It has come to my attention that you have now asked an additional question: “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” The answer to that question is no.

Eric Holder[1]

[This is Fred. G is off again, doing I know not what; but he did call, and asked if Larry and I were ready to do our bit on the drone issue. He was especially interested in our take on the Holder memo, quoted above.

  • Does it mean that if an American citizen is “not engaged in combat on American soil,” we can’t attack him anywhere? That would seem to exclude targeted killings in Yemen, and other foreign locations, even if Americans are fighting us there. It’s just a guess, but I don’t think the AG wanted to say that.
  • Or does it mean, simply, that Americans shouldn’t be targeted by drones in this country, unless they actually “engage in combat” here? That sounds more logical, but raises another question. When does a citizen cross the line from bystander to combatant?
  • And what about resident aliens, students, illegal immigrants, etc.? Suppose they go home for the summer, fight against us, then return for the fall. Surely we can arrest them on their return; but are they drone bait as well when they come back?”

Most likely G was over-analyzing the Holder Memo. In context, it seems to speak only to the question of whether drones can be used in this country, and the answer was “no,” not unless there are actual battles here. But of course the memo doesn’t say “actual battles.” It says that our adversaries have to be “in combat” against us on American soil. So is that different?

I’m not good at making these kinds of distinctions, but Larry is; so naturally I turn this kind of thing over to him whenever I can. Larry, when is someone “in combat” against us?]

“Thanks, Fred. You’ve asked a difficult question, but I think you know that. And you raise issues that I don’t deal with every day. In this country our military are the experts in applying force in hostile situations.[2] Not the armchair generals in the media, or the jabbering and shouting pundits, but the real warriors. So I thought I’d address your question by exploring the military view, and that means we have to talk about the law of war.”

“Good heavens! What’s that?”

“Another good question. I don’t want to write a treatise on the subject – I don’t have the background for it – so I’ll rely on some standard references. The U.S. Army, for example, defines the law of war as

… that part of international law that regulates the conduct of armed hostilities … It is the customary and treaty law applicable to the conduct of warfare on land and to relationships between belligerents and neutral states. The law of war includes treaties and international agreements to which the United States is a party, as well as applicable customary international law.[3]

The law of war kicks in when hostilities commence. No formal declaration of war is necessary.[4] The law of war ‘ceases to be applicable’ when the hostilities end.[5]

You might say that the law of war is an amalgam of treaties, international agreements and customary practice. It’s open to interpretation, of course; but there are some fairly clear rules.[6] And it does apply to belligerent parties, whether they think so or not.[7]

“What does it say?”

“Lots of things. For example, in war undefended ‘towns, villages, dwellings or buildings’ may not be bombed.[8] On the other hand, a dwelling occupied by ‘combatant forces,’ or a building through which such forces pass, may be attacked. It’s considered to be ‘defended.’[9]

“OK, Larry, I get the general idea. We can target enemy combatants, wherever they are; but, of course, we have to apply some sort of rule of reason. I’ve been reading along with you, and the book says that “loss of life and damage to property must not be out of proportion to the military advantage to be gained.”[10]

“That’s correct.”

“Fine; so who is a combatant, and when might he or she be ‘in combat’? Today we’re not dealing with an ordinary situation. Instead we have terrorists running around, apparently plotting everywhere. So can we bomb anywhere we like?”

“Well, the previous Administration pretty much set the mold back in 2002. They said, via the Department of Defense, that enemy combatants included (i) anyone who was a “member, agent or associate” of al Qaida or the Taliban, and (ii) could include U.S. citizens.

An ‘enemy combatant’ is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. In the current conflict with al Qaida and the Taliban, the term includes a member, agent, or associate of al Qaida or the Taliban. In applying this definition, the United States government has acted consistently with the observation of the Supreme Court of the United States in Ex parte Quirin:[11] ‘Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.’

‘Enemy combatant’ is a general category that subsumes two sub-categories: lawful and unlawful combatants.… Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention.[12]

At that time the Bush Administration was primarily concerned with how it should treat enemy combatants once they were caught. Could they be indefinitely detained? Yes, at least for the duration. Could they be tortured, err, subjected to ‘enhanced interrogation?’ Well, the lawful combatants were protected by the Geneva Conventions and were entitled to the rights and privileges of Prisoners of War. No torture for them.

