Ginsburg on "Rules for Drones"

Rules for Drones

The Obama administration has recently announced that it is developing a legal framework for drone warfare. It is now technically possible for a "pilot" sitting behind a computer terminal in Nevada or Virginia, with a few keystrokes, to eliminate virtually any person on the planet. But simply because it is technically possible does not make it a good idea, or a legal one. What legal principles should govern the use of drones to kill people?

Changes in technology often run ahead of the law that governs them, and drones are no exception. In general, soldiers on the battlefield are provided with an exception to the normal rules against killing. Drone operators, on the other hand, are not physically present on a battlefield; in some cases they are not even soldiers, but CIA agents. Why should we allow them the privilege of remote-control killing?

A basic first step must be to show that the normal rules of criminal law enforcement are insufficient to deal with the targeted individuals. The general rule in society is that those who commit wrongs can be subjected to detention and punishment, but only after a judicial process. A judge must approve an arrest warrant in advance, unless there is no opportunity to obtain one. This is to protect people from being wrongly targeted by the state.

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