Article

Blurred lines : an argument for a more robust legal framework governing the CIA drone program

Andrew Burt [and] Alex Wagner

• The Yale journal of international law online, Vol. 38, Fall 2012, 15 p.

English

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In general, CIA employees are civilians and not combatants, and therefore do not enjoy any legal privilege to participate in hostilities pursuant to the laws of war. Military combatants are privileged to participate in hostilities and kill other combatants (or civilians who directly participate in hostilities) during armed conflict, where killing is a principal means of achieving the objective of attrition. Further, any such participation in hostilities, without marking themselves as such through uniforms or insignia to distinguish themselves from noncombatants, arguably renders CIA personnel in violation of the international humanitarian law requirement known as “distinction.” That has led many to question whether the CIA civilian drone operators who engage in armed attacks against members of al Qaeda, the Taliban, and their associated forces might share the same legal status as the terrorists they combat. Initially, this Essay attempts to unpack that potential irony, laying out the legal framework that governs the law of armed conflict. More importantly, however, we propose possible courses of action that the Obama Administration could take to realign, revise, and strengthen the legal framework on which its highly effective drone program is based. We suggest two possible courses of action. First, and perhaps most intuitively, the Administration could transfer its drone program to military control and consolidate the separate CIA and military lists it reportedly maintains of targeted belligerents. Barring that transfer, however, we believe that broadening the U.S. government’s view of who qualifies as a legal combatant—by publicly announcing the United States’ acceptance, as a matter of legal obligation, of Articles 43 and 44 of the 1977 Additional Protocol I of the Geneva Conventions—would grant additional legitimacy under international law to buttress the drone program.

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