Friday, May 14, 2010

The Legality of Targeted Killings

It's well known by now that President Obama has ordered numerous drone attacks and ordered the killing of Anwar al-Awlaki, an American Muslim cleric allegedly living in Yemen and plotting terrorism against the United States.  The New York Times reports today that these orders are causing "unease."  We thought we'd elaborate.

The best legal justification offered by the administration is State Department Legal Adviser Harold Koh's speech in March to the American Society of International Law (below).  Koh argues that targeted killings are fully constitutional and within the President's powers as part of the United States's right under international law to defend itself (especially in time of war) and under the 2001 Authorization for Use of Military Force.

But Koh makes little mention of the assassination ban under long-standing executive order, E.O. 12333 (he concludes that it does not restrict lawful killings under the law of war), the Hague Convention's ban on "treacherous" killing of enemies, and the Army Field Manual's interpretation of the Hague Convention's ban (in paragraph 31) to prohibit assassination (to say nothing of the Due Process Clause)--all of which seem relevant, even if ultimately deemed inapplicable.  ("Assassination" is nowhere well defined and is subject to some dispute.  But, as the Congressional Reserach Service writes in this post-9/11 report on E.O. 12333 and the assassination ban, an Army memo issued in the process of reauthorizing the Army Field Manual defines "assassination" as a "surprise" attack during peacetime and notes that the Hague Convention does not preclude defining assassination this way also in wartime.)

Koh's justifications for tageted killings--and his omission of limitations upon targeted killings, as above--seem surprising, given his critiques of the Bush administration justifications for everything from warrantless wiretaps to torture.  For example, Koh testified before the Senate Judiciary Committee in 2008 that the AUMF was too vague an authority upon which to base these Bush administration policies.  He also argued for a more robust role for Congress and the courts.  Koh argued against inherent executive authority to conduct these programs, instead referring to Justice Jackson's three-part framework in Youngstown.

But if, as Koh argued, e.g., FISA limited President Bush's power to conduct warrantless wiretaps (or domestic and international law limited President Bush's power to torture, etc., etc.), why don't E.O. 12333, the Hague Convention, and the Army Field manual (and the Due Process Clause) limit President Obama's power to authorize targeted killings, putting the President's power at its lowest ebb under Jackson's framework?  Or at least, why aren't these sources of law even worthy of mention up against the inherent right of self defense, the law of war, and the AUMF (which was too vague for many presidential actions, by Koh's own reckoning)?  (Related: If the President's authority is at all in doubt, why not go to Congress and get specific authorization for them?)

There may be three reasons.

First, the administration may be relying upon inherent Article II, Commander in Chief, authority.  This seems unlikely, however, given the administration's repeated rejections of this position by the Bush administration.  In this area and others, Prsident Obama has gone out of his way to say that his actions are not based upon inherent Article II authority.

Second, Koh may have made the judgment that the nation's right to self-defense and the AUMF outweigh these restrictions.  But this seems implausible, given Koh's testimony to the Senate Judiciary Committee (above, and on other matters) carefully considering both the authorities and the restrictions upon presidential action under Jackson's framework (in a Hamdan-like way).

Finally, and most likely, Koh may have judged these authorities inapplicable--that President Obama's ordered killing of al-Awlaki was not an "assassination."  But this seems reminiscent of the Bush administration OLC memos defining around "torture."  Given the widespread critiques of the torture memos, we might have expected a little bit more from this administration about why a targeted killing isn't an "assassination."

Whatever the answer, Koh's positions seem to lead to the surprising result that there are greater protections against warrantless wiretapping and torture than against a targeted killing.

In any event, Koh's statement to the ASIL may not represent the administration's legal analysis.  But the problem is that we don't know.  The administration hasn't publicized its legal reasoning, even with the wide-spread reporting of the drone attacks and the ordered killing of al-Awlaki.  There can be little down-side to publicizing the reasoning, especially for an administration committed to transparency, unless the administration worries that it is a little too close to Bush administration positions on the constitutionality of presidential actions during wartime. 

SDS

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Comments

How would one respond to the position that, as I heard recently, a drone attack is no different than an artillery attack?

In Pakistan, who we are not at war with, this position has little merit. But in Afghanistan, maybe it does.

What is the difference between firing a shell at a target several miles away different than firing a drone missile from a further distance?

Then again, are we really at war with Afghanistan or in Afghanistan? With Iraq or in Iraq? With Pakistan or in Pakistan (or neither)?

Under that logic, killing Yamamoto was cool because we were at war with Japan, but not in. So it is an interesting question.

Posted by: Darren | May 19, 2010 7:38:40 PM

Under international law, which can be faithfully executed by the President under U.S. Const. art II, Sec. 3, self-defense targetings can be lawful. See
http://ssrn.com/abstract=1520717

Posted by: Jordan Paust | May 21, 2010 2:50:53 PM

Dear Jordan,

Many thanks for your response and the link to your excellent paper. I guess there are two questions. First, how far does self-defense extend (and who gets to say)? Second, what about reasonableness and proportionality of response? Your paper goes into both, and I commend it to readers.

As to the second point--and focusing on the administration's ordered killing of al-Awklaki--I found this paragraph from your paper particularly helpful:

In the context of war, if the U.S. intentionally targets a civilian who is known to not be taking a direct and active part in hostilities, the targeting would violate the laws of war. The international community undoubtedly would agree that al Qaeda and Taliban fighters traversing in and out of Afghanistan from Pakistan and their leaders are directly, continuously, and actively taking part in hostilities in Afghanistan whether or not they constantly take up the gun, but the community might not agree that drug lords and other civilians who merely finance al Qaeda or the Taliban take a direct part in hostilities. If it is not generally expected that they do, the international targeting of such a financier during the war in Afghanistan who is known to be merely a financier would be illegally and arguably "treacherous" and, if so, an "assassination," . . . One can recognize, therefore, that the threshold of permissibility under the laws of war concerning the intentional targeting of civilians is higher (requiring direct and active participation in hostilities) . . . .

(I omitted material going to your broader point, that human rights law provides a lower level protection--but nevertheless an applicable protection--against targeted killings during war.)

The problem is that we don't know precisely where al-Awlaki fits. Is he an al Qaeda or Taliban fighter? Or is he more like a financier? Or something else? Without more information or some other kind of check, it's hard to see how the claimed authority to kill al-Awlaki wouldn't also mean that the administration could order the killing of the financier (or the proverbial little old lady from Switzerland).

SDS

Posted by: Steven D. Schwinn | May 24, 2010 5:48:08 AM

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