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New Yale legal paper lays out case for how best to mitigate negative impacts of US drone strikes

Yale University’s Joshua Andresen has just posted an excellent, scholarly analysis of the legal implications of US drone strikes but with a critical caveat missing from many such pieces: He calls for and justifies, in a clear and compelling manner, a pathway to reign in the multiplying dangers associated with an increased reliance on the technology. The download is available here:www.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2574914

A few key bits I found particularly interesting:

“…This Article argues that the best way to assure the lawfulness of drone strikes, restore our constitutional balance of powers, and protect national security is to subject strikes that violate the law of war to ex post judicial review…”

“Adjudicating the legality of drone strikes by determining the military commander’s compliance with the laws of distinction and proportionality is an imminently legal task that our courts should feel compelled to carry out. Adherence to the rule of law, our constitutional separation of powers, and our national security interests all speak for judicial review of drone strikes.

He expands on this contention at length, but a great nugget is here: “…As professors Barrow and Lederman concede, “[i]n its most persuasive form, the Bush Administration’s assertion of preclusive executive war powers rests on precisely this contention – that Congress cannot ‘dictate strategic or tactical decisions on the battlefield.’”79 However, Barrow and Lederman go on to show that this frequent contention by the Executive is fundamentally misleading.80 Statutes and treaties do regulate military tactics. For instance, the military may not employ the tactics of poisoning the enemy, or targeting enemy civilians.81 As we have already seen, the President is constitutionally required to respect congressional limits on the use of force.82 We should thus be wary of government claims to nonjusticiability of uses of military force.

Andresen then uses the Israeli example, which demonstrates in part how ex post judicial review is rooted in a wide body of accumulated knowledge and practice: “…What this means practically for judges who will review drone strikes for their compliance with the law of war is that they will have a wealth of legal analysis before them. Just as Israeli judges and judges at international tribunals have adjudicated alleged violations of distinction and proportionality, U.S. judges will adjudicate whether commanders reasonably adhere to the law.1..”

He argues, again in part, about the value of such a process here: “…Where commanders have fired only on military objects and reasonably calculated military advantage to outweigh anticipated civilian casualties, the drone strike should be found lawful. Such findings will reinforce the practice of distinguishing military from civilian objects and calculating proportionality while contributing to much needed jurisprudence on the subject in the U.S. Where, however, the requirements of distinction and proportionality have been egregiously flouted, perhaps by firing at a civilian object or failing to consider anticipated civilian casualties, the strike should be found unlawful. Such findings, and the accompanying public, international, and security repercussions,142 will serve to compel future compliance with the law of war and deter disregard for the rights and legal protections of civilians in war. As Federal courts have done throughout the last decade with respect to detention,143 those same courts can apply the law of war to drone strikes to protect fundamental rights and assure the legality and legitimacy of government activity in war.

— One point here that we must consider: Will ex post judicial review actually “compel” anything positive in regards to waging war? The Israeli example provides fodder for both sides it seems to me…

Andresen then argues forcefully that the Federal Courts necessarily have jurisdiction: “…Federal Courts should recognized that they have jurisdiction to review the legality of drone strikes under 28 U.S.C. § 1331 and § 1350. Section 1331 grants Federal district courts jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” As we have seen, the laws of distinction and proportionality are central elements of the law of war that the U.S. has affirmed as binding on its military operations. As legally binding customary international law, distinction and proportionality form part of our federal law and their violation raises a federal question.145 Federal district courts thus have jurisdiction to review drone strikes for their compliance with the laws of distinction and proportionality.

He concludes later with this important section: “..The above discussion shows that courts can and should reach the merits of a case brought by a civilian victim seeking a declaration of the unlawfulness of the drone strike that injured him. Having looked at the issue solely from the side of how a victim might successfully bring a case, I can now add that the government also has a real interest in such cases reaching the merits. Apart from the relief granted to individual victims of strikes, declaratory judgment will have the further effect of either vindicating the lawfulness and legitimacy of U.S. drone strikes where they are found to be legal, or compelling internal reform where specific strikes are found to be carried out unlawfully. If the President and military are truly interested in convincing the American people and our allies of the legality and legitimacy of the drone program, they should want to demonstrate the lawfulness of specific strikes that harm civilians in federal court. A failure to vindicate the drone program in court will lead to greater U.S. isolation and thus greater insecurity. Given the value of intelligence cooperation in counter-terrorism, demonstrating the lawfulness of drone strikes should be a national security priority.”

— The argument that the current course is BAD is a difficult one to make – since there is little empirical data, unfortunately, to support claims like the current track undermines international cooperation, creates a backlash effect or otherwise has subtle, deleterious effects on US interests/ideals etc.

The same goes for his contention that the alternative he advocates for is BETTER.

While I agree with him in principle, I think perhaps what is needed here is more work and research into how the current trajectory of Drone strikes is in fact materially and evidently hurting US interests – what are US interests? How are our “ideals” if undermined really negatively affecting our interests etc etc.

How do you undermine the negative effect of Abu Ghraib for example… or the drone strike he describes on a wedding party.

My sense is that sadly, Josh is likely correct but that the negative effects are subtle and cumulative and wont serve to change policy materially until it is more directly, painfully evident that the current approach to this expanding technology is hurting us. At that point maybe matters will have become so corrosive that a correction is the least of our problems?

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Written by nickbiddlenoe

April 7, 2015 at 6:16 pm

Posted in Uncategorized

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