Debate Question #4

Drones. In the past years we’ve been using Predator drones and the like more and more to effect our will in unsafe territories. Dones have the advantage of not endangering US life and are very effective, but on the other side of the coin are very bad press for the US in those regions they are used and often cause civilian casualties. Drones have been used attacking targets in countries with which we are not at war.

Question: What principle decides when and were to use drones in neutral countries and how does that principle apply when considering other countries using the same rational to fly drones against targets in the US?

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57 comments

  1. Boonton says:

    So the US has no way to legally stop his actions. Is that what you’re saying, cause that’s what I’ve been saying all along. So where does this leave China.

    The question of whether or not the case gets tossed is probably pretty untested. No doubt the defense will argue for it but the prosecution has on its side that the US gov’t never asked for or encouraged illegal means to obtain the evidence…it literally ‘fell into their lap’ sort of like the example of the thief who steals your computer and causes criminal activity to come to light or when cops make an honest mistake on a search warrant and search the wrong house.

    But stopping his actions is not criminal prosecution, to stop someone implies you are preventing them from doing something in the future, not punishing them for past acts. There the CIA could probably put him under surveillence and even disrupt his communications if he is a national security risk…which he would be if he’s conducting a rogue war from US soil.

    Seriously. What law? What jurisdiction? I have no idea how to find that. I googled some. I know, for example, how to look up traffic and vehicular laws. You have some legal training right? Teach me here. How do you find the relevant laws?

    http://www.foreignpolicy.com/articles/2011/09/02/is_it_legal_for_americans_to_fight_in_another_country_s_army

    It seems it’s legal to go to another country and fight in their army (provided they are not fighting the US) but it is not legal to recruit people on behalf of a foreign army from inside the US. If your guy is recruiting from inside the US for people to fight in China, that would probably be breaking the law (I’m guessing the courts would view a terrorist force as a type of army in this case).

    Most of what I’m finding revolves around actually fighting in another country. For example, http://community.lawyers.com/forums/t/117429.aspx. A common theme, though, is that the *types* of things you do in the foreign country could come back on you in the US. I suspect the reason it hasn’t come up yet is because no one has seriously tried it. Tactical command and control of a battlefield is not really practical from your living room.

    I suspect there are probably laws against ‘munitions’ being transferred to foreign countries without various approvals and prosecutors would argue that controlling a terrorist agent would be a type of munition.

    As for ‘what law’ and ‘what jurisdiction’. The US gov’t has a monopoly on warmaking from US soil. I would view it as Constitutional for the Us gov’t to stop people from US soil attacking a foreign country even if they don’t have a specific law against it.

    Why would it? You keep letting the “we sympathise” part of my hypothetical drop.

    Do we sympathise enough to go to war with China? If not then we aren’t going to allow ourselves to be dragged into a war because someone thinks its a good idea to launch an attack against China from US soil. If so then the point is moot as we will go to war with China.

    Perhaps we could stop him, but we won’t because we mostly sympathize. But we aren’t trying very hard, just as Yemen/Pakistan…

    And a country should at this point think very carefully about sympathy. Allowing individuals to make war with another nation from their soil amounts to that nation going to war. If their sympathy is not great enough to go to war on their behalf, then they have to say no to them using their soil for attacks.

  2. Mark says:

    Boonton,

    Do we sympathise enough to go to war with China?

    Act of war != war. We would not go to war with, say, North Korea if they sank an allies submarine. I don’t think we would have gone to war if they sank one of ours. If Russia shot down a passenger airliner we didn’t go to war. Going to war with a major (or minor) nuclear power is a high bar. A single act of war would raise tensions and make for entertaining speeches in international forae but would not lead to war. This is why your “go to war” is a bad example.

    Yemen/Pakistan won’t “go to war” even if our drone attacks are an act of war (as they are), because the US is huge and has lots of big sticks and they are small players. Just as we wouldn’t go to war with China if they bombed a bar and grill on the West Coast.

    I suspect the reason it hasn’t come up yet is because no one has seriously tried it. Tactical command and control of a battlefield is not really practical from your living room.

    Do you really think that from your living room at your computer you could not establish as much “control” over operatives in India or China via the Internet as Mr bin Laden had over his al Qaeda operatives?

    The question of whether or not the case gets tossed is probably pretty untested. No doubt the defense will argue for it but the prosecution has on its side that the US gov’t never asked for or encouraged illegal means to obtain the evidence…it literally ‘fell into their lap’ sort of like the example of the thief who steals your computer and causes criminal activity to come to light or when cops make an honest mistake on a search warrant and search the wrong house.

