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Posted Nov. 9, 2010

Panel Explores Legality of Drone Strikes, Targeted Killings

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From left: John Echeverri-Gent, Michael Lewis and Robert Turner

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Contact: Rob Seal

Armed conflict goes where the enemy goes regardless of geopolitical boundaries, according to a panel of experts discussing the use of unmanned drones in the war on terror.

The Nov. 1 discussion, “Drone Warfare, Targeted Killings and the Law of Armed Conflict,” was sponsored by the Federalist Society and the J.B. Moore Society of International Law, and featured Professor Michael Lewis of the Ohio Northern University College of Law; Robert Turner, a general faculty professor at the Law School; and John Echeverri-Gent, an associate professor of politics at UVA. Kenneth Anderson, a professor at the Washington College of Law at American University, moderated.

The panel discussed legal and policy implications of targeting a member of the Taliban or al-Qaida in a sovereign nation other than Iraq or Afghanistan. That question is further complicated by the bounty the U.S. military has allegedly placed on the head of Anwar Al-Aulaqi, a U.S. citizen living in Yemen, who U.S. intelligence claims has ties to the Sept. 11 attacks, panelists said.

The topic is a critical discussion with implications for the law and human rights, according to Anderson. “It touches on so many legal questions arising in the question of what constitutes an armed conflict, what constitutes ways and places and situations under which the use of force can be taken,” he said.

Turner was less reflective. “Let me start with a fundamental premise: America is at war. Or more correctly, we’re engaged in an armed conflict,” he said. Turner said Congress, Presidents George W. Bush and Barack Obama and NATO agreed that we are in a war, and cited the Authorization for Use of Military Force, a law passed by Congress one week after the attacks of Sept. 11.

Turner also defended the U.S. pursuit of Al-Aulaqi “Unlike our 1941 declaration of war against Germany, the 2001 AUMF did not specify any particular country. It authorized the president to use force against those nations, organizations or persons the president decided assisted in the attacks of  Sept. 11.”

But even in previous wars, the U.S. legally pursued enemies across borders, such as crossing the Cambodian border in pursuit of the Viet Cong and FDR sending Gen. George Patton into North Africa without a declaration of war against African states, according to Turner.

“There’s a lot of old thinking with respect to battlefields,” Turner said. “There was a time when armies would line up on opposite sides of a great field, and they would charge out and try to slay each other until someone ran away or until all their soldiers were dead.”

“All this arguing that the president can only use force on a recognized battlefield is absolutely absurd,” Turner said.

Lewis discussed the targeting of Al-Aulaqi, who has dual citizenship in the U.S. and Yemen, and is considered the leader who inspired Fort Hood shooter Nidal Malik Hasan and Umar Farouk Abdulmutallab, who is suspected of attempting to blow up a Northwest Airlines flight in 2009.

Al-Aulaqi’s father and the American Civil Liberties Union, among other groups, have sued the U.S. government to keep Al-Aulaqi off of the U.S. targeted killing list. The plaintiffs argue that since Al-Aulaqi is in Yemen and not in Afghanistan, it is a law enforcement matter; he is not a target of armed conflict.

“This fundamentally misunderstands how the law of war applies, or should apply because the law of armed conflict has always gone where the combatants go,” Nelson said. “You cannot use a geopolitical boundary as a hiding place or a safe haven.”

Echeverri-Gent spoke of the foreign policy implications of targeted killings and the use of drones. For Echeverri-Gent, legality isn’t the only question. “Even if we do have legal rights to do something, we can choose not to do it if it doesn’t advance our foreign policy interests,” he said.

The use of drones to target Taliban or al-Qaida targets in Pakistan is a case in point. “The most important ally we have in the war on terror are actually the people that reside in the societies where al-Qaida are located,” he said.

However, Echeverri-Gent dismisses collateral damage estimates involving drone attacks on terrorist positions in Pakistan. Often, he said, the sources of casualty figures are the Taliban and al-Qaida themselves. “This data is unverifiable,” he said.

Pakistani public opinion increasingly endorses drone attacks against al-Qaida and the Taliban within the country, according to Echeverri-Gent. “They [Pakistanis] feel that the collateral damage that has been imposed by the drones is much less disruptive than the collateral damage that has been imposed by their military,” he said.

All the participants cautioned against disrespecting the governments of the countries terrorists inhabit. “Obviously there are legal concerns when bad guys are hiding in Great Britain, France, Germany wherever,” Turner said. “We don’t just go in there and start blowing up buildings to go after the bad guys.”

If you have the consent of the governments concerned, you may go after suspected terrorists, according to Turner.

Anderson added, “The touchstone here is hostilities. You’ve got to show that there are active hostilities in some way.”

Reported by tim arnold