by Julian Ku
Our own Ken Anderson is one of the most knowledgeable and thoughtful legal scholars on the question of targeted killings by the United States. And he has noted here and the Volokh Conspiracy, he has developed a complex analysis of the U.S. policy toward targeted killings, which grounds such killings in the international law of self-defense rather than the law of war. And he has criticized the failure of the Obama Administration to provide any legal justification for these killings. (His distillation of all of this can be found in this new Weekly Standard article.)
Right on cue, Roger Cohen of the NYT argues for, basically, the same thing, although he is a bit confused in his argument.
America is not at war. The Obama administration has declined to say anything about this doctrine of targeted killing. It’s not clear how you get on a list to be eliminated; who makes that call; whether the decision is based on past acts (revenge, say, for the killing of C.I.A. agents in Khost, Afghanistan) or only on corroborated intelligence demonstrating that the target is planning a terrorist attack; what, if any, the battlefield limits are; and what, if any, is the basis in law.
. . .
. . . On balance, President Obama, who campaigned against the “dark side” of the war on terror and has insisted that America must lead by example as a nation of laws, owes Americans an accounting of his targeted killing program.
Revenge killings don’t pass the test for me. They’re unacceptable under international law. I want to know that any target is selected because there is verifiable intelligence that he’s actively planning a terrorist attack on the United States or its allies; that the danger is pressing; that arrest is impossible; and that civilian lives are not wantonly risked.
The bar of pre-emptive self-defense is then passed. A pinpoint strike is better than the Afghan or Iraqi scenarios. But that bar must be high. America departs at its peril from its principles.
Cohen’s analysis seems reasonable, although his first claim: “America is not a war” muddles his analysis. In legal terms, there is little doubt that the U.S. is engaged in an armed conflict in Iraq and Afghanistan and that U.S. military activities there are governed by the law of war. Moreover, the Obama Administration has adopted the Bush Administration’s claim that the U.S. is also in a state of armed conflict with Al-Qaeda, a non-state actor.
It seems to me that targeted killings in the Iraq or Afghan theaters against combatants there should fall neatly within the law of armed conflict rules. And while some countries may grumble, I don’t think there is a serious dispute that the U.S. may engage in armed conflict, including targeted killings, in those theaters
The targeted killings of Al-Qaeda combatants in other countries like Pakistan do raise the hardest legal questions,compounded by the fact that the killings are carried out by non-military combatants on the U.S. side. From the Obama Administration point of view (I am guessing), this too is part of the armed conflict and is indistinguishable from an Afghan or Iraq attack. Cohen (following Ken Anderson and Stuart Taylor) isn’t satisfied by this analysis.
Harold! We really could use a legal opinion on this. Anytime now…