Rules of Engagement: Pro Bono ex Militari
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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.
The killing of this (unprivileged, unlawful) combatant enjoyed ample legal authority under both international and domestic law, and is, as a matter of law and policy, uncontroversial.