One of the more pernicious accusations made by opponents of U.S. targeted killing operations is that CIA personnel involved in drone warfare are violating the law. This argument, endorsed by many in the legal academy and human rights community, is meant to delegitimize the CIA counterterrorism offensive by equating its operators with the transnational terrorists they are targeting.
However, such criminations are based on an overly rigid and inaccurate reading of the laws of war.
As a preliminary matter, the stated U.S. position is that the fight against al Qaeda constitutes an armed conflict sanctioned domestically by the post- 9/11 Authorization for the Use of Military Force, and internationally by the inherent right of self-defense acknowledged in the United Nations Charter.
The law of armed conflict, which governs the conduct of hostilities during wartime, does not prohibit the use of civilian personnel in combat. Rather, Additional Protocol I to the Geneva Conventions outlaws “perfidy,” or the deliberate manipulation of the rules of war to put law-abiding fighters at risk. Such conduct, which our enemies engage in constantly, includes “the feigning of civilian, non-combatant status” in order to mount ambushes.
Although Protocol I applies only under specified circumstances and the U.S. has not ratified it, we nonetheless acknowledge the prohibition on perfidy as binding customary law. Thus, it would be unlawful for the CIA to paint a drone with the insignia of a commercial airline carrier, and then use such camouflage to launch sneak attacks on civilian airports.
Since the use of CIA drone operators is not illegal per se, the next issue is the status of its workforce under the law of armed conflict. This discussion is largely academic, because it considers whether CIA pilots would merit status as prisoners of war (POWs) if captured. Of course, no one imagines that al Qaeda would apply a legal analysis to this question, which at least partly explains why the physical remove of drone technology is so valuable in a fight against lawless enemies.
As a general rule, soldiers in war are entitled to “belligerent immunity,” which means that because they are authorized to directly participate in hostilities, they cannot be held liable for the warlike acts they commit. As the famed Nuremberg prosecutor Telford Taylor wrote, “War consists largely of acts that would be criminal if performed in time of peace,” but “the state of war lays a blanket of immunity over its warriors.” As such, enemy soldiers captured on the battlefield are held as POWs rather than tried as murderers.
The third Geneva Convention lays out a four-part test that armed groups must meet in order to qualify for POW status. Although these criteria are technically applicable in limited scenarios, they have gained larger acceptance over time as the indicia of lawful belligerency in general. The threshold factors include: (1) command responsibility, (2) distinctive insignia, (3) exposed weaponry, and (4) compliance with the laws of war.
Critics of U.S. targeting operations often contend that because CIA drone pilots are not sitting at their consoles in flight suits bearing Air Force rank insignia, they are entitled to neither belligerent immunity nor POW status, and could be tried for murder under the domestic laws of any foreign authority that apprehended them. While there are no doubt certain countries that would relish just such an opportunity, this is not a legally defensible assertion.
First, the legal requirement for fighters to display a distinguishing marker emphatically does not mean that even military service members must be in uniform 24 hours a day. In fact, because soldiers are valid military targets at all times during war, it is anticipated that if attacked while sleeping, they will immediately fight back in their underwear rather than wait to don their battle dress. Moreover, many an epic sea battle has been fought by sailors in shirtsleeves.
Second, it is important not to lose sight of the underlying principle animating the formalized requirements. Here, the basic rule is “distinction,” which requires belligerents to distinguish themselves from nearby civilians so as not to bring them into the enemy’s line of fire. This standard, although routinely and purposefully violated by our adversaries’ use of human shields, has no bearing on the attire of a drone operator at Langley.
While there is certainly room for debate over the proper role of intelligence agents in lethal operations, this is a matter of policy, not law. Branding CIA operators as scofflaws simply for doing their jobs is neither productive nor correct.