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Technological Agency in the Co-Constitution of Legal Expertise and the US Drone Program

Published online by Cambridge University Press:  08 November 2013


On 30 September 2011, the US citizen Anwar al-Awlaki was killed in Yemen in what has become the most controversial incident of US ‘targeted killing’, or, as its critics would prefer, of the US practice of ‘extrajudicial executions’. This controversy over wording expresses a profound disagreement over the legal status of the US drone program. Target killing suggests that the drone program may be legally regulated. Extrajudicial execution suggests that it falls outside the realm of legality. This article does not seek to settle which terminology is the most appropriate. Instead it analyses the legal expertise struggling to do so and its implications. More specifically, it focuses on the processes through which drones constitute the legal expertise that constitutes the drone program as one of targeted killings and of extrajudicial executions; that is, on a process of co-constitution. Drawing theoretical inspiration from and combining new materialist approaches (especially as articulated by Bruno Latour) with the sociological approach of Pierre Bourdieu, the article shows that drones have ‘agency’ in the ‘field’ of legal expertise pertaining to the drone program. Drones are redrawing the boundaries of legal expertise both by making associations to new forms of expertise and by generating technological expert roles. They are also renegotiating what is valuable to expertise. Drones are making both transparency and secrecy core to expertise. However, and contrary to what is often claimed, this agency does not inescapably lead to the normalization of targeted killings. The article therefore concludes that acknowledging the agency of drones is important for understanding how legal expertise is formed but especially for underscoring the continued potential for controversy and politics.

INTERNATIONAL LEGAL THEORY: Symposium: Expertise, Uncertainty, and International Law
Copyright © Foundation of the Leiden Journal of International Law 2013 

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1 M. Atwood, ‘A Drone Scans the Wreckage’, New Yorker, 13 August 2012.

2 He is introduced as Professorial Lecturer, UCLA School of Law; former Associate Deputy General Counsel (International Affairs), Department of Defense. He was also assigned as a Lieutenant Colonel in the US Army Reserve to the International and Operational Law Division, Office of the Judge Advocate General, Department of the Army.

3 Beard, J., ‘Law and War in the Virtual Era’, (2009) 103 American Journal of International Law 3Google Scholar, at 422.

4 This covers a wide range (including air, naval, surface, and underground) of robots. For an overview see P. W. Singer, Wired for War: The Robotics Revolution and Conflict in the 21st Century (2009); E. Quintana, ‘The Ethics and Legal Implications of Military Unmanned Vehicles’, (2008) RUSI Occasional Paper; C. Cole, The Drone Wars Briefing (2012), (accessed 10 February 2013).

5 According to IISS data made publicly available by The Guardian, 11 countries use 56 types of UAVs as part of their military operations; (accessed 8 February 2013).

6 As, for example, in B. Bennett, ‘Director of Federal Drone-Program Targeted in Ethics Inquiry’, Los Angeles Times, 5 December 2011.

7 M. Mazzetti, ‘The Drone Zone’, New York Times, 8 July 2012.

8 ‘Flight of the Drones’, The Economist, 8 October 2011.

9 P. Alston, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions’ (2010) New York UN, and McCormack, W., ‘Targeted Killing at a Distance: Robotics and Self-Defense’, (2012) 25 Pacific McGeorge Global Business & Development Law Journal 361Google Scholar; Murphy, R. and Radsan, J., ‘Due Process and Targeted Killing of Terrorists’, (2009) 31 Cardozo Law Review 2Google Scholar, 405; Radsan, A. J. and Murphy, R., ‘The Evolution of Law and Policy for CIA Targeted Killing’, (2012) 5 Journal of National Security Law & Policy 2, 439Google Scholar.

10 Co-constitution is used in the sense of this special issue as a two-sided process in which the regulation and its object create each other simultaneously (in this case legal expertise and the drones in the drone program).

11 Krasmann, S., ‘Targeted Killing and Its Law: On a Mutually Constitutive Relationship’, (2012) 25 Leiden Journal of International Law 665CrossRefGoogle Scholar.

12 B. Latour, We Have Never Been Modern (1993).

13 See, for example, P. Bourdieu, Raisons pratiques: Sur la théorie de l’action (1994); Heidegger, M., ‘The Question Concerning Technology’, in Krell, D. (ed.), Basic Writings (1993)Google Scholar; and, for feminist theory, D. Haraway, Witness@Second_Millennium.FemaleMan©_Meets_Oncomouse™ (1997).

