CIA drone attacks produce Americas own unlawful combatants

My colleague, Gary Solis, is spot on in his analysis of our shadowy friends at the CIA in today's Washington (Com)post.

CIA drone attacks produce America's own unlawful combatants

By Gary Solis
Friday, March 12, 2010

In our current armed conflicts, there are two U.S. drone offensives. One is conducted by our armed forces, the other by the CIA. Every day, CIA agents and CIA contractors arm and pilot armed unmanned drones over combat zones in Afghanistan and Pakistan, including Pakistani tribal areas, to search out and kill Taliban and al-Qaeda fighters. In terms of international armed conflict, those CIA agents are, unlike their military counterparts but like the fighters they target, unlawful combatants. No less than their insurgent targets, they are fighters without uniforms or insignia, directly participating in hostilities, employing armed force contrary to the laws and customs of war. Even if they are sitting in Langley, the CIA pilots are civilians violating the requirement of distinction, a core concept of armed conflict, as they directly participate in hostilities.

Before the 1863 Lieber Code condemned civilian participation in combat, it was contrary to customary law. Today, civilian participation in combat is still prohibited by two 1977 protocols to the 1949 Geneva Conventions. Although the United States has not ratified the protocols, we consider the prohibition to be customary law, binding on all nations. Whether in international or non-international armed conflict, we kill terrorists who take a direct part in hostilities because their doing so negates their protection as civilians and renders them lawful targets. If captured, the unlawful acts committed during their direct participation makes them subject to prosecution in civilian courts or military tribunals. They are not entitled to prisoner-of-war status.

If the CIA civilian personnel recently killed by a suicide bomber in Khost, Afghanistan, were directly involved in supplying targeting data, arming or flying drones in the combat zone, they were lawful targets of the enemy, although the enemy himself was not a lawful combatant. It makes no difference that CIA civilians are employed by, or in the service of, the U.S. government or its armed forces. They are civilians; they wear no distinguishing uniform or sign, and if they input target data or pilot armed drones in the combat zone, they directly participate in hostilities -- which means they may be lawfully targeted.

Moreover, CIA civilian personnel who repeatedly and directly participate in hostilities may have what recent guidance from the International Committee of the Red Cross terms "a continuous combat function." That status, the ICRC guidance says, makes them legitimate targets whenever and wherever they may be found, including Langley. While the guidance speaks in terms of non-state actors, there is no reason why the same is not true of civilian agents of state actors such as the United States.

It is, of course, hardly likely that a Taliban or al-Qaeda bomber or sniper could operate in Northern Virginia. (In 1993, a Pakistani citizen illegally in the United States shot and killed two CIA employees en route to the agency's headquarters. He was not, however, affiliated with any political or religious group.)

And while the prosecution of CIA personnel is certainly not suggested, one wonders whether CIA civilians who are associated with armed drones appreciate their position in the law of armed conflict. Their superiors surely do.

Gary Solis, an adjunct professor at Georgetown University Law Center, is the author of "The Law of Armed Conflict."
Even the RAF( 39sqn)are now useing civilian contractors to arm and service their Reaper UAVs in Afghanistan
There has been a trend towards blurring the line between civil and military over probably the last 10-20 years. However, it also cuts the other way. If civil organisations and contractors are now increasingly doing direct combat and combat support roles, military is increasingly being tasked with civilian support, logistic and police roles.

In terms of cost and deniability having a force of anonymous contractors means never having to worry about more flag-draped coffins coming home. They are all assumed to be in it for the cash, and no one worries about one more dead mercenary or opportunist contractor.

To my mind, though, there is a real problem with accountability. If he who pays the piper calls the tune, who is actually in real control of some of these organisations? The taxpayer? the Government who has contracted them? The shareholders? The pension funds or hedge funds? The banks? What are their agendas, and what happens if they have clients on both sides of the conflict?

Who keeps an eye on upper management of these firms? Is the military qualified to do this, or should it be someone within the Int world?
Come On Chaps Let's Stick To The Rules...

Mr Taliban Does.........

tropper66 said:
Even the RAF( 39sqn)are now useing civilian contractors to arm and service their Reaper UAVs in Afghanistan
Which is a very different thing to 'flying' them and initiating weapons release, so what point are you making?

There's a very slippery slope here of the state sub-contracting the application of force to civilians rather than uniformed combatants. I had always understood that CIA et al could happily operate stuff for USC Title 50/intelligence purposes since it doesn't matter if intelligence collection is military or civilian, but that Title 10/'warfighting' was DOD/JCS business? So how have CIA acquired a combat role? I know they always have done covert warfare, but what's the legal basis?

The_Magician said:
Come On Chaps Let's Stick To The Rules...

Mr Taliban Does.........

If I understand you correctly, you are suggesting that we should not have to follow the "rules" since our enemy does not. With respect, this has been pretty much the case ever since the German practice (other than those few "minor" excursions involving the Gestapo) in WWII in that "we" (US and UK military at least-not our intelligence services mind you) have generally fought the "bad guys" so it is not a great surprise that they are not especially concerned with such niceties of the Geneva Conventions etc.

Especially in COIN ops, one key pillar of our enemies' doctrine is to get us to violate the "rules." If we do so, we play into their hands (regardless of the emotional satisfaction it may seem to give at least temporarily to the squaddie who does it--except for the psychopaths among us, the aftermath is usually quite destructive emotionally to those involved--not to mention politically on the national or coalition level given the "strategic corporal" era in which we fight).

To use an overworn expression popular in the US at least---"it is what it is" and if we professionals in the military cannot accept that we fight asymmetrically at many levels, many of which actually favor the "poor" insurgent/terrorist and are thus extremely frustrating at times, we should hang up our kit and uniforms and go be greeters at your local BQ or Tescos.

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