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Can a case against a US serviceman be brought before the Federal government against those responsible for killings in war zones, like drone operators?

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    I'm voting to close this question as off-topic because this is trolling.
    – user28517
    Commented Feb 26, 2020 at 22:38
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    @Moo it seems more like a rant than trolling to me (albeit a rather concise rant). But still, the basic question exposes an interesting aspect of the law, as illustrated by Dale M's answer.
    – phoog
    Commented Feb 26, 2020 at 22:40
  • @phoog taken in isolation, sure. In conjunction with the OPs other very recent questions along similar lines however, it's seems like a re-occuring troll to me.
    – user28517
    Commented Feb 26, 2020 at 22:44
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    To further evidence the low quality of this question and the appearance of being loaded, a VLQ answer with no legal explanation has been accepted. I'm therefore flagging it as abusive to the community and site which allows this much agenda to be added in content.
    – user4657
    Commented Feb 27, 2020 at 8:07
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    It's not abusive it's a polite and logical question
    – user30113
    Commented Feb 27, 2020 at 9:34

2 Answers 2

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Killing people is not illegal

Killing people in certain circumstances (e.g. murder, manslaughter, negligent driving occasioning death) is illegal but killing people when you have a lawful reason to do so isn't. Military drone pilots acting under legitimate military authority and complying with the rules of engagement for the particular armed conflict are legally allowed to kill people.

Whether they should be allowed to do so is a political and philosophical question, not a legal one.

Of course, a drone pilot acting without legal authority to murder someone can be charged with murder.

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  • So basically the military can kill literally anyone if a sufficiently senior person authorizes it?
    – user30113
    Commented Feb 26, 2020 at 22:47
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    @user30113 that conclusion does not follow from this answer. One counterexample: a drone pilot acting under an unlawful order from a sufficiently senior person does not act "under legitimate military authority" (a condition noted in this answer). Whether the drone pilot bears personal liability for the killing will I suppose depend on whether the drone pilot knew or should have known that the order was unlawful.
    – phoog
    Commented Feb 26, 2020 at 22:52
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    @user30113 there is always a higher authority, they just have to use violence better than you.
    – user28517
    Commented Feb 27, 2020 at 1:18
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    FWIW, I would have chosen the title "Killing People Is Not Always Illegal."
    – ohwilleke
    Commented Feb 27, 2020 at 21:14
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    Clearly the worst war crime is always losing the war.
    – Tiger Guy
    Commented Feb 28, 2020 at 17:05
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Short Answer

No.

The service member may not be prosecuted civilly or criminally or via a court-martial for carrying out the drone strike, assuming that it was done in furtherance of what the service member believed to be a facially lawful military order authorizing the drone strike.

However, if the service member without any authority to do so, makes unauthorized and forbidden use of a drone to murder someone his orders do not conceivably authorize him to kill with the drone, e.g. his girlfriend who was a civilian contractor at a U.S. base in the war zone who has not negligently been mistaken for an enemy subject to a lawful drone strike order issue to the drone operator, that is another story and might be actionable either in a civilian state or federal criminal proceeding, or more likely, in a court martial proceeding for various violations of federal criminal law and the Uniform Code of Military Justice. But this does not seem to be the kind of drone strike killing that the question is asking about, even though the question's language does not completely rule out this fact pattern.

Analysis

An active duty member of the U.S military has absolute immunity from liability under U.S. law for actions taken in furtherance of one or more military orders that the service member believes reasonably and in good faith to be lawful military orders.

Furthermore, under U.S. law, the sole forum for disciplining a soldier (under the Supremacy Clause and sovereign immunity principles and also separation of powers and statutory considerations) for illegal conduct in the course of his or her official duties as a service member is generally (although not quite always) a court-marital, which generally has to be convened by someone in his chain of command (subject to certain exceptions) who is generally the person who issued the order carried out, either directly or indirectly through the chain of command, and that person is estopped from later asserting that their own owner was unlawful in a court martial proceeding.

Also, any such criminal or quasi-criminal prosecution in a federal forum (which the question specifies), would have to be commenced (1) in the case of a court marital, by a military officer designated with the authority to do so in the Uniform Code of Military Justice (see the TV series JAG to see how this works), or (2) in a civilian U.S. District Court by a federal prosecutor after a U.S. grand jury indicted the individual.

A civilian, or enlisted member of the military, a member of another military force, or a U.S. military officer not sufficiently connected to the alleged offender, cannot convene a court martial proceeding for murder.

A private person may not commence a civilian federal criminal murder prosecution, federal criminal prosecutions for serious crimes have to be commenced by a federal government attorney authorized by a grand jury indictment and such an attorney would never, in practice, do so (in part, because the immunity defenses are so clear in the ordinary case as oppose to the unauthorized murder of the girlfriend case).

Private individuals can commence lawsuits for money damages in federal court that are civil and civilian rather than criminal or military proceedings. But, such a lawsuit would be dismissed at the outset on immunity grounds in a case like this one (even if the victim's next of kin could identify the particular person who conducted the drone strike which is impossible as a practical matter due to national security secrecy and would also result in an dismissal under the state secrets privilege). Also, the service member would have a right to counsel form the JAG corps in that civil lawsuit against him, in addition to any private legal counsel he or she chose to hire at his or her own expense.

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  • This is a good answer, I'm only rejecting it because the answer I accepted was deleted.
    – user30113
    Commented Feb 28, 2020 at 1:21

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