realign, revise, and strengthen the legal framework on which its highly effective drone program is based. We suggest two possible courses of action. First, and perhaps most intuitively, the Administration could transfer its drone program to military control and consolidate the separate CIA and military lists it reportedly maintains of targeted belligerents. Barring that transfer, however, we believe that broadening the U.S. government’s view of who qualifies as a legal combatant—by publicly announcing the United States’ acceptance, as a matter of legal obligation, of Articles 43 and 44 of the 1977 Additional Protocol I of the Geneva Conventions—would grant additional legitimacy under international law to buttress the drone program.