Document Type

Article

Publication Date

2012

Publication Information

5 Journal of National Security Law and Policy 339 (2012)

Abstract

Many critiques of the Central Intelligence Agency’s alleged use of killer drones depend on law that does not bind the United States or on contestable applications of uncertain facts to vague law. While acknowledging a blurry line between law and policy, we continue to develop a due process for targeted killing. In the real world, intelligence is sometimes faulty, mistakes occur, and peaceful civilians are at risk. International humanitarian law, which applies during armed conflicts, demands very little in the way of process beyond the admonition to take feasible precautions. Even so, the intelligence-driven nature of targeted killing, and the accompanying concerns over mistakes and abuse, prompt the law – whether couched as IHL or something else – to develop specifics for a CIA drone program. To assist this development, the United States should publicize and defend its standards. If any of these standards turn out to be indefensible, the United States should abandon them and develop better rules for its shadow war. The law and policy for CIA drones should evolve toward accountability and transparency without blocking the sometimes necessary assertion of American force around the world.

Comments

This article is co-authored by Richard W. Murphy, Texas Tech University School of Law.

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