    I think the arguments the defense would use are similar to that which the Mob used against the government. Recall to stop them, they required tax fraud to catch a lot of those guys, because “conspiracy” couldn’t be proven legally. Look at it this way, China is a lot like a “different” mob. Do you think the Chicago police would be right to use the confession of one gang member to incriminate a person if another gang brought it forward, having obtained that evidence by torture. The other gang (China) is an interested party. You are not having data “fall into your lap” one gang of criminals is bringing it so you’ll use it to your advantage. Another test, if I want you arrested, can I (as a private citizen) illegally wiretap and sneak in and get incriminating evidence illegally and bring it forward to be used against you? Wouldn’t that get tossed because I am not a disinterested party?

    ‘Cause if that’s the case then “friends of the police” can just do the torture for them.

    But stopping his actions is not criminal prosecution, to stop someone implies you are preventing them from doing something in the future, not punishing them for past acts.

    How? What’s really going to happen. Are the CIA going to keep him from going anywhere with a wifi hotspot? Are they going to shut down the wifi in every library he walks into, after all, there’d be now way to know which computer he’s going to use in there. He might even borrow yours to send a few emails out, eh?

    but it is not legal to recruit people on behalf of a foreign army from inside the US. If your guy is recruiting from inside the US for people to fight in China, that would probably be breaking the law (I’m guessing the courts would view a terrorist force as a type of army in this case).

    Is it illegal to offer “camping excursions” for foreign tourists? Because that’s how the defense is going to describe what he’s doing in Montana.

    You still haven’t addressed the “we are more sympathetic” problem. Why is that irrelevant? It’s why Yemen/Pakistan aren’t going after those guys very enthusiastically. We have two barriers to going after our citzen Uighur. We both sympathize, and unlike Y/P, we have lots of laws protecting the freedoms of people unless they break civil laws. We couldn’t figure out that the 9/11 guys were planning anything, why do you figure we’re going to cotton onto and go after Mr Uighur?

  3. Boonton says:

    Act of war != war. We would not go to war with, say, North Korea if they sank an allies submarine. I don’t think we would have gone to war if they sank one of ours. If Russia shot down a passenger airliner we didn’t go to war.

    In those cases tensions were diffused after the incident either by the offending power making it clear it had made a mistake or by at least ‘hanging back’ for a while till things cooled off. Not as easy to see an act of war being followed up by either ‘we’ll do it again’ or ‘we’ll let those on our soil do it again and again and again’ without ending up causing a war.

    Also keep in mind just because you didn’t get pulled over for the busted headlight last night doesn’t give you immunity tonight. That the US didn’t go to war after the USSR shot down an airliner doesn’t mean it would be safe for some other country to shoot down an airliner.

    Do you really think that from your living room at your computer you could not establish as much “control” over operatives in India or China via the Internet as Mr bin Laden had over his al Qaeda operatives?

    Probably illegal as that would be either recruiting or ‘exporting munitions’.

    Another test, if I want you arrested, can I (as a private citizen) illegally wiretap and sneak in and get incriminating evidence illegally and bring it forward to be used against you? Wouldn’t that get tossed because I am not a disinterested party?

    I’m not really sure. You might end up allowing the evidence to be used against me while at the same time getting prosecuted yourself for breaking and entering, etc.

    How? What’s really going to happen. Are the CIA going to keep him from going anywhere with a wifi hotspot? Are they going to shut down the wifi in every library he walks into, after all, there’d be now way to know which computer he’s going to use in there

    What exactly is he doing? Giving orders to agents in China to attack this or that target? It would seem all that need be done is monitor him and pass his messages onto China. Pretty soon his ‘command’ ability in the US would become worthless.

    Is it illegal to offer “camping excursions” for foreign tourists? Because that’s how the defense is going to describe what he’s doing in Montana.

    He can make his defense, the prosecution its.

    You still haven’t addressed the “we are more sympathetic” problem. Why is that irrelevant? It’s why Yemen/Pakistan aren’t going after those guys very enthusiastically. We have two barriers to going after our citzen Uighur. We both sympathize, and unlike Y/P, we have lots of laws protecting the freedoms of people unless they break civil laws

    Nonetheless we have to hold our sympathy in check. Suppose he was building an ICBM topped with a nuclear warhead that he intended to aim at China? Leaving aside any laws there might be about building your own bombs, I think you’d agree most people would feel their sympathy ends at the point of potentially getting us into being nuked. ‘Commanding’ forces from US soil is less dramatic but can be just as problematic as Pakistan’s ‘sympathy’ for those who support anti-US terrorism.

