Drone Pilots Could Be Tried for ‘War Crimes,’ Law Prof Says

[tekisui]

Source: Wired

The pilots waging America’s undeclared drone war in Pakistan could be liable to criminal prosecution for “war crimes,” a prominent law professor told a Congressional panel Wednesday.

Harold Koh, the State Department’s top legal adviser, outlined the administration’s legal case for the robotic attacks last month. Now, some legal experts are taking turns to punch holes in Koh’s argument.

It’s part of an ongoing legal debate about the CIA and U.S. military’s lethal drone operations, which have escalated in recent months — and which have received some technological upgrades. Critics of the program, including the American Civil Liberties Union, have argued that the campaign amounts to a program of targeted killing that may violate the laws of war.

In a hearing Wednesday before the House Committee on Oversight and Government Reform’s national security and foreign affairs panel, several professors of national security law seemed open to that argument. But there are still plenty of caveats, and the risks to U.S. drone operators are at this point theoretical: Unless a judge in, say, Pakistan, wanted to issue a warrant, it doesn’t seem likely. But that’s just one of the possible legal hazards of robotic warfare.

Loyola Law School professor David Glazier, a former Navy surface warfare officer, said the pilots operating the drones from afar could — in theory — be hauled into court in the countries where the attacks occur. That’s because the CIA’s drone pilots aren’t combatants in a legal sense. “It is my opinion, as well as that of most other law-of-war scholars I know, that those who participate in hostilities without the combatant’s privilege do not violate the law of war by doing so, they simply gain no immunity from domestic laws,” he said.

“Under this view CIA drone pilots are liable to prosecution under the law of any jurisdiction where attacks occur for any injuries, deaths or property damage they cause,” Glazier continued. “But under the legal theories adopted by our government in prosecuting Guantánamo detainees, these CIA officers as well as any higher-level government officials who have authorized or directed their attacks are committing war crimes.”

The drones themselves are a lawful tool of war; “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,” Glazier added. But employing CIA personnel to carry out those armed attacks, he concluded, “clearly fall outside the scope of permissible conduct and ought to be reconsidered, particularly as the United States seeks to prosecute members of its adversaries for generally similar conduct.”

Read More http://www.wired.com/dangerroom/2010/04/drone-pilots-could-be-tried-for-war-crimes-law-prof-says/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wired%2Findex+%28Wired%3A+Index+3+%28Top+Stories+2%29%29#ixzz0mUe9gcqX

[tekisui]

1. House Committee Questions Legality of Drone Strikes against Terrorists

(snip)

“Outside of a war or an armed conflict, everyone is a civilian when it comes to the use of lethal force,” she said. “The combatant’s privilege to kill on the battlefield without being charged with a crime applies inside an armed conflict and not outside.”

O’Connell also said that “only a lawful combatant” could carry out a drone strike, arguing that even on the battlefield in Afghanistan a CIA operative or military contractor could not lawfully use a drone to kill a terrorist.

“Only a lawful combatant may carry out a killing with combat drones,” she said. “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 further said that even if a country where there was not already an ongoing war, such as Yemen of Pakistan, gave America permission to enter its territory and kill a terrorist there, it would still be illegal because neither America nor the country in question was engaged in an ongoing war.

“The invitation has to be to participate in the armed conflict which the government of the country is participating in,” said O’Connell. “So Yemen right now is facing insurgencies in the North and the South – it’s got two rather minor insurgencies going on right now.

“If they had asked us, the United States, to also be involved, we could use military force there on their invitation in their armed conflict,” she said.

“But what we’ve done in 2002 in the case which we know most about, the attack was not part of any armed conflict that the Yemeni authorities were involved in,” O’Connell added.

http://www.cnsnews.com/news/article/64916

[CBGLuthier]

2. You mean they (CIA) are "unlawful combatants?"

What do we do with unlawful combatants?

I wonder if I will live long enough to see any american punished for war crimes. Somehow I doubt it.

[Are_grits_groceries]

3. Good luck.

A lot of them are sitting at consoles in the US.

[izquierdista]

5. There are rooms available

They can be relocated to the Hermann Goering suite at the Nuremburg Greybar.

[dixiegrrrrl]

4. Did you catch this: it is the CIA that is waging the drone war!

They just casually admitted that the CIA is in fact attacking and killing people via the drones.
NOT the military.

Now, we have all known the open secret that the CIA has been involved in many of the coups and rebellions in other countries.
( probably here, too )
But this time it is not a secret, they are openly discussing that the CIA is responsible for the drone attacks.

[eShirl]

7. k&r

[tech9413]

6. That is just plain stupid

The operators are just doing what they are told. They have no way of evaluating the intelligence given to those above them is accurate or BS. They can't make an informed decision on if their superior is making a political or career decision.
Just another game of blaming the little guy.

[tekisui]

8. But they are not legal combatants in a war zone.

They have no business in the operation whatsoever. This is not a soldier following orders on a battlefield. This is a CIA agent carrying out an act of war in a country with which we are not at war.