The Volokh Conspiracy

Just in time for President Obama’s big speech Thursday at the National Defense University on counterterrorism policy and strategy, Commentary Magazine has made available early my June cover article, “The Case for Drones.”  (Available free and not behind the subscriber wall.)  It’s a long essay arguing that drones are both effective and ethical, and addressing a number of the objections to each of those propositions.

The article has a particular audience in mind. It is aimed at conservatives and Republican members of Congress especially, to remind them that their sometimes knee-jerk attacks on the “imperial” Obama presidency risks one major piece of national security that the Obama administration has got well and truly right.  There’s no lack of imperial presidency, abuse of power material for conservatives to work with- pick your issue this week – but this particular issue is one where, if conservatives look down the road, they ought to see that any president, Republican or Democrat, will need to have available the national security tools of drone warfare and national security.  It would be a remarkably foolish thing if, by inattention or inappropriate and merely reflexive attacks on the Obama administration’s drone policy, Republicans in Congress wound up permitting drone warfare to be made politically, morally, or legally illegitimate – just as a future Republican president enters office and discovers that, yes, there are terrorist threats best addressed by drones.  Congressional Republicans, in the midst of the many abuse of power hearings, ought nonetheless to be scheduling hearings to invite current and former administration officials to reiterate their legal views on drone warfare, with the express purpose of standing with the President on this tool of national security and its permanent, legal, and legitimate place.

Commentary is a conservative magazine, obviously, and I’m writing there as a conservative for a conservative audience.  The framing above is political.  But there’s a much more neutral, less political way of framing the issue that ought equally to appeal to the broad national security center across both parties: the core elements of US counterterrorism policy, including detention policy and the whole range of what I’ve sometimes called “counterterrorism-on-offense” (including drones), needs to be put on a much firmer and more permanent basis.

Call this “institutional settlement” in counterterrorism strategy.  We need an institutional settlement around counterterrorism – we have a lot of policies that work pretty well, but they rely largely on executive branch discretion.  There are substantive reforms that need to be made in order to institutionalize counterterrorism policies, and they depend upon the two political branches coming together to give them legitimacy.  In my view there is broad agreement in the center as to these policies in substance; what they lack is a political foundation in actual legislation.  (But giving important credit, let’s note that Rep. Mac Thornberry (R-TX) has just offered legislation that would begin to address legislatively the accountability and oversight issues created by the growth of military special operations; on my first read, it looks like a very good start.)

The fault lies both with the administration and with Congress, but one way or another we today owe it to whoever is responsible for national security tomorrow to make sure that there is a stable, functional, institutionally legitimate framework going forward.  It won’t ever satisfy certain constituencies ever – a big chunk of the international community, Obama’s leftwing, or the Pauline wing of the Republican Party, which are simply at odds with the substance – but it is the pretty clear view of the broad center of both voters and this country’s leadership.  That said, precisely the fact that in the political center most everybody’s on board with the substance means that it’s hard to generate energy to give it the process, oversight, and accountability legs it needs to make its legitimacy permanent.  But institutional settlement, stability of the framework over time and administrations of different parties, matters hugely.

Certainly I hope the President’s speech tomorrow reaches out to address the needs of institutional settlement.  And I very much hope that Congress, and Congressional Republicans especially, take up the opportunity to find ways to engage legislatively – legislating as if there might be both Republicans and Democrats in the presidency.

(And thanks to John Podhoretz, editor of Commentary, for getting this June article up early in advance of the President’s speech, and for making it available free to non-subscribers.  Plus, for anyone interested, at this moment it looks as though I’ll be part of a roundtable commenting on the speech on To the Point on NPR tomorrow afternoon.)

Rep. Mac Thornberry (R-Texas), member of the US House of Representatives Armed Services Committee, plans to introduce a bill that would increase Congressional oversight over kill-capture operations conducted outside of Afghanistan by the US military.  University of Texas law professor Robert Chesney discusses the proposed legislation over at Lawfare, and gives a section by section commentary.  Whether this is an important step or not depends on one’s starting point, of course; I agree with Chesney that it is a big deal and a welcome step to regularizing . (Though if one’s view is that all these operations are unlawful, or that  they require judicial oversight, or something else, whether from the Left of the Democratic Party or what we might call the Pauline wing of the Republican Party, then you won’t be much moved.)

Seen within the framework of US law and oversight of overseas use of force operations, this is an important step.  A couple of observations.  First, this (soon-to-be) proposed legislation is with respect to operations conducted by the US military under US Code Title 10; it does not cover CIA activities, which are already subject to oversight and reporting under US Code Title 50.  Second, it covers US military operations with respect to the lines of oversight running back to the Armed Services committees; essentially it increases the role of the Armed Services committees in oversight of US military operations in what it defines as “Sensitive Military Operations” – which in practice means clandestine Joint Special Operations Command (JSOC) activities.  It does not alter the existing oversight processes of Congressional intelligence committees governing covert action as defined in US Code Title 50, but extends and increases oversight over military operations.  Why this focus on military operations conducted by JSOC?

