GQ interview with military law expert Scott Horton

At a recent press conference in Islamabad, a Pakistani reporter raised this issue to a noticeably frazzled Secretary of State Hilary Clinton. “What is actually terrorism in U.S. eyes?” the reporter asked. “Is it the killing of innocent people in, let’s say, drone attacks? Or is it the killing of innocent people in different parts of Pakistan, like the bomb blast in Peshawar two days ago? Which one is terrorism, do you think?”

An international law expert from Georgetown University has recently made the same point as the journalist:

CIA drone attacks produce America’s own unlawful combatants

In our current armed conflicts, there are two U.S. drone offensives. One is conducted by our armed forces, the other by the CIA. Every day, CIA agents and CIA contractors arm and pilot armed unmanned drones over combat zones in Afghanistan and Pakistan, including Pakistani tribal areas, to search out and kill Taliban and al-Qaeda fighters. In terms of international armed conflict, those CIA agents are, unlike their military counterparts but like the fighters they target, unlawful combatants. No less than their insurgent targets, they are fighters without uniforms or insignia, directly participating in hostilities, employing armed force contrary to the laws and customs of war. Even if they are sitting in Langley, the CIA pilots are civilians violating the requirement of distinction, a core concept of armed conflict, as they directly participate in hostilities.

He also makes a point at the end that’s extremely important:

And while the prosecution of CIA personnel is certainly not suggested, one wonders whether CIA civilians who are associated with armed drones appreciate their position in the law of armed conflict. Their superiors surely do.

The big reason for the expanded use of drones and the continued use of mercenaries is the political cover they provide.  Doing it through the CIA is a great way to escape congressional oversight (if congress actually intended to exercise it very seriously–as Scott Horton put it in the interview, it’s been “a complete joke”).  It would have been nice for them to at least rubber stamp the war in Pakistan rather than just adding a few lines into the annual DoD appropriations bill.