Defining due process in targeting drones

Predator drone attacks — what many label as targeted killings — are now in the crosshairs of critics of the U.S. efforts to disrupt the ability of transnational terrorists to ply their deadly trade.

Like the debate over detention and military commissions, law is central to this most recent effort to condemn U.S. actions. The rallying cry of opponents of these operations is the clarion call of due process: These attacks are legally invalid because they arbitrarily deprive suspected terrorists of life.

A fair critique of this practice must, however, begin with the most fundamental question related to any invocation of due process: What process is due?

Even assuming nonresident terrorist operatives outside the United States are entitled to due process protection, the critical first step in analyzing this protection to determine the process these operatives are due.

Answering this question turns on the determination of the legal framework applicable to these attacks. Our government has consistently asserted since Sept. 11, 2001, that individuals subject to drone attacks are belligerent operatives of an enemy force engaged in armed conflict with the United States. Because of this, it is the law of armed conflict that defines the process they are due.

At the core of the law of armed conflict is the principle of military necessity, which provides the authority to kill enemy belligerent operatives as a measure of first resort.

This authority is fundamentally different than the authority of the state to take life in peacetime. In that context — what most people would understand as a law enforcement context — there is no tolerance for deprivation of life as a measure of first resort.

Instead, resort to deadly force is strictly reserved as a measure of last resort, requiring exhaustion of all reasonable alternatives before taking life. Thus, when a police officer kills in the line of duty, it is almost automatic to ask whether the use of force was excessive.

In contrast, killing an enemy belligerent in armed conflict is an accepted incident of war, and the law imposes no obligation on the warrior to exhaust less deadly options.

It is therefore unsurprising that part of the criticism of drone attack practice is the assertion that these attacks occur outside an area of active combat operations. In reality, however, the law of armed conflict provides no clear definition of zone of active combat.

Furthermore, whatever customary understanding of this term may have existed prior to Sept. 11 failed to contemplate the existence of armed conflict between a state and a transnational non-state entity like al-Qaida.

Many critics of U.S. practice reject the assertion that such an armed conflict exists, arguing that the U.S. is permitted to invoke the authority of military necessity only within the confines of Afghanistan and Iraq.

It is clear, however, that all three branches of the U.S. government view our conflict with al-Qaida as one that extends beyond any defined geographical boundaries, to include a president who staked out this claim of authority while accepting the Nobel Peace Prize.

There is no question that it is a daunting and complex task to draw the line between enemy belligerents subject to deadly combat power and other individuals not part of al-Qaida’s belligerent network.

It is probably also true that assertion of this authority will at times be overbroad, leading to strikes against individuals who perhaps should not have been classified as lawful wartime targets.

But these complexities do not justify a rejection of wartime targeting authority. Demanding that the United States limit itself to peacetime law enforcement powers in the effort to detect, disable, and at times destroy terrorist operatives outside the geographic confines of Afghanistan is inconsistent with the nature of our struggle against transnational terrorists; a conflict we did not start but cannot avoid.

It is a hollow and misleading argument to claim that attacking these operatives violates due process without acknowledging that it is the existence of armed conflict that defines the process they are due.

By engaging in hostilities against the United States, terrorist operatives subject themselves to the risk of being targeted with combat power like any other enemy combatant in history.

Geoffrey S. Corn is an associate professor of law at the South Texas School of Law in Houston and is a former Army Judge Advocate. Brig. Gen. (Ret.) Thomas Hemingway was for 35 years an Air Force Judge Advocate and served from 2003 to 2007 as legal advisor in the Department of Defense Office of Military Commissions.

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