Counterintuitive as many might find it, the CIA is subject to far greater oversight, and at a far higher level of government, in its conduct of Title 50 covert activities than the US military is in its conduct of armed operations under Title 10.  There are good reasons why the military is not subject to direct oversight in essentially tactical decision-making in its traditional military activities once a decision has been made to commit to the use of force.  These decisions have long been understood to be within the discretion and responsibility of commanders who have the expertise to carry them out.  Oversight through the Armed Services committees is robust, including its closed sessions, but is not considered the same as that which Title 50 requires for covert activities because the kinds of activities traditionally conceived – conventional conflict versus covert activities – were different.  However, the expansion of the US military into clandestine activities – which might or might not meet the legal definition of “covert” under Title 50 and so trigger those oversight functions – has raised new questions as to whether the Armed Services committees’ oversight, traditionally conceived for conventional conflicts, keeps Congress sufficiently informed and permits sufficiently timely oversight in the case of activities carried out by JSOC.

[Added: Chesney has amended his original post to emphasize that in practice JSOC operations receive an op-by-op review by the Armed Services committees; he points to this Craig Whitlock article in the Washington Post.  I am quite prepared to believe this, but agree with Bobby that the formalization of this process in law remains just as important as ever. The problem of "institutional settlement" in US counterterrorism policy, discussed at the bottom of this post, is in large part taking jury-rigged and ad hoc processes, in order to both make them permanent features of the national security toolkit and to regularize and institutionalize them.]

Whether there is sufficient oversight depends partly on whether you think that oversight by the Intelligence committees is sufficient, or whether, in the case of US military operations through JSOC, the Armed Services committees ought to be more involved irrespective of what happens in the Intelligence committees.  My strong impression is that members of the Armed Services committees, on both sides of the aisle, believe that there needs to be a stronger role for those committees; this bill is partly a response to that concern.  This is reinforced by a further feature of the existing legislative structure for oversight.  Title 50 defines covert activities, but then exempts from the definition “traditional” military activities as well as activities done in routine support of others’ (e.g., CIA) activities.

This suggests – at least as a structural possibility – that important JSOC operations might be carried out on an internal legal view that they do not constitute “covert” activities because they are “traditional” military activities, and therefore do not trigger Title 50 oversight.  As military activities, oversight would take place through the Armed Services committees, but only in the relatively limited way that now exists.  One result of Rep. Thornberry’s proposed reforms would be essentially to close that structural gap. It does so by requiring oversight through the Armed Services committees for any “Sensitive Military Operation” carried out by the military, without regard to any other obligations under Title 50 covert activities.  Among its specifics, it requires reporting on the process and criteria for targeting decisions – the so-called “kill list” committees and “disposition matrix.”

This seems to me a very good idea.  I need to think through other parts of the proposed legislation to be sure I understand the implications, but as a general proposition, I’ve long believed that “institutional settlement” of the permanent structure of US “counterterrorism-on-offense,” as I’ve sometimes termed it, requires important reforms and updating of the legislative structure of oversight in order to take account of the realities of targeted killing, drone warfare, and other forms of highly targeted use of force, as well as the expansion of JSOC and its capabilities.  This proposed legislation is a first, and welcome, step toward getting Congress directly involved in that reform process.  Congress needs to be directly involved in updating the machinery of covert and clandestine operations – more precisely, in delineating the range of activities that involve discrete, intelligence-driven uses of force that carry hostilities directly to terrorism targets – and the oversight processes.  The administration ought to work with Congress to do that.  It is an area that – unlike many others, such as Guantanamo, what happened and why at Benghazi, etc. – ought to permit for a lot of bipartisan agreement.  Here is Chesney’s bottom line:

What’s not to like?  I have long had concerns with respect to whether there was adequate operation-by-operation transparency vis-à-vis Congress when it came to JSOC direct action outside of Afghanistan.  This legislation speaks directly and clearly to that concern, while also moving the ball forward at least a bit in terms of forcing the executive branch to explain to the armed services committees the legal and policy elements that govern its decisions regarding the designation of individuals or groups as objects of direct action.  The Obama administration should get behind this, not resist it—especially if it is inclined to shift some or all of the CIA’s kinetic portfolio over to JSOC.

This is not, as regular readers will know, an unstated attempt on my part to kill off these programs by process reforms.  It is instead endorsement of attempts to “discipline” them – as Harold Koh put it in his Oxford Union speech a few days ago – and put them on a footing of institutional permanence, so that these tools join the permanent repertoire of national security available to presidents into the future.  That requires a process of oversight by the political branches more attuned to the realities of how covert and clandestine uses of force are likely to unfold than existing statutes do today.  As it happens, Benjamin Wittes and I are co-authoring a new book that addresses the terms of institutional settlement in counterterrorism, based in an analysis and reconstruction of speeches by senior Obama officials and agency general counsels on national security (we’re putting it out chapter by chapter online, and Hoover Press will put out a hardback once completed).

