Air Force General Counsel Blog The chief legal officer and chief ethics official of the Department of the Air Force

16Dec/120

On The Radar: Killer Drones and U.S. Detainees

There are many questions on the horizon for how we engage in combat. This includes how we conduct warfare and the rights granted to enemy belligerants. The following two posts give greater insight into what the future may hold.

CRS on Detention of US Persons As Enemy Belligerents:

The Congressional Research Service released a report last week on the legal issues involved in the detention of U.S. Persons as Enemy Belligerents.  Given the current debate in Congress and in the blogosphere on the Feinstein Amendment to the NDAA, this analysis is timely.  The analysis comes to this conclusion:

In signing the 2012 NDAA into law, President Obama stated that his Administration does not intend to detain indefinitely U.S. citizens pursuant to the detention authority in Section 1021. However, given that the conflict may last beyond his term and that the 2012 NDAA appears to mandate at least temporary military detention for some non-U.S. citizens, it is possible that the Supreme Court has not issued its last word on “enemy combatants” and preventive detention as a means to prosecute hostilities authorized by the AUMF. Lower courts that have addressed questions the Supreme Court left unanswered have not achieved a consensus on the extent to which Congress has authorized the detention without trial of U.S. persons as “enemy combatants,” and Congress has not so far clarified its intent. If Hamdi stands for the proposition that U.S. citizens may be detained under the same circumstances that make noncitizens amenable to law-of-war detention, regardless of location, then the Guantanamo cases may provide sufficient legal precedent for detaining similarly situated persons within the United States. If, on the other hand, historical precedent has any bearing on the interpretation of the state of the law and authorities regarding detention of U.S. persons under the law of war, as preserved by Section 1021(e) of the 2012 NDAA, it seems difficult to conclude that the AUMF should be read to imply the authority to detain such persons unless they are part of the armed forces of a belligerent party to an armed conflict. Congress has on occasion exercised the authority to permit the detention of civilians without trial based on the risk they are deemed to pose to national security, but if a declaration of war alone has not sufficed to trigger that authority, it seems unlikely that an authorization to use force would be presumed to confer it.

Read it all here. What do you think?

Hat tip to Ben Wittes.

Kenneth Anderson summarizes the Killer Robot Debate:

In two posts, one on Opinio Juris and the other on LawFare, Kenneth Anderson has summarized the leading artciles, reports and blog posts on the issue of proposed limits on autonomous weapon systems. For anyone interested in this issue, I highly recommend Ken's two summary posts.

Charles A. Blanchard
General Counsel
United States Air Force