In the course of defending President Obama’s counterterrorism framework — which I believe does make the best of a bad situation in the case of detention, and makes valuable, nontrivial progress over his predecessor by complying with the rule of law when pursuing disturbing but necessary expansions to the FISA program — I’ve missed the point that his expansion of the use of Predator drones may not be entirely on the level. While I still do think Professor Feldman’s point about the civilian (and therefore noncombatant) status of operators probably risks sacrificing too much to form, the larger point, that this program should be subject to oversight, ought not be ignored.
As a background, a brief overview of the law of targeted killing. Executive Order 12,333, at § 2.11, forbids assassination. This prohibition mirrors the U.N. Charter’s rule against the same. However, the U.N. Charter, and international law, express with one voice a nation’s right to self defense. Accordingly, U.S. policy has been that the targeted removal of enemy operatives on the battlefield of a declared war is not “assassination” but “targeted killing.” Targeted killing as an incident to self-defense against an actual, imminent, or continuing threat is therefore a “policy rather than a legal decision,” and its legality can be fairly said to turn upon the status of the target. Elimination of a combatant is fair play, and no crime. International norms concur (cf. Aharon Barak, former President of the Israeli Supreme Court), but require that the target engage in something equaling or exceeding “unlawful support” of combatants, by, e.g., gathering intelligence or arming warriors, before targeted killing would be seen as lawful.
We construe the September 18, 2001 Authorization of Military Force (AUMF) as congressional authorization approximating a declaration of war, and Afghanistan, say, as the closest thing to a battlefield we have. Targeted killing is therefore appropriate in at least some circumstances abroad, but some limits attach.
American best practices — a collection of government memos that I only have in my Counterterrorism casebook, and can’t seem to find anywhere else — require that killing be necessary to avoid an imminent harm, and proportional to the need. It must also utterly avoid harming a U.S. person. The U.S. Constitution, as a compact between her citizens and her government, does not end at our borders, but protects our citizens from the unlawful deprivation of life, liberty, or property even abroad. See Reid v. Covert, 354 U.S. 1 (1957) (recognizing some limits). The Al-Harithi assassination was not therefore not legitimate, for several reasons; but sniping a car carrying an al Qaeda operative, with no alternative, might be, even if it kills civilians.
We can dispute this framework, but it’s the way American operatives view the law, and it does preserve an important and even necessary tool in the War on Terror. We need not hobble ourselves, or reason away our technological advantages — especially when we consider the alternative of putting American lives in danger — but we ought to deploy them with a modicum of responsibility.
Query whether a non-militant casualty rate of 30% meets that threshold — but the assassination of an American citizen, even as an incident to a military objective, never will.