Wrong Argument in Drone Debate ?

Acouple of days ago, Michael Isikoff of NBC News got his hands on a 16-page memo from the that laid out the legal argument for using lethal force against American citizens in foreign lands who are members of Al Qaeda. What passes for the left in America spent the last two days in a tizzy because President Obama is doing things President Bush might have done. The truth is the drone attacks are quite legal. Congress, though, has been asleep at the wheel, and the attacks seem harmful to America’s cause in the long run.
On the law, the memo starts from the wrong point. It discusses the entire matter viewing it through the prisim of the law of war. Despite the media and political use of the word, the United States cannot be in a state of war with Al Qaeda in the international legal meaning of the term. Only nation-states are subject to international law. Al Qaeda is not a nation-state, and so, it isn’t a subject of international law. There cannot be a state of war between a nation-state and any other type of entity.

As a result of this miscast argument, proponents and opponents of the drone attacks have bickered over the wrong facets of the law. Does the president have this power? How far down the executive branch does the authority to order attacks go? Where is the due process for the accused? None of this is relevant.

Given their actions, there is no difference between terrorists and pirates. They may differ in their motivations with the former committing crimes against mankind for political purposes and the latter for financial gain. However, the distinction is minor at most. If one views Al Qaeda’s members and members of its affiliates as pirates, everything falls into place nicely.

Under customary international and treaty law, there is universal jurisdiction to act against pirates. That is, any state at any time can act anywhere for the good of all. The law does get fuzzy once one leaves the high seas and enters territorial waters of a sovereign state. At that stage, the sovereign has a primary responsibility. However, nothing under international law would prevent a second state from acting with permission of the sovereign.

Quite simply, the United States (or any nation for that matter) is perfectly within the law of nations to act against pirates and, by logical extension, terrorists anywhere in the world. The constraint here is whether the US has the permission of any other country to act within that other country’s boundaries. This is a very different argument than those the DoJ memo or its opponents have made. The question is a matter of fact not an argument of legal interpretation. If the government of Yemen, for example, gives the US permission to use drones within its territory, the attack is entirely legal under international law. And under Article VI of the US Constitution, the US is bound by international law.

A better question is whether these drone attacks are helping or hurting America’s national interests. According to those who count such things, US drone strikes have killed around 180 children, and that is a recruiting poster for the bad guys. Congress needs to act, as per the Constitution, to alter or ban this practice. Of course, if drones can not be used, troops will have to be. And that creates an entirely new set of legal problems.