14 K. Barad, Meeting the Universe Half-Way: Quantum Physics and the Entanglement of Matter and Meaning (2007); J. Bennett, Vibrant Matter: A Political Ecology of Things (2010); and D. Coole and S. Frost (eds.), The New Materialisms: Ontology, Agency and Politics (2010).

15 B. Latour, Re-Assembling the Social: An Introduction to Actor-Network Theory (2005), 104.

16 B. Latour and S. Woolgar, Laboratory Life: The Social Construction of Scientific Facts (1979).

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18 Aradau, C., ‘Security That Matters: Critical Infrastructure and Objects of Protection’, (2010) 41 (5)Security DialogueCrossRefGoogle Scholar 491, at 504.

19 For the concepts in the order cited, Callon, M., ‘Some Elements of a Sociology of Translation: Domestication of the Scallops and the Fishermen of St Brieuc Bay’, in Law, J. (ed.), Power, Action and Belief: A New Sociology of Knowledge? (1986), 196Google Scholar; Haggerty, K. D. and Ericson, R. V., ‘The Surveillant Assemblage’, (2000) 51 (4)British Journal of Sociology 605Google ScholarPubMed; M. Power, Organized Uncertainty: Designing a World of Risk Management (2007), 27.

20 For example, B. Latour, On the Modern Cult of the Factish Gods (2010); or Schiermer, B., ‘Quasi-Objects, Cult Objects and Fashion Objects’, (2011) 28 (1)Theory, Culture & Society 81CrossRefGoogle Scholar.

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22 See Latour and Woolgar, supra note 16, at 281 and Ch. 3.

23 As Barad puts it: ‘meaning is not a human-based notion; rather meaning is an ongoing performance of the world in its differential intelligibility’. See supra note 14, 335. In rougher words, meaning is not something that floats around out there but is constantly performed into through a (differential) mix of human and material interpretations (intelligibility). Of course this differential intelligibility has a history and a context. But the central point is the idea that meaning is itself a hybrid notion involving the material.

24 Armitage, J., ‘From Discourse Networks to Cultural Mathematics: An Interview with Friedrich A. Kittler’, (2006) 23 (7–8)Theory, Culture & SocietyCrossRefGoogle Scholar 17, at 29.

25 The contention that such intelligence is already used makes it even more intuitive to conceptualize drones as more than passive tools. See Consortium on Emerging Technologies, Military Operations, and National Security (CETMONS), ‘International Governance of Autonomous Military Robots’, (2011) 12 The Columbia Science and Technology Law Review 272Google Scholar, at 284.

26 Bourdieu, P., ‘The Mystery of Ministry: From Particular Wills to the General Will’, (2004) 10 (4)Constellations 453Google Scholar.

27 Field is used following Bourdieu. For a chapter-length introduction to the field concept and further references: Leander, A., ‘Habitus and Field’, in Denemark, R. (ed.), Blackwell: International Studies Compendium Project (2010), 3255Google Scholar.

28 Symbolic power is the power inherent in specific understandings and worldviews, symbolic violence is the harm it does which always necessarily rests on the complicity of ‘the victim’. P. Bourdieu, ed. La misère du monde (1993).

29 Bourdieu, P., ‘The Force of Law: Towards a Sociology of the Juridical Field’, (1987) 38 Hastings Law Journal 814Google Scholar.

30 Leander, A., ‘The Promises, Problems and Potentials of a Bourdieu Inspired Approach to International Relations’, (2011) 5 (3)International Political Sociology 294CrossRefGoogle Scholar.

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33 P. Bourdieu, Sur l’etat: Cours au Collège de France 1989–1992 (2012).

34 P. Bourdieu, The Rules of Art: Genesis and Structure of the Literary Field (1996).

35 Lynch, M. and Cole, S., ‘Science and Technology Studies on Trial: Dilemmas of Expertise’, (2005) 35 (2)Social Studies of Science 269, at 282CrossRefGoogle Scholar. The question confronts a scholar who has published on fingerprint expertise in courts, who is himself called in as an expert on fingerprint expertise in courts.

36 Together with the Centre for Constitutional Rights, the ACLU filed a lawsuit in response to press reports that the United States had placed US citizen Anwar Al-Awlaki on a secret kill list, in August 2010 (Al-Aulaqi v. Obama). The lawsuit was dismissed with reference to the lack of legislation in the area. The two organizations followed up on the killing of Al-Awlaki in September 2011 with a second lawsuit that is still ongoing (Al-Aulaqi v. Panetta). More generally, the ACLU has also actively promoted public debate about the legality of the drone program through its web pages and numerous public appearances and statements related to the issue. For more information see

37 Burt, A. and Wagner, A., ‘Blurred Lines: An Argument for a More Robust Legal Framework Governing the CIA Drone Program’, (Fall 2012) 38 Yale Journal of International Law Online 1Google Scholar.