But the ‘unlawful combatants,’ on the other hand, weren’t protected; or so it was thought. And who were they? Why any “member, agent, or associate of al Qaida or the Taliban.”

Of course, in 2006 the Army officially junked the whole notion of ‘enhanced interrogation.’ It declared that all persons (including unlawful combatants) ‘shall be treated humanely;’ no person ‘shall be subject to torture or cruel, inhuman, or degrading treatment or punishment….’[13] It prohibited mock executions, waterboarding, beatings, electric shock, and other similar tactics.[14]

“Yes, Larry, I remember that well. G pointed it out to me in great detail a couple of years ago. I have to admit I was rattled at the time, but today the change in policy looks to have been a good thing. Torture is a stupid, unreliable and ineffective way to get information, and it makes us lots of enemies. Generally it works only in the movies, and maybe in porn videos.[15]

But that’s not our subject. How does any of this relate to drone strikes on U.S. citizens?”

“Well, think about it. The Bush Administration thought that associates or members of al Qaida or the Taliban were “unlawful combatants.” If they are combatants of any type, they are legitimate targets, at least until they’re captured or surrender. Then they can’t be harmed. ‘It is especially forbidden  … to kill or wound an enemy who, having laid down his arms, or having no longer means of defense, has surrendered at discretion.’[16]

“But Larry, the case the Bush Administration cited, Ex parte Quirin, doesn’t really support the broad reading they gave it. The accused in that case were more than simple affiliates of the enemy. They (i) entered this country “bent on hostile acts,” (ii) with the “aid, guidance and direction” of the enemy. Is that another way of saying that they were active members of hostile forces, and in the field against us, perhaps following a plan of sabotage? Couldn’t one argue that simple membership in, or sympathy with al Qaida isn’t enough to qualify one as a ‘combatant?’”

“Perhaps, but I didn’t hear anybody in the Bush Administration or its media cohorts saying that. I’m not saying that the Bush people actually decided to use drones in the US. I have no evidence, one way or the other, except for their words, and haven’t heard about any drone strikes here. But I’ll bet they discussed it internally, and some of the real partisans thought that they could use any weapon against terrorists in this country. Anyway, no doubt there were lots of legal memos floating around. It would be really interesting to see what they thought.”

“But Eric Holder doesn’t want to use weaponized drones here, right?”

“Frankly, I’m not sure. He said – pardon the double negative – that a drone could not be used to kill an American citizen in this country if the citizen was “not engaged in combat.” That sort of begs the question. If you believe the Bush Administration, any citizen affiliated with al Qaida is a ‘combatant.’ Does that also mean they’re ‘engaged in combat,’ or is something more required?

If so, suppose an al Qaida affiliate comes to the United States. Does that act alone render him ‘engaged in combat?’ Or does he need to buy bomb parts? Or what if he calls for an anti-war protest, on the streets, or writes a book criticizing our involvement in the Middle East? Does either activity make him a propaganda warrior, and if so, is he ‘engaged in combat?’ What if he appears on AM Talk Radio, or on the Sunday morning talk shows?”[17]

“So what’s your view?”

“I already said, I don’t know. The Attorney General really needs to explain his position. And when he’s doing that, he ought to tell us if our Constitution and its Bill of Rights are superseded by the law of war. If so, under what circumstances does that happen?

And if the DOJ position is that drone strikes might be appropriate from time to time in this country, I would like to know why that would ever be the case. As G said a couple of weeks ago, we have federal, state and local police forces all over the place. Why would the Government ever authorize a drone strike, when police could be dispatched to make an arrest?

Under the law of war ‘loss of life and damage to property [in a strike] must not be out of proportion to the military advantage to be gained.’[18] When the police arrest someone they have a suspect to interrogate, evidence to analyze and so forth. A Hellfire Missile would destroy all of that. What’s the point, unless you want to destroy the evidence?”

“Larry we’re out of time and that’s a very good finale! You didn’t come out where I thought you might, but the trip was fascinating. And I liked the little touch of paranoia at the end.

But I have one final question. We’ve focused on the rights that citizens might have under our current drone policy. What about non-citizens, illegal immigrants, tourists, resident aliens, those kinds of people? Will they be treated any better, or any worse, than ordinary citizens?”

