Advances in military technology have made it easier for the United States to use unmanned drone aircraft to target enemies. While so-called “killing by drone” is certainly safer for the American military, the practice raises important legal and policy questions. Scott Silliman, professor of the practice of law at Duke University Law School, director emeritus of the Center on Law, Ethics, and National Security, and a career Air Force attorney, addressed those questions earlier this year in a presentation to the John Locke Foundation’s Shaftesbury Society. Silliman also discussed the issue with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)
Kokai: First of all, this really is a sea change in the way the United States is able to handle operations against a targeted enemy — flying these drones in without really any danger to American personnel. That raises a lot of questions about how this can be used, doesn’t it?
Silliman: It does, Mitch, and many would suggest that this is really the wave of the future, that we are moving beyond manned airplanes, we are moving beyond having to put boots on the ground, and that we’re really dealing now with drones and a whole other issue — cyber warfare — where you don’t have any direct engagement between human beings on the battlefields. So it’s more precise. It’s, to some extent, less expensive. But as you pointed out in your intro, it does raise issues, both law and policy.
Kokai: Let’s get into the legal issues. You are a professor of the practice of law and study the law involved in these military operations. What are some of the key legal questions?
Silliman: A lot of folks have challenged the killing by drone by saying, “You can’t just go out there and kill somebody. You’ve got to capture them first, and only if you can’t capture them and you’re at risk can you use lethal force.” Well, the United States has taken the position, Mitch, that we are at war against these terrorists, and we have adopted what’s called the law of armed conflict paradigm. And that allows us, under the law, to kill anyone who is a combatant, regardless of where they are, unless they have actually taken themselves out of the fight.
Many other countries — Western European countries — believe that terrorism is a crime, not a war act, and so they would say that we can’t go around the world killing folks, but the United States has maintained — and, I think, properly so — we’re at war, and we can use lethal force. On the domestic side, when the president authorizes us to use lethal force, it’s perfectly legal, so I see no legal issues that are causing an impediment to our use of drones.
Kokai: Is there anything that needs to be done to ensure that the people who are being targeted are actual combatants? Does there have to be something — some I dotted, some T crossed — to ensure that some president, not necessarily the current one, but someone in the future, wouldn’t just use this to attack other enemies who might not be involved in a war?
Silliman: That’s an excellent question. And the one thing about drones, Mitch, is that you can study the target for a long period of time. These drones can linger and loiter for up to 40 hours in the air. So, traditionally, what they do is, they will track the suspect in his normal daily activities to confirm that that individual really is a member of al-Qaeda, or engaging, or planning to engage, in hostilities. So, rather than having a guy in an airplane firing a missile without really studying the lifestyle of the individual, this is much more precise, and the intelligence allows us to ensure that it really is a lawful target.
Kokai: From a policy perspective, I imagine there have been some questions about people saying, “Well, OK. We know it works. We know it’s safer, but should we really be doing this?” Is that the type of thing we ought to be thinking about?
Silliman: That’s a question that’s being raised. And a real concern, I think, among many, is the issue of proliferation. The United States is not the only one that either has or is developing drone technology. We believe that China and Iran are also seeking to acquire or develop this type of technology. And if that’s true, Mitch, the question is, with the feasibility of the use of drones and the opportunity to send a drone over sovereign borders without many people knowing about it, it becomes a very dangerous world in which to live.
Kokai: And, if someone else did have and start to use this technology, what kinds of dangers might that pose to U.S. forces?
Silliman: It could pose tremendous dangers for them because, again, these drones — particularly if the technology is such that it’s a stealth type of drone, as the United States has — then we would have a difficult time really finding these things before they come over our borders. Also, of course, in Afghanistan, where we still have armed forces, Iran could easily send a drone over, just as we send drones over the borders. So again, it’s a difficult type of warfare to counter or to defend against, and that’s why they’re so successful and [why] we’ve been using them so successfully.
Kokai: What sorts of issues do you see arising from the fact that we have this move toward warfare of this type and away from the type of warfare in which you basically have two sets of armies, or an army and some insurgents, clashing on a battlefield or at least in some place where you have different groups of people fighting each other?
Silliman: It raises the prospect of war by robots, and some have suggested that we can develop the technology of drones — killing drones — where they can actually be autonomous. In other words, they don’t have to have a human being sitting there with a joystick, that they can actually interpret the intelligence and fire. We’re a long way from that, Mitch. But the problem, again, is that many would argue that the use of this technology makes going to war easier, therefore we’re going to be prone to get into more wars.
I don’t accept that theory to be honest with you. I think, again, the decision to go to war, the decision to use force is [with] the president of the United States, and that will never be relinquished to any kind of technology. So the development of the drones that we use for targeting right now is an advancement of technology, just like the jet airplane was an advance over the prop. It doesn’t mean that the decision to use force is taken away from the human being.
Kokai: Do you get the sense that the rules that are in place now that would govern the use of drones are where they should be? Or do we need to build in any more safeguards or controls to ensure that these are — this material, this technology — is used in the best way possible?
Silliman: I think there are sufficient … gates right now, steps that … the United States has to go through before you actually fire a Hellfire missile. And again, part of that is the surveillance from the drone before the missile is actually fired. One of the biggest questions, as your listeners may know, was when the United States used a drone to kill the cleric [Anwar] al-Awlaki, and many people said, “Well, he’s an American. He has constitutional rights.” That was a subject of a lawsuit in Washington, D.C., and the judge basically dismissed the suit and said, “This is a matter for the president of the United States. This is not a matter that should be litigated in the courts.”
If you’re in a war paradigm, Mitch, the courts are not going to get involved, as far as who should be targeted or not. That’s under the province of the president, who is commander in chief.
Kokai: Do you suspect that, given our use of drones, this is going to be something that will be a larger part of the military function in years to come?
Silliman: Yeah, I really believe so, Mitch. As I said at the beginning, I think this is a foreshadow of the future. The Air Force is training pilots now, not so much to go into the cockpit, but to go into a closed compartment where they will actually fly these drones — unmanned drones. So I think we’re going to see more of that. It is proving more cost-effective. And again, as I mentioned, I think you can be much more precise, and in that way you are actually lessening the amount of civilian damage away from the target than if you’re sitting up there at 10,000 feet firing a missile from a manned jet.