38 Chesney, R., ‘Military–Intelligence Convergence and the Law of the Title 10/Title 50 Debate’, (2012) 5 Journal of National Security Law & Policy 539, at 539Google Scholar.

39 Ibid, at 629.

40 Ibid, at 582.

41 Amongst many, Johnson, L. K., ‘Intelligence Analysis and Planning for Paramilitary Operations’, (2012) 5 Journal of National Security Law & Policy 481Google Scholar.

42 For the CIA see Center for Civilians in Conflict and the Human Rights Clinic at Columbia Law School (CCC), ‘The Civilian Impact of Drones: Unexamined Costs, Unanswered Questions’, The Modern Issues in Conflict Series (2012), 55; and for JSOC, see P. Chatterjee, ‘How Lawyers Sign off on Drone Attacks’, The Guardian, 15 June 2011.

43 See J. Gertler, ‘U.S. Unmanned Aerial Systems’, (2012) Congressional Research Service R42136; for the UK case, see Ministry of Defence (MoD), ‘The UK Approach to Unmanned Aircraft Systems’, (2011) Maj. Gen. Timothy McHale Joint Doctrine Note 2/11. See also J. Meyer, ‘The Predator War’, New Yorker, 26 October 2009; R. Carroll, ‘Special Report: Remote Warfare’, The Guardian, 3 August 2011; or E. Ratliff, ‘SHOOT! Annals of Technology’, New Yorker, 23 February 2009.

44 Indeed the readiness with which most observers, including the critically inclined, are willing to go along with the image governments and companies present and actively cultivate is surprising. For a rare exception see R. Gallagher, ‘Surveillance Drone Industry Plans PR Effort to Counter Negative Image’, The Guardian, 2 February 2012.

45 See Gertler, supra note 43, 6.

46 Office of Air Force Lessons Learned, Focus Area: Enduring Airpower Lessons from OEF/OIF Small Unmanned Aircraft Systems (2009) or ibid., at 20.

47 Washington Post, ‘Top Secret America’, available at (accessed 18 August 2012).

48 D. S. Cloud, ‘Civilian Contractors Playing Key Roles in U.S. Drone Operations’, Los Angeles Times, 29 December 2011.

50 See Quintana, supra note 4.

51 E. MacAskill Washington, ‘Afghanistan: Two US Marines Killed in Accidental Drone Attack’, The Guardian, 12 April 2011.

52 For examples and a detailed discussion of these issues, see CETMONS, supra note 25; Sharkey, N., ‘The Automation and Proliferation of Military Drones and the Protection of Civilians’, (2012) 9 (4)Journal of Law, Innovation and Technology 299Google Scholar; Sparrow, R., ‘Building a Better WarBot: Ethical Issues in the Design of Unmanned Systems for Military Applications’, (2009) 15 (2)Science and Engineering Ethics 169CrossRefGoogle ScholarPubMed.

53 Quoted in CCC, supra note 42, at 44.

54 For example, Gertler, supra note 43; MoD, supra note 43, para. 504; or C. Caryl, ‘Predators and Robots at War’, New York Review of Books, 29 September 2011.

55 See CCC, supra note 42, at 40.

56 Blank, L. R., ‘After “Top Gun”: How Drones Impact the Law of War’, (Spring 2012) 33 University of Pennsylvania Journal of International Law 675Google Scholar.

57 See CETMONS, supra note 25, at 273–9.

58 For characteristic listings of the advantages of drone technologies, see P. W. Singer, ‘Military Robots and the Laws of War’, (Winter 2009) New Atlantis 27, at 31–3; or CETMONS, supra note 25, at 279–80.

59 Respectively Chesney, supra note 38, at 583; and ‘veteran robot scientist Finkelstein’ quoted in Singer, supra note 58, 30.

60 According to MoD, supra note 43, at Para. 505: ‘a systems engineering approach will be the best model for developing the requirement and specification. Using such an approach, the legal framework for operating the platform would simply form a list of capability requirements that would sit alongside the usual technical and operational requirements’

61 See Meyer, supra note 43.

62 N. Sharkey, ‘Drone Race Will Ultimately Lead to a Sanitised Factory of Slaughter’, The Guardian, 3 August 2012; and, for more elaborate versions of the argument, Sharkey, N., ‘Saying “No!” to Lethal Autonomous Targeting’, (2010) 9 (4)Journal of Military EthicsCrossRefGoogle Scholar at 299.

