Comment on Jens Ohlin’s “Targeting Co-Belligerents”

(Published on Opinio Juris, as part of a book symposium, June 4, 2012)

Jens Ohlin’s chapter in Targeted Killings, Targeting Co-Belligerents,” provides an important analysis of one of the key questions in the targeted killing debate, and makes a persuasive argument in favor of one possible response to it. In doing so, however, I wonder if it leaves another fundamental question hanging, which I lay out below for him to address. First, however, let me provide a sketch of his argument.

Jens begins by noting how the US targeted killing policy, and the transnational terrorism against which it is directed, raises difficult questions regarding which legal regime should be controlling. Not only is there an ongoing debate as to whether responses to terrorism should be governed by domestic criminal law within a law enforcement paradigm, or public international law in the context of armed conflict, but even for those who accept the armed conflict paradigm there are debates over whether the principles of jus ad bellum or jus in bello are best suited to justify the targeted killing.

Against that backdrop, and assuming for the sake of his analysis that some targeted killing will be permissible in some circumstances, Jens addresses the question: “who can be targeted and why?” His stated objective is to investigate “the tension between national security and civil liberties through a distinctive framework: what linking principle can be used to connect the targeted individual with the collective group that represents the security threat?” As he explains, regardless of whether one approaches the problem from a jus in bello or a jus ad bellum perspective, the problem of linking the individual targeted to some collective is an essential step in the justification process. … Read more…

Obama Administration Fails to Address Legality of Targeted Killing

(Published in the Truman Doctrine blog, May, 2012)

In a speech at the Wilson Center on April 30, John Brennan, Assistant to the President on Homeland Security and Counterterrorism, addressed the subject of targeted killing. In particular, he set out to explain the legality, ethics, and operational wisdom of the policy of using drone-mounted missiles to kill suspected terrorists and insurgents in countries other than Afghanistan – that is countries with which the U.S. is not in an armed conflict. His speech was the most elaborate and open statement yet by the administration on the policy, which remains officially covert, but it provided little new analysis, and it did not respond to the most fundamental challenges to the policy.

The stated objective was a laudable one. He acknowledged that the U.S. policy of targeted killing has been the subject of significant international criticism. He referred to President Obama’s commitment, made in his Nobel Peace Prize acceptance speech, that the “United States of America must remain a standard bearer in the conduct of war,” and that “all nations, strong and weak alike, must adhere to standards that govern the use of force.” Moreover, Brennan stated that President Obama understands the need for greater transparency, and the requirement to explain to both the American people and the world the rationales for the policy.

Unfortunately, however, Brennan provided little new analysis to explain how the targeted killing adheres to the governing principles of international law. Harold Koh, legal counsel to the State Department, provided the basic legal justification two years ago – that is, that the U.S. is in an armed conflict with Al Qaeda, the Taliban and associated forces, such that members of those groups can be lawfully targeted as combatants in an armed conflict; and that the U.S. is entitled to use force in the exercise of its inherent right of self- defense. … Read more…

The Fallacies of the Torture Debate

(Published in The Huffington Post, May 19, 2011)

The torture debate has once again seeped into the public discourse in America, and it has us focusing once again on all the wrong issues. Suggestions have been made that information that Khalid Sheikh Mohammed provided while being water-boarded helped lead the CIA to bin Laden’s door. This has prompted the likes of John Yoo (author of the notorious torture memos signed by Jay Bybee) and former Attorney General Michael Mukasey, to argue that the case for water-boarding has been vindicated. Others, including Senator John McCain, have refuted the assertions that the trail to Bin Laden can be traced back to so-called “enhanced interrogation techniques.” In short, the debate is once again centering on the question of whether torture is effective.

First, it should be noted that the debate misconstrues the effectiveness argument. Few people would assert that torture can never produce so called “actionable intelligence.” The point, made extensively by FBI interrogators and other specialists in the field, is that torture produces less reliable intelligence than traditional (and lawful) methods of interrogation, since the victim will say anything to avoid the pain, some of it true but much of it not, creating the problem of trying to distinguish between fact and fiction. Moreover, a policy of torture creates longer term strategic costs in the effort to win over hearts and minds, which ultimately makes it counter-productive and ineffective from a broader perspective.

The key point, however, is that effectiveness is entirely beside the point. We should oppose and reject the use of torture even if it could be shown that it is effective. To his credit, John McCain also makes this argument. For those who do oppose torture, it is a profound mistake to be engaging in this debate about effectiveness. First of all, the arguments get reduced to the overly simplistic and binary question of whether it ever works, which is of course vulnerable to attack — just one example of torture producing one piece of accurate intelligence tends to undermine the entire position. Hence the debate today. But more importantly, engaging in this debate tends to suggest that if torture were found to be effective, then perhaps we might have to use it. But we would not, or should not, so why get trapped in this debate? We ought to stick to the real reasons for our objections.

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The Legal Implications of Military Intervention in Libya

(Published in The Huffington Post, March 2, 2011)

As the crisis in Libya deepens there is increasing chatter about the possibility of military intervention. At the moment this is suggested most frequently in the form of a no-fly-zone over Libya, in order to prevent Gaddafi from using the air force against civilian protestors.

A debate is developing over the wisdom of any American or Western military involvement, but as usual there is little being said about the international law principles that would be implicated by such operations. And in the context of the growing unrest throughout the region, perceptions of the legality or illegality of any U.S. military action could have a significant impact on the developing narrative in the Arab world regarding America’s role, and how the emerging regimes ought to frame their relations with the U.S. going forward. The law matters in this situation.

The starting point of the legal analysis is the basic prohibition in international law on the use of armed force against the territorial integrity or political independence of any state. The two primary exceptions to the prohibition are self-defense, which is obviously not applicable here, and operations authorized by the United Nations Security Council in response to a threat to international peace and security. There is no question, therefore, that if the U.N. Security Council passed a resolution authorizing the imposition of a no-fly-zone in order to maintain peace and security in and around Libya, as it did in Iraq in the 1990s, the U.S. and its NATO allies could do so with the full imprimatur of international law.

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