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.

Attorney General Eric Holder expanded on that justification somewhat in March of this year, adding that the armed conflict is with a stateless enemy, and that the U.S. is entitled to use force against countries that are either unwilling or unable to prevent the operations of these terrorist groups. John Brennan added nothing new to explain the validity of the assumptions underlying those justifications – that there is an armed conflict with the various terrorist and insurgent organizations, and that the state can use force against countries that are unable or unwilling to prevent terrorist operations.

The problem is that while all of these representatives of the government keep asserting that the policy is in full compliance with international law, the majority of international law scholars and jurists outside of the U.S., and very many within it, do not agree with the most fundamental premises of the rationale. The United Nations Special Rapporteur for Extrajudicial Killing (himself a renowned American legal scholar), has held that such targeted killing constitutes extra-judicial killing in violation of human rights law. Just a few weeks ago, in the keynote address to the American Society of International Law, the President of the International Committee for the Red Cross, one of the key institutions in monitoring compliance with the laws of armed conflict, quite emphatically rejected the U.S. government assertion that it can be in a transnational armed conflict with amorphous terrorist organizations all over the world, without geographic limitation.

This is not the place to attempt an analysis of the highly complex issues raised by the various legal objections to the U.S. policy. But it is important to understand that there are several key questions that remain highly disputed. Koh, Holder and Brennan all emphasized the necessity of U.S. compliance with the laws of armed conflict. Indeed, it is only the privileges granted by such laws that could legitimate killing that would otherwise be murder or extrajudicial execution. But that legal regime itself defines the conditions in which armed conflict exists, thus triggering the operation of the legal regime’s rights, immunities, and constraints.

The sporadic violent attacks launched by various terrorist groups from various countries does not satisfy the criteria for the existence of armed conflict as a matter of law. At best, the U.S. must argue that the law of armed conflict needs to evolve to recognize and accommodate these new kinds of conflict. Brennan, however, did not address the issue, but merely re-asserted the contested claim that the U.S. is in an armed conflict with these groups.

Moreover, even if there were such an armed conflict, terrorists are not “combatants” under the law of armed conflict, but civilians who can only be targeted for such time as they take direct part in hostilities. It is not clear that the targeting process, on which Brennan spent considerable time but about which he disclosed very little, focuses on any such determination. Nor did Brennan address how it is that the killing by non-combatant CIA personnel can be lawful under the law of armed conflict. The U.S. is prosecuting insurgents in military commissions for having allegedly killed US troops without the privilege of being a combatant. Yet the CIA, the personnel of which do not enjoy combatant status under the law of armed conflict, is doing the lion’s share of the killing in the targeted killing program.

Finally, the justification says very little about the use of force against states like Yemen, Somalia, and Pakistan, in which the killings take place. When conducted without their consent, the missile strikes constitute a use of force against those states, in violation of the prohibition on the use of force in the United Nations Charter, unless it can be justified as self-defense.

International law on the use of force only permits the use of force in self-defense against another state for the purposes of striking a non-state actor within that state,  if that state has been substantially involved in supporting, directing, and facilitating the operations of the non-state actor (i.e. the terrorist organization). The fact that it is simply “unwilling or unable” to prevent terrorist operations is not a sufficient to attribute to the state responsibility for the terrorist group’s actions, and thus provide a basis for attacking the state (I have written in some detail on this issue elsewhere). So again, the U.S. might argue that the law on the use of force must adapt, but it is difficult to claim that the strikes are consistent with current international law. This issue too received no explanation.

The bottom line is that the Brennan speech was disappointing. Even the strong supporters of the policy have argued that there must be greater transparency not only in how it is implemented, but in developing a coherent legal justification that is persuasive. The Supreme Court of Israel, in considering the legality of its own targeted killing policy in 2002, held that there must be transparent and independent oversight of any such policy, including ex post review. We still know nothing of the actual process of targeting, and there is certainly no independent oversight. It is known that an Office of Legal Counsel memo has been prepared to provide the legal justification, but it remains classified. The administration has chosen to litigate rather than disclose it in response to an ACLU freedom of information request.

While purporting to address the calls for transparency and proclaiming how important it is for democracies to observe the rule of law, the administration continues to conduct its targeted killing policy in the shadows, and in a manner that leaves the rest of the world questioning America’s adherence to international law. Moreover, it may be establishing new norms and precedents that will justify the conduct of other countries, which will soon develop targeted killing policies of their own. And that, in the end, may not be in the best interests of U.S. national security.