63 G. Miller, ‘Obama's Pick for CIA Could Affect Drone Program’, Washington Post, 24 November 2012.

64 The industry organization AVUSI is concerned with the ‘negative’ image of the industry. On 2 November 2012, it launched a ‘Public Education Website to Highlight Benefits of Unmanned Systems’; see (accessed 19 December 2012).

65 For an introduction and overview of the discussion see Birchall, C., ‘Introduction to “Secrecy and Transparency”’, (2011) 28 (7–8)Theory, Culture & SocietyCrossRefGoogle Scholar 7–8, 7, at 18.

66 The first public acknowledgement took place in a speech by Brennan at the Woodrow Wilson Centre and details about it remain unconfirmed. See G. Miller, ‘Brennan Speech Is First Obama Acknowledgment of Use of Armed Drones’, Washington Post, 30 April 2012.

67 Ben Wizner in ‘Ten Years after 9/11’, An International Conference Organized by the European Center for Constitutional and Human Rights, and Amnesty International, available at (accessed 5 May 2012).

68 Living under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan, Report by the International Human Rights and Conflict Resolution Clinic (Stanford Law School) and Global Justice Clinic (NYU School of Law), (2012), 106.

69 J. Brennan, ‘Speech on Targeted Strikes’, Woodrow Wilson Centre Speech, 1 May 2012.

70 CCC, supra note 42, at 12.

71 Living under Drones, supra note 68, at 39.

72 For an overview, see CCC, supra note 42. For an article-length discussion of the performative effects of the precision arguments as well as their problems, see Zehfuss, M., ‘Targeting: Precision and the Production of Ethics’, (2010) 17 (3)European Journal of International Relations 543Google Scholar.

73 See Gertler, supra note 43; Gregory, D., ‘From a View to a Kill’, (2011) 28 (7–8)Theory, Culture & Society 188CrossRefGoogle Scholar.

74 N. Paumgarten, ‘Here's Looking at You: The World of Surveillance’, New Yorker, 14 May 2012.

75 See Beard, supra note 3, at 418.

76 Chatterjee (supra note 42) claims that the al-Udeid air base in Qatar, for example, has four lawyers permanently available and quotes a former CIA counsel who claims to have ‘reviewed’ on average a death warrant a week.

77 Examples often cited include a purported expectation of no civilian casualties and zero collateral damage. The pressure felt by those aware that their actions will be recorded, and that mistakes may have legal consequences, is also frequently referred to. See e.g. Chesney, supra note 38.

78 See CCC, supra note 42, at 63.

79 See Murphy and Radsan, supra note 9.

80 Adelseberg, S., ‘Bouncing the Executive's Blank Check: Judicial Review and the Targeting of Citizens’, (Summer 2012) 6 Harvard Law & Policy Review 438Google Scholar.

81 Cole, D., ‘The Taint of Torture: The Roles of Law and Policy in Our Descent to the Dark Side’, (2012) 49 Houston Law Review 53Google Scholar, at 62 and 66–7 respectively

82 Ibid. Cole's argument is primarily against the tendency to shift the terrain of discussion from the legal to the political and strategic − by suggesting that the targeted-killing program is inappropriate because of things like the resentment it creates or the vexed relations with international allies. As such, it constitutes an interesting defence of a strict interpretation of legal expertise (of the boundaries of the legal field, in the terminology of this paper).

83 See Beard, supra note 3, at 424; also Johnson, supra note 41.

84 Chris Rogers (former editor of the Harvard Human Right Journal, amongst others) in ‘Ten Years after 9/11’, supra note 67.

85 Horn, E., ‘Logics of Political Secrecy’, (2011) 28 (7–8)Theory, Culture & SocietyCrossRefGoogle Scholar 103.

86 These insights about the politics of technological agency are general. The analysis of ‘actants’ in ‘fields’ could be transported elsewhere, including to the study of other older military technologies. Comparisons along these lines would no doubt yield an enriched understanding both of the politics of technological agency in general and of the specificity of the agency of drones in particular. However, such comparisons will have to await further research.

87 For an overview of these calls see CETMONS, supra note 25.

88 Latour, B., ‘Turning around Politics’, (2007) 37 (5)Social Studies of ScienceCrossRefGoogle Scholar 811.

89 See Krasmann, supra note 11, at 666.