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 working paper to SSRN and to the 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).
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 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 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).