Tag Archives: Afghanistan

Over-the Horizon Drone Strikes in an Ongoing Global War: Afghanistan and Beyond

Laura A. Dickinson discusses the challenges and limitations of applying domestic and international legal frameworks, including jus ad bellum and international human rights law, as the US conducts over the horizon, unmanned aerial vehicle operations, while US officials provide conflicting statements on whether the US remains at war.

Dickinson examines Mitt Regan’s book Drone Strike: Analyzing the Impacts of Targeted Killing [see also Regan’s article in this volume] and discusses the book’s significance in gathering important data to understand the actual effectiveness of drones strikes in combating al Qaeda and associated groups and the impact of these drone strikes on civilians.

Dickinson then discusses why the national security community might go beyond that data and reconsider the international and domestic legal paradigms under which drone strikes occur. She argues that we need to do more than simply change our understanding of how drones and their impacts fit within the law of armed conflict but rather consider a broader paradigm shift.

By allowing the executive branch to skirt legal rules that might limit such extraterritorial uses of force, drones contribute to ongoing declarations of wars with no geographical loci and no temporal endpoints. Thus, Dickinson concludes that from the perspectives of international and domestic law, the ongoing use of drone strikes must be studied not only for its effects on the ground but also for its effects on the rule of law more generally.

The Covert Action Statute: The CIA’s Blank Check?

MAJ Peter Combe argues that the covert action statute prohibits the Central Intelligence Agency from violating self-executing treaties to which the United States is party, as well as non-self-executing treaties and customary international law implemented by statute, but it provides domestic legal authority to violate non-self-executing treaties and customary international law that have not been implemented through legislation by Congress. This application of the covert action statute in practice is illuminated through a case study of the legal issues surrounding the Osama bin Laden raid.

Addressing the Guantanamo “Legacy Problem”: Bringing Law-of-War Prolonged Military Detention & Criminal Prosecution into Closer Alignment

Abrams seeks to move the discussion on Guantanamo detainees forward by bringing law-of-war detention and criminal prosecution into closer alignment. The article analyzes the Obama Administration’s current approach of dealing with terrorists captured abroad and its preference for conducting criminal prosecutions whenever feasible. Abrams proposes several changes to the current system, including a decision-making framework for imposing further military detention after completion of the criminal process, which the administration has indicated is a possibility, and taking into account the criminal culpability of the detainee to impose a presumptive limit on indefinite detention, as ways to reform the two-track system and increase equality accordingly.