“As I read it, the AG’s memo deals only with the question of whether citizens can be struck down by drones in this country. He didn’t address the issue of non-citizens, or non-citizen belligerents. So really, I have no good clue on how to answer your question. I have suspicions, but no answers.[19]

“Thanks, Larry; I know you could only use reference materials in the public domain, but I’m sure you, and our readers, would like to see some of the classified memoranda on this subject that are supposed to be floating around over in DOJ. We will all learn a thing or two, if they’re ever released.

G will be back next time. I’m not sure what he plans to talk about, but he says it will be a different topic. No doubt our readers will appreciate the change.”


[1] See DOJ Letter from Eric Holder to Senator Rand Paul, dated March 7, 2013, at http://www.washingtonpost.com/blogs/post-politics/files/2013/03/Senator-Rand-Paul-Letter.pdf

[2] If you don’t believe me, take a look at the Army’s Posture Statement for FY 2001 or, more particularly, at Chapter 2, The Army Vision, at http://www.army.mil/aps/aps_ch2_2.htm

[3] This is from Army Field Manual No.  1 (June 2005), at par. 1-87, available at http://www.army.mil/fm1/

[4] See Army Field Manual 27-10, The Law of Land Warfare (1956, revised 1976) (hereafter “AFM 27-10, at __”) at par. 9.

[5] See AFM 27-10, at par. 10.

[6] See AFM 27-10, at par. 6: “Evidence of the customary law of war, arising from the general consent of States, may be found in judicial decisions, the writings of jurists, diplomatic correspondence, and other documentary material concerning the practice of States.” The manual is not law per se, but it has evidentiary value “insofar as [it bears] upon questions of custom and usage.” AFM 27-10, at par. 1. You can access this, among many other military instructions, manuals, etc. via a web portal maintained by Air War College, at Maxwell AFB, AL. Just go to: http://www.au.af.mil/au/awc/awcgate/awc-law.htm#usgov and search “Army Law Pubs.”

[7] See AFM 27-10, at par. 7(c): “The unwritten or customary law of war is binding upon all nations.” See also AFM 27-10, at par. 8(b): “The customary law of war applies to all cases of declared war or any other armed conflict which may arise between the United States and other nations, even if the state of war is not recognized by one of them.”

[8] See AFM 27-10, at par. 39.

[9] See AFM 27-10, at par. 40. See also AFM 27-10, at par. 42: “There is no prohibition of general application against bombardment from the air of combatant troops, defended places, or other legitimate military objectives.”

[10] See AFM 27-10, at par. 41.

[11] 317 U.S. 1, 37-38 (1942)

[12] See DOD letter from William Haynes, General Counsel to the Council on Foreign Relations, dated December 12, 2002 at http://www.cfr.org/international-law/enemy-combatants/p5312

[13] See AFM 2-22.3, Human Intelligence Collector Operations (September 6, 2006), at par. 5-74. You can find it at: http://www.fas.org/irp/doddir/army/fm2-22-3.pdf It also says: “Use of torture is not only illegal but also it is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the HUMINT collector wants to hear. Use of torture can also have many possible negative consequences at national and international levels.” See also AFM2-22.3 at p. viii.

[14] See AFM 2-22.3, at par. 5-75.

[15] See note 13.

[16] See AFM 27-10, at par. 29.

[17] If so, no doubt we could arrest some of these people on various charges, including conspiracy to sabotage. But could we also lay a Hellfire Missile on them say, in Times Square, in advance of a trial?

[18] See FM 27-10, at par. 41.

[19] What we’ve got here is a failure to speculate! Apologies to Strother Martin. For more information, go to the Wikipedia website and search “What we’ve got here is (a) failure to communicate,” or simply click here: http://en.wikipedia.org/wiki/What_we%27ve_got_here_is_(a)_failure_to_communicate Apparently Larry didn’t want to discuss par. 550 of FM 27-10, which provides that citizens of a neutral country lose their neutral status if they perform acts hostile to one belligerent party or another, or enlist in the armed forces of a belligerent. “In such a case, the neutral shall not be more severely treated by the belligerent as against whom he has abandoned his neutrality than a national of the other belligerent State could be for the same act.”