Posted by Kenneth Anderson:
Targeted Killing in US Counterterrorism Strategy and Law:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244327954
In the last couple of years, much of my research and writing has been
devoted to the law and ethics of war, and with particular focus on
targeted killing, the concept of who may be targeted on the
battlefield for taking "direct part in hostilities," and robotics on
the battlefield. These issues come together in the Predator drone
campaign in Pakistan - a centerpiece of the counterterrorism and
counterinsurgency campaign that Candidate Obama ran on and his
administration has embraced as the 'smaller footprint' of warfare.
I am in favor of targeted killing, the drone campaign in Pakistan, and
these forms of increasingly targeted warfare. The Obama administration
was right to emphasize them in the campaign and right to see them as a
means of more discriminating warfare. It is a tragedy when a dozen
innocents are killed in a drone missile attack - but much, much more
of one when a military undertakes its activities using artillery. I
spent a chunk of my NGO career urging the United States to give up
landmines as indiscriminate weapons and to focus its military R&D on
coming up not with more destructive weapons, but more discriminating
ones. Well, to a considerable extent, it is doing so through robotics,
and I find it churlish at best for the humanitarian and human rights
groups to turn around and denounce these weapons in their turn. There
is a principle behind it - but the principle is merely functional
pacifism, the denunciation of the US using force that does not quite
have the courage to speak its name.
That said, I have grave concerns that the Obama administration does
not take sufficient account that even as its appreciation of its
strategic, including humanitarian, use grows, the space of its legal
rationale shrinks. We are potentially seeing a coming train wreck
between the Obama administration and the international "soft-law"
community - the NGOs and advocacy organizations, law professors and
academics, UN officials, European governments including their
universal jurisdiction prosecutors - over these issues. Or, worse,
perhaps the Obama administration sees the coming train wreck, and
figures that it can kick the can down the road to get past the next
eight years and then let a Republican administration take the heat.
I have written a paper on the topic (shameless self-promotion, but
this topic is important) which has just been posted as a [1]working
paper to SSRN and to the [2]Working Paper series on national security
of Brookings; it will appear as a chapter in a book Benjamin Wittes,
ed., Legislating the War on Terror: An Agenda for Reform (Brookings
Institution Press 2009).
([3]show)
The lineup of authors in the book is stellar - David Kris, Stuart
Taylor, Matthew Waxman, Bobby Chesney, Jack Goldsmith, and many
others. The authors of the chapters represent a highly informed,
distinctly centrist approach to the issues of counterterrorism, across
party lines. The chapters can be [4]downloaded in working paper format
at the Brookings site, or you can buy the book when it comes out in a
few months. It is one of the best informed discussions of US domestic
counterterrorism policy as a matter of legislation available - I
strongly recommend it.
As to my paper, well, it is not a law review or scholarly article, it
is a policy essay, and very blunt advice to the Obama administration
and the Congress to the effect of "use it or lose it" when it comes to
targted killing and its legal rationale. If the administration does
not carefully and firmly assert the traditional US views of
self-defense in international and US domestic law, it will find it
much harder to defend strategies that the Obama administration is
plainly committed to undertaking, with very good reasons. As articles
go, it does not mince words on what the administration and Congress
need to do to preserve the legal categories that underpin US
counterterrorism actions.
Here is the SSRN abstract; it can [5]downloaded as a pdf from either
SSRN or the Brookings site, if you're interested:
Targeted killing, particularly through the use of missiles fired
from Predator drone aircraft, has become an important, and
internationally controversial, part of the US war against al Qaeda
in Pakistan and other places. The Obama administration, both during
the campaign and in its first months in office, has publicly
embraced the strategy as a form of counterterrorism. This paper
argues, however, that unless the Obama administration takes careful
and assertive legal steps to protect it, targeted killing using
remote platforms such as drone aircraft will take on greater
strategic salience precisely as the Obama administration allows the
legal space for it in international law to shrink.
Moreover, the paper argues that non-state enemies of the United
States will not always be al Qaeda or groups covered by Security
Council resolutions or the US Authorization for the Use of Military
Force. Eventually there will emerge other threats that do not fall
within the existing armed conflicts, and the United States is
likely to seek to address at least some of those threats using its
inherent rights of self-defense, whether or not a conflict within
the meaning of international humanitarian law (IHL) and its
thresholds is underway, and using domestic law authority under the
statutes establishing the CIA. In that case, a US administration
seeking to offer a legal rationale justifying its use of targeted
killing might discover that reliance upon a state of IHL-armed
conflict does not provide it the robust authority to use force that
the US has traditionally asserted under its rights of inherent
self-defense.
This is a policy paper, not a law review or scholarly article, and
it offers blunt advice to the Obama administration and the US
Congress with a particular normative goal in mind - to preserve the
legal rationales for the use of self-defense in targeted killing,
whether or not an IHL armed conflict is underway, consistent with
the positions taken by the United States in the 1980s, and
culminating with a statement of the US position on self-defense
against terrorism and targeting terrorists in third-state safe
havens by then-State Department legal advisor Abraham Sofaer in
1989. The point of the paper is to urge the Obama administration,
and offer it advice, on how to preserve the legal category of
targeted killing as an aspect of inherent rights of self-defense
and US domestic law.
As such, this paper runs sharply counter to the dominant trend in
international law scholarship, which is overwhelmingly hostile to
the practice. It urges the Obama administration to consider
carefully ways in which apparently unrelated, broadly admirable
human rights goals, such as accepting extraterritorial application
of the International Covenant on Civil and Political Rights, or
accepting its standards as a complement to the lex specialis of
IHL, or accepting recent soft-law standards offered by some
influential NGOs such as the International Committee of the Red
Cross to define "direct participation in hostilities," have the
effect of making legally difficult, if not legally impossible, a
counterterrorism strategy of targeted killing using standoff
platforms that the Obama administration has correctly embraced as
both more effective and more discriminating from a humanitarian
stance. It is frank, practical advice to the Obama administration
that it must assert the legality of its practices in the face of a
hostile and influential international soft-law community or risk
losing the legal rationale for a signature strategy.
The draft policy paper runs 20,000 words and is a Working Paper of
the Series on Counterterrorism and American Statutory Law, a
project of the Brookings Institution, the Georgetown University Law
Center, and the Hoover Institution, none of whom are responsible
for the contents of individual papers. A finalized version of the
paper will appear in Benjamin Wittes, Legislating the War on
Terror: An Agenda for Reform (Brookings Institution Press 2009).
([6]hide)
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1415070
2. http://www.brookings.edu/papers/2009/0511_counterterrorism_anderson.aspx
3. file://localhost/var/www/powerblogs/volokh/posts/1244327954.html
4. http://www.brookings.edu/governance/counterterrorism-and-law.aspx
5. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1415070
6. file://localhost/var/www/powerblogs/volokh/posts/1244327954.html
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