The Duck of Minerva

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Are CIA Drone Pilots Likelier to Comply With International Law?

January 22, 2014

drone constitutionThat is the justification made by senior lawmakers last week for adding a secret provision into appropriations bill that would block President Obama’s efforts to place the CIA’s drone program back under military control.

As reported in the Washington Post:

Sen. Dianne Feinstein (D-Calif.), the chairman of the Senate Intelligence Committee and a member of the Appropriations Committee, said last year that she had seen the CIA “exercise patience and discretion specifically to prevent collateral damage” and that she “would really have to be convinced that the military would carry it out that well.” Feinstein declined to comment on the budget measure this week. But a senior aide said that the senator “stands by her earlier statements” and that the Intelligence Committee has “recently reviewed this issue, and Senator Feinstein believes her views are widely shared on the committee.”

But this claim that this is all for the good of civilians seems fairly far-fetched. It’s not obvious to me that CIA strikes yield a significantly lower proportion of civilian to combatant casualties for CIA v. military strikes (if you are aware of who has shown this to be true please let me know). Datasets I follow either don’t disaggregate drone strikes by source, or drastically under-count civilian casualties by excluding adult men.

On the other hand, available data-sets do suggest (for what they’re worth) that the more pilots are trained in war law the fewer civilian casualties per strike. For example a classified study last year presumably found a much lower rate of casualties for manned air attacks than for drone strikes precisely because air pilots go through LOAC training whereas drone pilots don’t always. If that’s true, it suggests that CIA officers are even less likely to respect the laws of war, being untrained in them.

Of course that’s all speculation in the absence of really good studies. Still, here are three other reasons to doubt the claim that keeping drones in CIA hands will limit violations of international law.

First, the use of force in an armed conflict by non-military personnel is itself a crime under the laws of war. Unless the CIA is incorporated into the military for the duration of the conflict, CIA personnel are considered civilians directly participating in hostilities, which both makes them a) legitimate targets themselves when they’re doing so and b) subject to prosecution if caught.

Second, as Michael Zenko has pointed out, CIA control inhibits transparency, which war law compliance is based on. By turning the program over to the Pentagon, Congress and the public would be able to exercise oversight over the rationales for targeting being used to carry out these operations.

But perhaps this is precisely what Congress worries about: that the program simply would not pass muster if open to deliberative scrutiny, because the program itself – whether implemented by CIA or military personnel – is widely understand to violate international human rights law when it uses drones to summarily execute “suspected” militants rather than individuals with a known continuous combat function.

In short, if lawmakers are truly concerned about upholding international law and protecting civilians they should be bending over backward to move the drone program out of CIA hands – and to drastically curtail it. Their effort to prolong the status quo, and to do so covertly using a secretive provision in a funding bill, signals not concern for civilians but more likely a complicity in a culture of lawlessness and secrecy that undermines the civil-military balance. Instead, as Senator McCain has pointed out, the question of the nature, control and legitimacy of the US drone program should be a subject of democratic deliberation and debate.

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Charli Carpenter is a Professor in the Department of Political Science at the University of Massachusetts-Amherst. She is the author of 'Innocent Women and Children': Gender, Norms and the Protection of Civilians (Ashgate, 2006), Forgetting Children Born of War: Setting the Human Rights
Agenda in Bosnia and Beyond (Columbia, 2010), and ‘Lost’ Causes: Agenda-Setting in Global Issue Networks and the Shaping of Human Security (Cornell, 2014). Her main research interests include national security ethics, the protection of civilians, the laws of war, global agenda-setting, gender and political violence, humanitarian affairs, the role of information technology in human security, and the gap between intentions and outcomes among advocates of human security.