law of war

The preliminary narrative surrounding the Justice Department’s white paper on targeted killing obtained by NBC News is marked by breathless consternation over the leeway it provides to administration officials.

The American Civil Liberties Union (ACLU) has described the memo as “a chilling document” and decried “the irresponsible extravagance” of the government’s claim to lawfully engage in the extrajudicial killing of American citizens. Legal scholars have panned the analysis as giving the White House cover to act as “judge, jury, and executioner.”

The document, however, is less chilling than confused. It is the work not of sanguinary enablers, but of constitutional lawyers who appear to lack familiarity with the laws of war.

The white paper is a bundle of contradictions. It asserts that the United States is in an armed conflict with al Qaeda and its associates, and that this armed conflict follows the enemy wherever it sets up a base of operations. In so doing, the memo explicitly rejects the argument advanced by some critics that the wartime norms enabling premeditated lethality only apply to “hot” conflict zones like Afghanistan.

If targeted killings are conducted in the context of armed conflict, then their pursuance is regulated by the laws of war. This body of law sanctions the acts of destruction inherent to war, but seeks to mitigate their worst excesses and consequences. As such, force must be directed at military objectives, exclude civilian targets, avoid excessive collateral damage, and prevent unnecessary suffering.

Under the laws of war, legitimate targets can be subjected to deadly force at any time and place. George Washington did not have to awaken the Hessians from their Christmas slumber and give them fair warning before his ambush at Trenton.

Moreover, while civilians must be spared from direct attack, they can render themselves lawful objects of lethal operations “for such time as they take a direct part in hostilities.” Through this mechanism, a nominal civilian may negate his protected status by virtue of his own hostile actions. The nationality of such an individual is irrelevant. An American citizen setting booby traps for the Viet Cong would surely have found himself in the crosshairs of an American sniper.

The laws of war thus provide the legal architecture for wartime conduct, but the white paper manufactures uncertainty by introducing concepts foreign to this area of jurisprudence.

For example, the memo requires that the proposed target pose “an imminent threat of violent attack against the United States,” even though imminence plays no role in the legal framework governing the conduct of hostilities. On the contrary, imminence is a concept drawn from the separate body of law regulating when a state may resort to force in the first place, particularly with respect to invoking the right of national self-defense. Since the memo presumes a pre-existing state of armed conflict with al Qaeda and its associated groups, the discussion of imminence is misplaced.

In addition, the memo mandates that capture be deemed infeasible before resorting to fatal attack. This requirement does not comport with wartime standards, wherein enemies wield lethal force against one another as a matter of course. Rather, it is reminiscent of the rules for law enforcement, which direct police officers to arrest suspects and only resort to deadly weaponry as a last resort.

The problem with the white paper’s reasoning is that it invites the very outcry that the release of the document has in fact provoked. By trying to fit important doctrines such as imminence and feasibility of capture into inappropriate contexts, the memo ends up contorting them beyond recognition.

For instance, the memo’s drafters endorse “a broader concept of imminence” which does not require “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” The ACLU cannot be blamed for countering that such verbal gymnastics threaten to “redefine the word imminence in a way that deprives the word of its ordinary meaning.” It is, as an ACLU attorney said, “the language of limits—but without any real restrictions.”

Most significantly, such confused logic and conflicting rhetoric run the risk of merely whetting the appetite of the nation’s critics, who deny the existence of a transnational armed conflict with al Qaeda-linked groups and contest the legality of most, if not all, targeted killings on that basis. U.S. inconsistency regarding the legal justifications for its counterterrorism programs undermines its ability to oppose such claims.

If U.S. officials have decided that drone strikes are good policy, and if their lawyers have determined they are being carried out in the context of an armed conflict, then the operations in question are governed by the laws of war. Sometimes the simplest answer is also the best one.

One of the more pernicious accusations made by opponents of U.S. targeted killing operations is that CIA personnel involved in drone warfare are violating the law. This argument, endorsed by many in the legal academy and human rights community, is meant to delegitimize the CIA counterterrorism offensive by equating its operators with the transnational terrorists they are targeting.

However, such criminations are based on an overly rigid and inaccurate reading of the laws of war.

As a preliminary matter, the stated U.S. position is that the fight against al Qaeda constitutes an armed conflict sanctioned domestically by the post- 9/11 Authorization for the Use of Military Force, and internationally by the inherent right of self-defense acknowledged in the United Nations Charter.

The law of armed conflict, which governs the conduct of hostilities during wartime, does not prohibit the use of civilian personnel in combat. Rather, Additional Protocol I to the Geneva Conventions outlaws “perfidy,” or the deliberate manipulation of the rules of war to put law-abiding fighters at risk. Such conduct, which our enemies engage in constantly, includes “the feigning of civilian, non-combatant status” in order to mount ambushes.

Although Protocol I applies only under specified circumstances and the U.S. has not ratified it, we nonetheless acknowledge the prohibition on perfidy as binding customary law. Thus, it would be unlawful for the CIA to paint a drone with the insignia of a commercial airline carrier, and then use such camouflage to launch sneak attacks on civilian airports.

Since the use of CIA drone operators is not illegal per se, the next issue is the status of its workforce under the law of armed conflict. This discussion is largely academic, because it considers whether CIA pilots would merit status as prisoners of war (POWs) if captured. Of course, no one imagines that al Qaeda would apply a legal analysis to this question, which at least partly explains why the physical remove of drone technology is so valuable in a fight against lawless enemies.

As a general rule, soldiers in war are entitled to “belligerent immunity,” which means that because they are authorized to directly participate in hostilities, they cannot be held liable for the warlike acts they commit. As the famed Nuremberg prosecutor Telford Taylor wrote, “War consists largely of acts that would be criminal if performed in time of peace,” but “the state of war lays a blanket of immunity over its warriors.” As such, enemy soldiers captured on the battlefield are held as POWs rather than tried as murderers.

The third Geneva Convention lays out a four-part test that armed groups must meet in order to qualify for POW status. Although these criteria are technically applicable in limited scenarios, they have gained larger acceptance over time as the indicia of lawful belligerency in general. The threshold factors include: (1) command responsibility, (2) distinctive insignia, (3) exposed weaponry, and (4) compliance with the laws of war.

Critics of U.S. targeting operations often contend that because CIA drone pilots are not sitting at their consoles in flight suits bearing Air Force rank insignia, they are entitled to neither belligerent immunity nor POW status, and could be tried for murder under the domestic laws of any foreign authority that apprehended them. While there are no doubt certain countries that would relish just such an opportunity, this is not a legally defensible assertion.

First, the legal requirement for fighters to display a distinguishing marker emphatically does not mean that even military service members must be in uniform 24 hours a day. In fact, because soldiers are valid military targets at all times during war, it is anticipated that if attacked while sleeping, they will immediately fight back in their underwear rather than wait to don their battle dress. Moreover, many an epic sea battle has been fought by sailors in shirtsleeves.

Second, it is important not to lose sight of the underlying principle animating the formalized requirements. Here, the basic rule is “distinction,” which requires belligerents to distinguish themselves from nearby civilians so as not to bring them into the enemy’s line of fire. This standard, although routinely and purposefully violated by our adversaries’ use of human shields, has no bearing on the attire of a drone operator at Langley.

While there is certainly room for debate over the proper role of intelligence agents in lethal operations, this is a matter of policy, not law. Branding CIA operators as scofflaws simply for doing their jobs is neither productive nor correct.