Targeted Killing, Safe Havens, and the President’s West Point Speech

Several times in his West Point speech on Afghanistan and Pakistan, President Obama declared that the US would not permit Al Qaeda or “violent extremists” the use of safe havens.  He specifically noted Pakistan, Yemen, and Somalia.  The President unsurprisingly never overtly mentioned Predator or drone missile strikes, or the CIA as the operational agents in many instances of these far-from-covert actions.  But there is little doubt that both in the speech and in actual doctrine, targeted killing through drone strikes has been endorsed and indeed extended.

It was a tactic initiated by the Bush administration, but it was embraced and championed by the Obama administration, expanded and made a centerpiece of operations by it, as news stories before and after this speech in the NYT and Washington Post have repeatedly reported.  But an important question remains as to whether the administration is preserving through use and ‘opinio juris’ the legal authority and doctrines that support these sensible tactics.

Not the only tool of US will, of course – the President went to great lengths to discuss diplomacy, values, and many “soft power” options.  Targeted killing is a means, and a limited one; moreover it is not a strategic end in itself.  And it is also quite true that although speeches of this kind are often constructed so as to make oblique references to be understood as such, it is also a mistake to interpret a large policy pronouncement by reference to particular phrases and oblique references in isolation from the larger whole.  But reading the whole speech, there is little doubt that targeted killing is included among the vital tools for the projection of US power – not just in Afghanistan, not just in Pakistan (and the speech several times referred to Afghanistan and Pakistan together, for obvious strategic reasons – but a concept that some in the international law community find wrong or disturbing), but in places beyond.

Was one reference to drone attacks inserted in the speech when the President said that the United States “will have to be nimble and precise in our use of military power”?  Whether that or any particular bit was a reference to targeted killing, however, a core message of the President’s address as a whole was that the US would target terrorist leadership worldwide, not just in Afghanistan and Pakistan, and in ways that can most easily be attributed to targeted killing, including via Predators:

High-ranking al Qaeda and Taliban leaders have been killed, and we have stepped up the pressure on al Qaeda world-wide.

And the President added that we “cannot tolerate a safe-haven for terrorists whose location is known, and whose intentions are clear.”  Those places in the world were not just limited to AfPak, but specifically mentioned “Somalia and Yemen or elsewhere.”  Still, that said, the full context of this quotation shows that the administration regards soft power and hard power together in confronting “violent extremists”; there are multiple ways of interpreting this passage and what are undoubtedly its deliberate ambiguities:

The struggle against violent extremism will not be finished quickly, and it extends well beyond Afghanistan and Pakistan. It will be an enduring test of our free society, and our leadership in the world. And unlike the great power conflicts and clear lines of division that defined the 20th century, our effort will involve disorderly regions and diffuse enemies.

So as a result, America will have to show our strength in the way that we end wars and prevent conflict. We will have to be nimble and precise in our use of military power. Where al Qaeda and its allies attempt to establish a foothold – whether in Somalia or Yemen or elsewhere – they must be confronted by growing pressure and strong partnerships.

And we cannot count on military might alone. We have to invest in our homeland security, because we cannot capture or kill every violent extremist abroad. We have to improve and better coordinate our intelligence, so that we stay one step ahead of shadowy networks.

Lest anyone doubt that targeted killing is an important, indeed key strategy, Scott Shane reported in the New York Times a few days after the West Point speech on the US government’s expansion of the Predator program (Jonathan noted this article earlier), and a vigorous, off the record defense of it with respect to the two core issues – identification of targets and collateral damage – by an unnamed senior source at the CIA.

Shane did outstanding reporting on the controversies surrounding drone targeted killing (I will come back in another post to discuss the collateral damage controversies, but the article is well worth reading on that question.)  It appears to me that the CIA – independent of the Obama administration? – is slowly waking up to the likelihood that its operatives and officials will be targeted by the international law and human rights groups, quite possibly with cooperation from courts in Europe or the ICC prosecutor, if not now, then down the road once the Obama administration is out of office and these often-career officials are left holding the bag.

But the issues are not just targeted killing in relation to safe havens and terrorist leadership.  As David Sanger and Eric Schmitt report today in the New York Times, the Obama administration is now saying that it will use force, even across the border into Pakistan.  This might seem unremarkable, since the CIA is obviously already operating there – without official acknowledgment, if not really “covertly” in the strict sense.  From the standpoint of international law and lawyers, however, cross-border operations raise issues of consent, sovereignty, the UN Charter, and so on.  The US government says that the government of Pakistan has privately, but not publicly, consented to the CIA Predator strikes.  Will the government of Pakistan consent publicly to military strikes cross border against safe havens?  If it does not, what is the legal situation?

Candidate Obama said he would go into Pakistan – no mention of consent – in order to go after Al Qaeda and Bin Laden.  The administration now seems to be signaling its willingness to go in with more forces, and overtly military forces, partly in pursuit of Al Qaeda, but more obviously in support of the Afghanistan war, to eliminate the safe havens for the Taliban.

What about consent by Pakistan as a legal matter?  Much of the international law community would say that without it, or without a Security Council authorization, such incursion is prohibited, except possibly under some narrow “hot pursuit” or a few other limited exceptions.  The Obama administration might say that it either has consent – but what does that mean if the Pakistan government will not publicly acknowledge it?  Or that it has Security Council authorization for the Afghanistan war, and the elimination of safe havens is incident to that – but is that really so?

Regardless of the discussion within the international law community, the United States has never accepted the view that safe havens across borders were inviolable.  On the contrary, the US position has always been that if a government is unable or unwilling to control its territory, safe havens in that territory were liable to attack.  The Obama administration needs to stand up and plainly reaffirm that doctrine.  Not just to assert the modified-limited-hangout, we’re-slightly-ashamed-of-ourselves claim that “we have consent” or that “the Security Council said okay” – but what the US has always taken as international law, that safe havens are liable to attack, if the sovereign state is unwilling or unable to control its territory.  It is the position taken most clearly in the 1989 Abraham Sofaer speech, as Legal Adviser to the State Department – a speech taken as USG policy and its official view of international law.  (The text of the speech can be found here in pdf scan of the Military Law Review, where it was re-printed, but there are easier to read versions at Westlaw.)

Would the Obama administration seriously doubt that this plain statement by Judge Sofaer is its actual view of the law today?  The Sofaer speech has never been withdrawn; it remains, so far as I know, the official view of the USG.  But it has been allowed to gather dust in the past decade or so.  It should explicitly reaffirmed as the underlying US view, as general principle of law.  It is not the complete statement of law, because it is about terrorism and does not go on to the (legally easier) question of eliminating safe havens in armed conflict:

The United States also supports the right of a State to strike terrorists within the territory of another State where the terrorists are using that territory as a location from which to launch terrorist attacks and where the State involved has failed to respond effectively to a demand that the attacks be stopped.

The United States, and likely the Obama administration, is going to confront situations that are not covered by state consent or a Security Council resolution – but in which it will act, under doctrines of self-defense.  It would be in the adminstration’s interest, and the long term interest of the United States, to reaffirm this doctrine at the general level, and not merely piecemeal.