Over the past couple of months, I’ve been reading up on the legal issues surrounding “targeted killing”, primarily by use of Predator drones. Today my brother forwarded me this NYTimes Op-Ed on the subject, perhaps under the impression that I’d be as outraged over this as I have been over the Bush administration’s torture policies:
Recently, a number of legal objections have been raised against U.S. targeting practices. While today is obviously not the occasion for a detailed legal opinion responding to each of these objections, let me briefly address four:
First, some have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.
Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict—such as pilotless aircraft or so-called smart bombs—so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.
Third, some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.
Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
Obama’s position on the use of Predators inside Pakistan shouldn’t come as news to anybody. Obama was attacked by his contenders during the primaries for stating that he would pursue terrorists into Pakistan. He was attacked by McCain during the Presidential campaign for threatening to bomb terrorists inside Pakistan. A lot of people called that out as ridiculous. But it’s exactly what he’s been doing, pretty much since day one. I’d be surprised if any of our regular readers think this is inappropriate.
The left is trying to equate the legal justifications for targeted killing to “the torture memos”, including in this NYTimes op-ed:
I’m not qualified to answer these questions, and, besides, it doesn’t really matter what the correct answers are. The Obama administration has its lawyers scurrying to convince us that the answers are no and no, somewhat as the Bush administration dispatched John Yoo to justify its torture policy. And these answers, regardless of their legal merit, will be accepted so long as Americans are convinced that being safe in the post-9/11 world requires accepting them.
There’s a really huge difference, though. The arguments for targeted killing explain how the existing laws of war and various international conventions allow for the use of targeted killing as part of a program of preemptive self-defense, while the torture memos went out of their way to explain why the international conventions didn’t apply to the US or the GWoT. The validity of these arguments is hotly debated on both sides, but they should not be equated; they are, in fact, orthogonal arguments.
The papers Prof. Anderson has written, and the various discussions at international and Congressional panels that he discusses in his posts at The Volokh Conspiracy revolve around just this issue. There is an international peacenik element that is trying to narrow the definitions of combat and self-defense well beyond anything that’s been seen in the past. They’ve been targeting Israel on this for years, and now are turning their sights on our use of Predators. One of the key points that Prof. Anderson makes is that we need to be staking our our position, in the International community, for how the existing laws of war apply to the type of asymmetrical warfare we are currently facing. This is not dissimilar for the position I’ve take w.r.t. the detainee question - there needs to be a new international convention that applies to “enemy combatants” in the context of the GWoT, perhaps using DTA & MCA as its basis.
Now, I acknowledge that there is some conflict between the positions I’ve taken over the years on the detainee question and the position I take on targeted killing. Let me spend a few paragraphs trying to explain how I rationalize this discrepancy. Maybe you’ll agree with me; maybe you’ll think it’s hogwash.
At the most fundamental level, I see the Predator as nothing more than a high-tech/long-range sniper rifle. People claim that these are “robotic” weapons, but they are not. “Robotic” implies a certain degree of autonomy, and while you can argue that the Predator flight system is robotic (which isn’t really true, but whatever), the weapon systems on the Predator are all man-in-the-loop systems. I am not aware of any context in which a Predator makes an autonomous firing decision. Someone’s eyeballs are on the screen and that person is pulling a trigger. Hence, to me, if you object to the use of Predators, then you object to the use of snipers, acting on intelligence, taking out enemies in the field. I simply don’t see any difference.
Now, to be fair, there are those who do object to the use of snipers. And while I don’t agree with them, I’ll certainly accept their arguments against the Predator as consistent with their overall philosophy. But I don’t really have a problem with this use of force (well, I’d certainly prefer that we not need to do this, but I accept is as a necessary and appropriate weapon in our arsenal). I’ve never had a problem with Israel taking out Hamas or Hezbolhah leaders in Gaza or Lebanon. I don’t even have a huge issue with the recent (alleged) assassination in Dubai. And I don’t have a problem with our taking out AQ/Taliban leaders in Afghanistan, Pakistan, Yemen, etc.
I don’t even have an issue with Obama putting a US citizen on the kill list. The guy left the country and is actively prosecuting war against the US. That’s pretty much prototypical treason.
Boy, that seems inconsistent with my detainee/torture position, doesn’t it? But here’s the crux of the issue for me…
Detainees are under our control. Their continuing behavior, and their well-being, is our responsibility. How we behave, how we treat these people, reflects on us - on who we are, on how we want the world to see us. It fundamentally reflects on our honor as a nation.
But targeted killing is of people who are not under our control. They are conducting combat (or pre-combat) operations against us or our allies, and we have a responsibility to stop them, just like soldiers shooting at each other on a battlefield. The use of Predators provides our best tool for taking out the target with minimal collateral damage. Yes, innocent people will sometimes die. But what alternative do we have? Certainly if we had better weapons/systems to reduce/eliminate collateral damage, we would use them. But the Predator system is the best thing out there at this point.
If we were to capture these folk, then the detainee treatment rules would apply. If that traitor is captured, I expect him to not be tortured. I expect him to be tried for treason. And I won’t shed a tear if he is executed for his treason.
But should we sit back and let him do his thing because some people get upset about asymmetrical warfare? I don’t think so. Warfare hasn’t really been symmetrical since the days of the skirmish line and trench warfare. One side has always been seeking an advantage and using it if they can. When it’s used for terrorism (e.g. the bombings of London or Dresden), then there are significant moral issues. When it’s used to reduce casualties (e.g. the atomic bombs over Japan), that’s waging smart war. We could be expending thousands of lives hunting the terrorists, or using big, old-fashioned bombs, but why on earth would we? The Predator is our best current tool, and of course it should be used.
Again, I admit there are inconsistencies in my positions that people could rip apart. But to me, there is an internal consistency based on whether or not we’re discussing people under our control or outside our control, and that’s what lets me sleep at night.
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Foreign Shenanigans
Regarding those ridiculous US foreign policies that assure armageddon in our time.