  4. Mark says:

    Boonton,

    Probably illegal as that would be either recruiting or ‘exporting munitions’.

    You first say it’s not possible. The remark wasn’t about it’s legality but the possibility. Once you grant the possibility, then you’ve got the problem that you have very little means of stopping it, or even detecting it in the states.

    Not as easy to see an act of war being followed up by either ‘we’ll do it again’ or ‘we’ll let those on our soil do it again and again and again’ without ending up causing a war.

    Nuclear war is really really expensive. You seem to think most nations are as insane as the Palestinians. They aren’t. Loss of an airliner is not going to justify almost certain risk of the annihilation on both sides of multiple major cities. You can argue it would, but you haven’t made that argument. It’s why “act of war” is not an argument you can make right now. You haven’t established it as a valid criteria.

    That the US didn’t go to war after the USSR shot down an airliner doesn’t mean it would be safe for some other country to shoot down an airliner.

    Right. Russia and China can shoot down airliners because they are big and dangerous. Afghanistan cannot. Yemen cannot. Is that your principle? We can attack Yemen because we are big and nasty. China and the US can attack because they are big and dangerous? It seems to me that’s your only distinguishing principle between our actions and that of a foreign power attacking US targets. Your definition and use of “act of war” needs work.

    It would seem all that need be done is monitor him and pass his messages onto China. Pretty soon his ‘command’ ability in the US would become worthless.

    First you say block him. When I point out that is likely impossible (shutting down the wifi hotspot at every establishment he walks into is going to be impossible). Then you say, gosh, just intercept his messages. Which had already I pointed out is also going to be next to impossible, because again, he can switch accounts, move methods, encrypt his messages. So they can’t really stop him without arresting him. Without evidence. Kinda problematic. So, are you as a liberal suggesting detainment of a US citizen without habeas?

    He can make his defense, the prosecution its.

    Which is likely to be all thrown out cause it’s all based on tainted evidence.

    Nonetheless we have to hold our sympathy in check.

    Why? China isn’t going to war over this. Neither are we over their response. He’s not building an ICBM … there are actual laws he’d be breaking possessing nuclear weapons is not legal. We’re not arguing he’s doing illegal things over here. Legal ones. Talking to people. Possibly running outdoor survival camps. All legal.

    The problem we have is that he hasn’t actually broken any laws. He’s like the mob boss. You can’t get him for talking to people, ’cause the people he’s talking to won’t talk except under duress, which is inadmissible. You’ve got the “get the mob boss” problem, he’s not committing crimes that you can pin on him. Commanding forces is (likely … still waiting for your law codes I think) just as illegal when it’s crime as when its insurgents. The problem is you can’t pin it on him, just like the mob boss. Unlike the mob boss, you’re not going to get him on tax evasion or RICOH statutes. Because the US has the nasty annoying civil liberties he’s going to go free. Which means …

    So, China is going to assassinate him on US soil. And by approval of Yemen attacks therefore you approve of attacks on US by similarity, I guess?

  5. Boonton says:

    Right. Russia and China can shoot down airliners because they are big and dangerous. Afghanistan cannot. Yemen cannot. Is that your principle? We can attack Yemen because we are big and nasty. China and the US can attack because they are big and dangerous? It seems to me that’s your only distinguishing principle between our actions and that of a foreign power attacking US targets

    Actually it would seem we would refrain from attacking the USSR or China after they shoot down an airliner because they are big and nasty. But if Yemen shoots down an airliner we’d attack as they are just nasty. The fact that a big country with nukes can sometimes get away with stuff a small country couldn’t doesn’t make it unethical to attack the small country when they have legitimately crossed the line. Yemen doesn’t get a pass to blow up airliners just because the USSR got one in the 80’s.

    First you say block him. When I point out that is likely impossible (shutting down the wifi hotspot at every establishment he walks into is going to be impossible). Then you say, gosh, just intercept his messages. Which had already I pointed out is also going to be next to impossible, because again, he can switch accounts, move methods, encrypt his messages

    You’re putting forth a very complicated hypothetical where future tech makes it impossible for a state to stop individuals or small groups from making war from its soil. In that case you’ve just broken the responsibility for sovereignity. I’m not sure what this has to do with Yemen or N. Pakistan where the terrorist activity is much more low tech and possible to control.

    Why? China isn’t going to war over this. Neither are we over their response

    We hardly can be so sure of that. The US got into WWI after the sinking of a passenger ship (the airline of its day). WWI started when a minor prince was killed by a nobody. The idea that the US should be ok with someone shooting down Chinese airlines from an Internet Cafe in Seattle because that sort of thing just isn’t big enough to really turn into a war between nuclear powers seems rather foolish to me.

