On the Legality of Obama’s Drone War

In Politico, Daphne Eviator of Human Rights First, contests the Obama administration’s legal justification for a borderless, undeclared drone war in multiple countries, which is that the AUMF grants them the authority to take lethal action against al-Qaeda and its affiliates.

Though international law recognizes that a state may go to war against armed terrorist groups, that’s called a “non-international armed conflict.” Because of the difficulty of identifying the enemy, different rules apply.

In a non-international armed conflict like this, the only “enemies” targetable are those “directly participating in hostilities” against the United States, or performing a “continuous combat function” with armed groups targeting the U.S.

Her arguments are even more starkly made in the context of the now public policy of conducting “signature strikes,” that is, targeting groups of unidentified individuals.

18 thoughts on “On the Legality of Obama’s Drone War”

  1. Pingback: Bin Laden’s Declassified Documents and the Supposed ‘Affiliates’ « Antiwar.com Blog

  2. Is the legality determined by the size?
    Would semi-drones (with kamikaze pilots) be considered legal?

  3. These approaches include the notion that individuals in a society accept rules from legitimate authority in exchange for security and economic advantage (as in Rawls) – a social contract. The two theories that dominate contemporary human rights discussion are the interest theory and the will theory. Interest theory argues that the principal function of human rights is to protect and promote certain essential human interests, while will theory attempts to establish the validity of human rights based on the unique human capacity for freedom.

  4. The constitution gives only Congress the authority to take this country into war. Further, since all laws and legal documents, including the constitution, are assumed to be written with existing laws in mind, the constitution should be read to only authorize congress to declare war when our own nation has been attacked, or is threatened with imminent attack. In other words, no branch of government has the legal authority to take this country into a war of aggression, or to use our military to fight wars of other countries. It's simply not authorized and therefore is illegal.

    Beyond that, the president has no authority to order attacks launched against anyone until and unless a war has been declared. As commander in chief, he can "direct" the military to defend the nation, and/or once war has been declared. But the president has no authority to use the military as his private death squad to target those he selects throughout the world and murder them. Because it is not legally authorized, it is nothing more than murder.

  5. We know the supreme court is supporting the bush-cheney Imperial Presidency, carried on by Obama. The only way to end this disaster is to draft the language of a new law governing the president and congress, and demand it be passed.

    No more wars of aggression. No more using pacts and treaties as a sneaky way around the limitations in our constitution and in general law, which prohibit this country from engaging in wars of aggression or going around the world invading countries and claiming we're doing it to "defend" some other nation. If other nations need defending, they'd better build their own military.

  6. Imagine two cases where you decided to take up arms against those that attacked your village:
    1) soldiers moved in and blew stuff up.
    2) drones flew over and blew stuff up.

    In case one, you'd go after the soldiers. In case two, where would you attack? Where the drones originated, of course.

    The use of drones is a misguided and dangerous policy, because it encourages those that take up arms against them to attack civilian targets. (Not to mention all the other issues.)

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