More Predator Drone Debate, in the Wall Street Journal, and What the Obama Administration Should Do as a Public Legal Position

The Wall Street Journal has a weekend editorial on the same topic as my National Journal post below, Drone Wars, January 9, 2010.  Interestingly, I find myself believing that the WSJ editorial gets it, if not precisely wrong, at least puts the emphasis exactly backwards.  The WSJ editorial is primarily concerned to defend the “war” frame as a legal proposition for the global war on terror, and through that lens defend Predator drone attacks.  Only secondarily does it offer the idea of customary self-defense law, not necessarily part of an “armed conflict” as defined under IHL – meaning, treaties such as the Geneva Conventions.

I think the WSJ’s priorities here are part of the problem – not precisely wrong, but the wrong order of priority.  You can defend, as I do, the idea of a war on terror as a strategic frame for addressing terrorism – without, however, believing that you get or need all the legal particulars of a legal state of war everywhere on the globe.  The better way to approach this gap between the strategic frame and the law is that even though the strategic “war on terror” is not a war in a legal sense in all places in the world anywhere a target happens to located, the gap is filled by customary law of self-defense.

The Obama, Bush, and Clinton administrations apparently believed that they were on firmer legal ground going after “combatants” in an “armed conflict,” rather than relying on the customary law of self defense as an independent ground for the use of force.  Certainly it sounded better, as a law-PR matter, to say that one was targeting “combatants.”  What these administrations seemingly neglected to consider, as a legal matter, is that law of war treaties and customary law defining armed conflict actually have conditions and thresholds that must be met before all the particulars of the laws of war kick in.  Armed conflict in a legal sense is lex specialis, and you get its particulars only if the circumstances meet either the treaty law, in the case of inter-state conflict, or the customary law standards for armed conflict with a non-state actor, which requires sustained, persistent fighting and, in my view, in a place, even if loosely defined, and not simply the whole planet.  Armed conflict can break out in new places with a nonstate actor, but it does have to meet those thresholds.

(There is a problem here, one that I won’t address fully, but is important and not really much noticed.  Although a new “armed conflict” can get going outside of existing ones, the bias in this way of conceiving of it is that (absent the self-defense rationale, and assuming the territorial contraints and sustained fighting thresholds as I have described them) a “new” theater of armed conflict can be initiated by the non-state actors, where the NSA chooses to fight, but not by the state forces.  But notice that this isn’t really an issue for the legal frame for which non-state actor versus state conflicts were originally conceived, internal conflicts and civil wars in a territory; the territory is the national territory and so the problem of “global” war does not really arise.  It arises only if one accepts that a state can only fight in an armed conflict and armed conflict is territorial and theater-defined as a matter of law, but for that reason a state cannot initiate that use of force in a military sense without violating some human rights norms in revving up, so to speak, the fighting to a level at which an armed conflict exists.  This is a separate issue, however, and I won’t say more about it here.  It isn’t a problem, anyway, under self-defense, which was partly why it was not an issue in the past.  Framed the way the US has been framing its war on terror, however, it introduces yet another legal asymmetry in “asymmetrical warfare.”)

If it does not meet those thresholds, then, so far as the “international community” is concerned, the applicable law is the full weight of human rights law, under a view (never accepted by the United States) that the most important human rights treaty in this matter, the International Covenant on Civil and Political Rights, applies to the acts of US agents outside of the territory of the United States.  That is the basis, for example, on which the claim of “extrajudicial execution” is made against US Predator strikes – particularly in places like Yemen or Somalia, in which, although there are Al Qaeda targets present, it is difficult to make out a state of armed conflict with a non-state actor, because the fighting is not sufficiently persistent or sustained.

To be sure, the customary law standards for armed conflict with a non-state actor do not make a huge amount of sense in a borderless sense – they were conceived as a threshold for the application of Common Article Three of the Geneva Conventions, which covers internal and civil wars with non-state actor, and not for transnational terrorists who migrate around to many different places.  It was an innovation of the US Supreme Court in Hamdan – wanting the substantive standards of CA3 and willing to say whatever seemed necessary to get them – to declare that CA3 could apply to a borderless terrorist group such as Al Qaeda when it had never been conceived as a provision that applied outside of the traditional idea of civil war, internal to a state’s territory, with perhaps some spillover to safe havens, but not something in which territory was irrelevant.  Which is to say, Hamdan implicitly endorsed the idea of a global war on terror, although the idea of a global war in armed conflict terms is exceedingly … innovative is perhaps the kindest word.  It would have been better if the Supreme Court had simply said that there were minimum standards that always applied, and they were best stated in CA3, rather than saying that CA3 standards applied because it was a CA3 conflict.  If you are going after results-jurisprudence, just say so.

The better approach to this, rather than a global war on terror of the kind that the WSJ editorial goes to great, if mistaken, lengths to defend, is the customary law of self-defense.  That’s what the WSJ ought to be calling for first, rather than as an afterthought.  That’s the legal authority that permits the US to strike at its enemies whether in a combat theater or not, in safe havens far away from any regular battlefield, and it is the traditional authority on which the US has always relied.  And it is the authority on which the Obama administration is actually relying, if one looks to how it behaves.  That is, if you asked US government lawyers twenty or twenty-five years ago on what basis the US would strike Al Qaeda targets in Somalia, the answer would likely be, customary law of self-defense – if a state is unable or unwilling to control its territory, the non-state actor safe havens are liable to attack.

