The leaks on Obama's plan
Christopher Buckley- A faint echo of his father

On the legalities of killing terrorists

I taunted the UN Rapporteur yesterday for mouthing off and whinging about the fact that we are gleefully killing terrorists using drone strikes in Pakistan. I avoided the actual legality of such action basing my approval on the concept that if bad guys are trying to kill us or other innocents, then we have an inherent right to kill them first. Simple self defense. Well a smart lawyer guy who does know about these things agrees with me.

It needs to bear in mind that the justification of going after Al Qaeda in an armed conflict that takes place on a global basis will not satisfy critics of targeted killing or of “global wars on terror.”  There is a legal attack both on the idea of targeted killing and on the idea that it can be justified by reference to a geographically unbounded war.  But if one limits the war to Afghanistan, then what about Pakistan — or Somalia, or any other place in the world in which AQ might take refuge, but in which one could not say, under those standards, that an armed conflict was underway?  And what happens when the enemy is no longer Al Qaeda, but something else down the road? 

The US long had a plain answer to those questions, in the form of a speech by then-DOS Legal Adviser Abraham Sofaer in 1989, later issued in the Military Law Review that same year.  It addresses in a comprehensive way that issues of addressing cross-border terrorism, including self-defense in international law, the lawfulness of going after terrorists in safe havens where the government was unable or unwilling to control its own territory, why targeted killing did not violate the US regulation against “assassination,” and other topics.  I have been told by several sources that the speech was cleared by DOS, DOD, DOJ, and the White House; it was intended as a major statement of policy. 

So far as I understand, the US government has never withdrawn that speech as policy.  On the other hand, the US government seems to have narrowed significantly the grounds on which it concludes that targeted killing is justified — the documents are not public, so we don’t know for sure — to limit it to “armed conflict” and “combatants” — without taking account, if that is true, of targeted killings justified and necessitated by self defense that do not take place within an armed conflict in the technical sense of the term under international humanitarian law treaties.  US domestic law, after all, authorizes the CIA “fifth function” use of covert force as an exercise of lawful self-defense, and yet outside of armed conflict as defined under international humanitarian law — and for good reasons. 

The current Predator campaign in Pakistan appears to be run by the CIA.  The adminstration, in my view, ought to take a far more vigorous approach to defending the full lawfulness of that campaign, as well as other operations that the US might undertake, whether via the CIA or military special ops or a combination, outside of the geography of an “armed conflict” in any but the Bush administration’s “global” view of the armed conflict with Al Qaeda.  An excellent place for the administration to start would be for the current DOS Legal Adviser, Harold Koh, to reaffirm in toto the Sofaer 1989 speech as continuing, good policy and the legal views of the United States.