By: Captain Christopher J. Lin*
Abstract
Coined by Judge Frank H. Easterbrook as a rather tongue-in-cheek concept, the “law of the horse” broadly suggests that existing general legal principles can sufficiently govern new technologies. The law of the horse, however, may not be adequate in looking towards the more nuanced area of artificial intelligence as applied to military targeting operations.
This Article endeavors to explore the concept of justifiable human reliance on machine outputs during the targeting cycle, in light of certain factors that are highly likely to incline a commander to rely on machine outputs in making use of force decisions. Since such reliance at this point in the targeting process may be unavoidable, the focus should be on practices at earlier steps in that process that can ensure that this reliance is justified. In addition, even if it is justified, a commander should not automatically defer to machine outputs in every case but should be encouraged to use her own judgment to determine if there is reason to question or reject machine outputs if circumstances indicate that they are inaccurate. These steps can help ensure that the momentous decision to use lethal force is appropriately informed by, but not completely subordinate to the use of artificial intelligence to augment use of force decisions.
* Judge Advocate, United States Army. Presently assigned to the United States Army Pacific. LL.M., 2024, Georgetown University Law Center; J.D., 2017, UCLA School of Law; B.A., 2013, University of California, San Diego. Member of the D.C. Bar. The author extends his gratitude to COL John J. Merriam for inspiring this topic, and acknowledges the valuable contributions of David Barnes (BG, USA, Ret.), Professor Kevin Mullaney (CAPT, USN), and Professor Peter “Pooch” Picucci during the initial discussions. Additionally, thanks are owed to Professors Mitt Regan, James Schoettler (COL, USA, Ret.), and Daniel Wilf-Townsend for their generous suggestions and edits throughout the process. Finally, the author wishes to acknowledge the insightful editors at Penn State Law Review, especially Jackson England, Colin Hitt, Katherine Owens, Olivia Painchaud, and Drew Weglarz. The views and opinions presented herein are those of the author and do not necessarily represent the views of the United States Government, the Department of Defense (“DoD”), or its components. Appearance of, or reference to, any commercial products or services does not constitute DoD endorsement of those products or services. The appearance of external hyperlinks does not constitute DoD endorsement of the linked websites, or the information, products, or services therein.