The sovereign  “consent” argument that the WSJ puts first is true, as far as it goes – but it really ought to be the fall-back position.  Do we really think that if Yemen or Somalia refused to do anything about Al Qaeda operating from those territories, and refused to grant consent, the United States should or would refrain from attacking?  Consent is nice, but it is secondary to how the US in fact sees international law on this point, and how in fact it would behave. Ask candidate Obama who, after all, promised the American public that he would go after Al Qaeda in Pakistan, with or without Pakistan’s consent.  He was right, not just as a strategic matter, but as a matter of international law.  None of this is particular to the United States; this is how other great powers in the world that actually address military threats have behaved and would behave in regards to safe havens.

The US needs to plainly and publicly shift back to reliance upon customary law of self-defense in its Predator drone policies.  Not on a “global” war on terror, but on customary self-defense.  One reason this matters is that in the complex intertwining of activist, government, international organization, and academic positions around these debates, perception matters a lot.  One of the perceptions is that CIA officers engaged in these activities are legally much more vulnerable than a uniformed military person doing the identical task.  In making plain its reliance upon self-defense as the underlying legal basis for its targeted killing policy, the Obama administration has an important opportunity to make clear that self-defense law, which is not limited to armed conflict, allows – as US domestic law has since at least 1947 and the legislation creating the CIA – the use of force by civilian agents.  The reasons for using civilian agents versus military personnel are complicated – sometimes involving deniability, and other things.  But an assertion of self-defense as the legal basis would allow the Obama administration to affirm that it is lawful, under both international and domestic law, for CIA agents to engage in these activities, and that legal moves against them in other countries, now or in the future, would be distinctly unfriendlly.

The middle officials of the CIA in my estimation have doubts about that now – they see the whole activity moving the way that detention and interrogation did after 9/11, in part because targeting and detention, as Columbia Law professor Matthew Waxman has pointed out, have distinct similarities.  It is a point that both Waxman and Benjamin Wittes make in Shane Harris’ National Journal article.  The advocacy international community, for its part, seeks to move the debate that way.  Interrogation and detention have been made very legally uncertain activities for CIA personnel, and one part of targeted killing – only a part, however – is an incentive to kill rather than try to detain.  The advocacy folks would like to make Predator drone attacks as legally uncertain as detention and interrogation – and indications, at least in my experience, are that it does not take much uncertainty about what the future might hold in the way of Holder-style announcements, the possibility of indictments or arrest in Spain or other jurisdictions, and all that stretching into a long and unknown future, to induce changes in behavior by US personnel.  This is all very bad for the Obama administration, and it remains to be seen if it will step up to the plate and make clear that it stands behind its people, including its civilian officials in the CIA who are most vulnerable, on targeted killing.

It also remains to be seen whether Obama administration would actually be believed, as well.  It is an administration at risk of becoming known for saying merely whatever it thinks expedient in the moment, to whatever audience, for whatever ends.  You might disagree and it might indeed be an unfair characterization – but, again in my experience, that is what people in the relevant positions think.  The perception matters.  This is a legal position, however, and if the administration wants to reduce the legal uncertainty, it needs to have its legal officials state its legal position plainly and put themselves personally on the record as a matter of the US view of the law.  It matters if Harold Koh has reaffirmed his predecessors’ view on self-defense.

To that end, as well as the United States putting itself plainly on the record as to its legal rationales in the international community for targeted killing, the Obama administration needs to carry itself both beyond the narrow, inadequate, and not actually accurate legal position pressed by the WSJ editorial – and back to its customary law roots to the position that the US actually intends when it engages in targeted killing through Predators or other means, which is to say, self-defense.  The easiest way for the United States to make clear that this is its position as to what international law actually is, and that it is not an innovation on the US part nor a novelty, would be for it to return to Abraham Sofaer’s 1989 address on self-defense, a quite comprehensive speech on this topic regarding non-state actor terrorists, sovereignty and territory, the assassination ban, and other important topics in this area.  The WSJ editorial board needs to go back and re-read this speech, and press for it to be reaffirmed as US legal policy, and get away from its mistaken view that the way to approach targeted killing is as yet another way of reaffirming that this is a global war.  Self-defense gives the discretionary ability to attack anywhere in the world where a target is located, without having to make claims about a state of armed conflict everywhere and always across the world.

And the Obama administration, for its part, needs to reach beyond its indubitable state practice of targeted killing, and offer some opinio juris on the subject – i.e., its public and declared view of what international law on this topic is, as far as the US is concerned.  It should offer an affirmative rationale based in the law as the US has always understood it, and never disavowed – but not exactly reaffirmed in the last twenty years, either.  Let’s reduce the legal uncertainty and draw some firm lines.  A joint letter, signed by (oh, I don’t know, let’s dream) the general counsels or equivalents of DOS, DOD, DOJ, NSC, CIA, DNI, DHS, White House counsel, and perhaps a couple of others, reaffirming in toto the Sofaer address, and adding that any move by foreign states, courts, prosecutors, or international tribunals to go after American personnel, whether uniformed, civilian, or civilian contractors working to US government specifications, would be regarded as a distinctly unfriendly act.

(I’ll probably go back and fix some things later, but don’t have time now.)