I apologize for the self-serving step of linking to my own pieces on targeted killing and drone warfare, but I’ve been fielding a number of calls and emails today from press on these issues. I’m about to get in a car and drive to UVA, so I thought the most helpful thing I could do was provide a quick list of my writing on this, in case anyone is trying to find things. These pieces are about targeted killing and drone warfare; the team that killed Bin Laden went in on the ground, but for many reasons, the targeted killing part being central, these discussions might be useful to some journalists.
One point made in the Efficiency piece linked below is that targeted killing is the tactical tip of the spear in what works because of a huge effort at on-the-ground intelligence. That’s true with drones or human teams. Laura Meckler and Adam Entous, in the print version of their WSJ story this morning, point out that in recent years, the CIA’s immense efforts have resulted in the ability to determine their own targets, without having to go through the compromised ISI.
A second point in all this is that the outside world – people like me, for example, in international law outside of government – have clearly not caught up with the internal integration of special ops, military and CIA. On the outside, we are still thinking in binary terms, in policy and legal terms, it’s either CIA or military, but in fact it has long been both and, as the stories around Panetta and Petraeus noted last week, that integration is accelerating. I don’t think that we lawyers on the outside have caught up to that reality. As I have often said, however, I think the civilian agencies do themselves no favors over the long run, in terms of public legitimacy, by not engaging on the broad legal rationales for the use of force – particularly in programs such as the drone programs under the CIA that are not covert in Pakistan, but merely under some fig leaf of “deniability.”
Third, at this juncture, I would urge that now is the moment to consider a change of law and regulation to include a new category of reporting and accountability for “deniable” rather than truly and genuinely “covert” operations. The bin Laden attack was the latter; the larger drone counterterrorism program, merely deniable.
Off to UVA.
This piece was one of the early discussions of the legal and policy dimensions of this for the incoming Obama administration, the article that Ben Wittes quoted on Lawfare this morning. It dates back to 2009. SSRN download.
Very long Weekly Standard article from a year ago, just before Legal Adviser Koh addressed the US position on targeted killings and drones.
This piece is not yet published and not yet finished. It contains an important discussion about where the general perception of targeted killing and drones has gone in the last while – viz., it is more discriminating and sparing of civilians. It disentangles targeted killing from drone warfare. It also addresses a point that I find distressingly prevalent among commentators, even these days (e.g., David Ignatius, James Fallows, Jeffrey Goldberg), that drones make war “too easy.” it argues that the “too easy” is not just wrong and deeply offensive (the assumption is that not enough American personnel are at risk or getting killed, even if their conduct is within the legal standard of care in armed conflict and even if it is more sparing of civilians). ”Too easy” is also wrong because the idea of an efficient level of the resort to force (“too easy” – compared to what?) is simply incoherent insofar as there are “sides” in war. (This latter point is a little bit academic, because it was aimed at a philosophy and law conference, but the basic point is pretty clear, I think.)
This short draft piece destined for an online volume of essays by members of the Hoover Institution Task Force on National Security and Law addresses a vexing question – does war have a “legal geography” in which the law of war applies, and how does targeted killing using drones affect that?
This looks to walk through a number of arguments over targeted killing in Congressional testimony last year. Footnotes are probably the most important part.