The Hybrid Rules of Drone Warfare

“I don’t think there’s any question but that we are at war,” said then-Attorney-General designate Eric Holder at his confirmation hearing in January 2009, agreeing with Senator Lindsey Graham that the United States and Al Qaeda were embroiled in a global armed conflict.

Three years later, with Guantanamo still open, military commission proceedings moving ahead, and terrorist suspects being killed on a routine basis by U.S. drones, Holder returned to the topic.  In a speech given earlier this month at Northwestern Law School, he reaffirmed his view that the country is at war with Al Qaeda, while acknowledging that it is not a conventional war.

*Translation into regular English follows.

The end result, it seems, may be a hybrid approach that takes military targeting powers and subjects them to more stringent civilian notions of due process.  We have seen a similar approach to detention powers since the U.S. Supreme Court’s 2004 ruling in Rasul v. Bush and Hamdi v. Rumsfeld.

When much is at stake, some amount of process is better than nothing.  Yet it is unclear whether, in real terms, these procedural changes have meaningfully improved substantive outcomes.

This means:

The drones should be controlled by the civilian leaders of the United States, for example, the legislature and the executive branch. The military is not a branch of the government. I do not consent to the military playing with wartoys on my dime.

Due Process is what keeps some innocent people out of prison. This right helps to prevent revolution. How you may ask? If you are charged with a crime, innocent, and not allowed access to competent legal counsel, would you feel kindly toward the government that unjustly imprisoned you?

Substantive outcomes: This likely means that the procedures were tweaked so as to provide the most beneficial outcomes for the jailers.


Due process prevents revolutions. I am all about preventing revolutions.

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