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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

Abstract

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.

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

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References

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.

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

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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.

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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 www.aclu.org/national-security/targeted-killings.

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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.

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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 www.auvsi.org/AUVSI/AUVSINews/AssociationNews/#AUVSIFAAMission (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.

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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.

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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.

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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.

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89 See Krasmann, supra note 11, at 666.