    So, China is going to assassinate him on US soil. And by approval of Yemen attacks therefore you approve of attacks on US by similarity, I guess?

    Ultimately yes, if you’re going to construct a hypothetical so convoluted that there’s simply no way to stop Mr U from blowing stuff up in China via the comfort of his American living room then sooner or later China will take matters into their own hands and would seem to have International law on their side.

    So tell me then what the problem is? Can you construct an argument against the principle that nations have a self-defense right? Why not blow up Mr X in Yemen whose trying to blow stuff up in America?

  6. Mark says:

    Boonton,

    We hardly can be so sure of that.

    Oh, please. We are not going to start a nuclear war over a blown up bar. You know that. I know that. Stop being silly.

    You’re putting forth a very complicated hypothetical where future tech makes it impossible for a state to stop individuals or small groups from making war from its soil.

    Not future tech. Now. Technology we have right now this very minute. We have bootable USB drives. We have wifi. We have skype and similar, safe unbreakable or very hard to break communications is straightforward tech. This isn’t magic 3-d printing of carriers. This is right here, right now (actually it’s been here for 5-10 years or more).

    I’m not sure what this has to do with Yemen or N. Pakistan where the terrorist activity is much more low tech and possible to control.

    Lo tech, high tech. Hard to control is the key. They can’t control (because of will and means) . We can’t control (because of will, civil rights, and means). Therefore drones are justified. But they are not (see your principle below as I see you putting it).

    But if Yemen shoots down an airliner we’d attack as they are just nasty.

    No. If Yemen shoots down an airliner, we take them out. If China does they get the faux-angry diplomat treatment. That’s the distinction. And if I read you right that’s the whole reason we can send drones into Yemen with impunity, because they are small and can’t disagree.

    Why not blow up Mr X in Yemen whose trying to blow stuff up in America?

    Because you said China can’t blow Mr Uighur in San Fran up.

  7. Boonton says:

    Oh, please. We are not going to start a nuclear war over a blown up bar. You know that. I know that. Stop being silly.

    Do we really? You’re so sure a war between nuclear powers could avoid escalation into a nuclear one? It is interesting that I can’t think of a single war where both sides had nuclear weapons. In fact, even a full on confrontation army to army is hard to bring to mind (an exception might be China and the USSR which seem to have fought border skirmishes during some low points in their relations).

    Not future tech. Now. Technology we have right now this very minute. We have bootable USB drives. We have wifi.

    We do indeed, though we don’t seem to have many people willing to try it. Perhaps it’s one thing to recruit people to your camp and send them out to do terrorism (Bin Laden), or perhaps to get people to travel abroad to fight in a foreign cause (Hemingway in the Spainish Civil War or Libya today), it’s kind of different to take orders in battle from someone whose sitting in their living room thousands of miles away. Such disconnected command isn’t very good for morale and it’s a rather long communication line to keep safe.

    Lo tech, high tech. Hard to control is the key. They can’t control (because of will and means) . We can’t control (because of will, civil rights, and means). Therefore drones are justified.

    We haven’t yet encountered people making war on other countries from US soil who can’t legally be touched because of court decisons from the ACLU. Your assumption that a combination of civil rights can protect one from law enforcement while engaging in war from their living room is pretty shakey. But just suppose it’s true. Let’s just say that the SC rules hacking is free speech and it’s free speech to hack some laser system in space and start blowing up Chinese airlines. I don’t really see much of a ‘principle’ that at the end of the day would forbid China from taking the fellow out if the US wouldn’t. Nor do I see a principle that we have to let someone in Yemen direct bombing attacks on the US. I suspect if sucha case really came to court, the doctrine that would be invoked would be the mantra that the ‘Constitution is not a suicide pact’

    No. If Yemen shoots down an airliner, we take them out. If China does they get the faux-angry diplomat treatment. That’s the distinction. And if I read you right that’s the whole reason we can send drones into Yemen with impunity, because they are small and can’t disagree.

    Well that and China hasn’t tried to shoot down an airliner. Say it did and say we decided to try diplomatic solutions rather than risk war. So what? All that would establish is that a country with very powerful weapns might get away with acting unethically. How does that let Yemen off the hook? Does the cop let you off the hook because the mayor zipped by him a half hour ago going 30 mph over the limit?

    Because you said China can’t blow Mr Uighur in San Fran up.

    At the end of the day if we really said that Mr Uighur can blow stuff up in China from the comfort of his San Fran. home and we won’t do a thing about it we will be engaging in an act of war with China and risk the implications of that.