My written testimony on the use of drones for targeted killing in the War on Terror submitted for yesterday’s hearing the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights is now available here. You can view the video of the oral testimony (both mine and the other witnesses) here. I will post links to the other witnesses’ written testimony when and if they become available.

UPDATE: The written testimony of all the witnesses is now available here (see list of their names off to the right).

UPDATE #2: A written statement submitted for the hearing by Senator Rand Paul is available here.

A video of my and other witnesses’ oral testimony on the use of drones for targeted killing in the War Terror, before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights is now available here (just click on “webcast”). It was interesting for me to see that there was a broad consensus among the academic and ex-military witnesses on two key points: that the use of drones for targeted killing of terrorists is not inherently illegal or immoral, and that we need stronger safeguards to ensure that we are limiting drone strikes to legitimate military targets. It seems to me that many of the senators who asked questions – both Democrats and Republicans – were also sympathetic on these points. Whether this will lead to appropriate reforms remains to be seen.

I will try to post my written testimony by tomorrow.

UPDATE: You can also watch the hearing at the C-SPAN site here, though there are a few technical problems in that video that I noticed.

UPDATE #2: I do want to clarify one unfortunately ambiguous aspect of an answer I gave to a question by Sen. Michael Lee around 2:07:00 of the video at the Subcommittee website. I mentioned there that the Israeli government government has a judicial review mechanism for considering the legality of targeted killing decisions. I should have made clear that the Israeli system, as outlined in the Israeli High Court of Justice’s 2006 decision on the legality of targeted killing, establishes after-the-fact judicial review rather than judicial review in advance, of the kind contemplated in proposals to create a FISA-like court to review targeting decisions aimed at US citizens in advance. Both Sen. Lee’s question and the part of my answer that mentions Israel were ambiguous on the issue of the timing of judicial review. So I wanted to clarify that point here. As I noted later in my testimony, we cannot and should not simply copy all aspects of Israeli policy in this area, since their strategic situation and political system differ from ours. But we nonetheless should try to learn from their experience.

This Wednesday, April 10, at 12 PM, I will be taking part in an event on the legal and policy issues surrounding the use of drones in the War on Terror, at George Mason University School of Law. I will be on a panel with my GMU colleagues Jeremy Rabkin and Nathan Sales. The event is sponsored by the GMU Muslim Students Association and by Students for Liberty. It will be held in Room 120.

If you’re interested in drones, you might also enjoy Trevor Paglen’s photographs of them. Paglen is a fascinating artist who has a particular interest in photographing secret things — drones, military installations, spy satellites. Here is Paglen’s webpage, and here is a recent New Yorker profile of him. If the Conspiracy had an official artist, I would nominate Paglen.

The American Civil Liberties Union (ACLU) sued the Central Intelligence Agency (CIA) under the Freedom of Information Act (FOIA) seeking information about drone strikes.  The CIA filed a so-called “Glomar response,” refusing to confirm or deny the existence of material responsive to the ACLU’s request.  The ACLU then sued, and the district court granted summary judgment to the CIA.   Today, however, in ACLU v. CIA, the U.S. Court of Appeals for the D.C. circuit reversed, rejecting the CIA’s justification of its Glomar response. As the court explained:

The CIA has proffered no reason to believe that disclosing whether it has any documents at all about drone strikes will reveal whether the Agency itself — as opposed to some other U.S. entity such as the Defense Department — operates drones. There is no doubt, however, that such disclosure would reveal whether the Agency “at least has an intelligence interest in drone strikes.” . . . The question before us, then, is whether it is “logical or plausible,” . . . for the CIA to contend that it would reveal something not already officially acknowledged to say that the Agency “at least has an intelligence interest” in such strikes. Given the extent of the official statements on the subject, we conclude that the answer to that question is no. . . .

Given . . . official acknowledgments that the United States has participated in drone strikes, it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain to say that the Agency “at least has an intelligence interest” in such strikes. . . . The defendant is, after all, the Central Intelligence Agency. And it strains credulity to suggest that an agency charged with gathering intelligence affecting the national security does not have an “intelligence interest” in drone strikes, even if that agency does not operate the drones itself.

The case now goes back to the district court, which will consider whether the CIA may avail itself of any FOIA exemptions to refuse the ACLU’s information requests.

I just caught the last few minutes of The Bourne Ultimatum. At the end (spoiler alert), Bourne successfully exposes everything, and we catch a glimpse of MSNBC, reporting on a secret CIA assassination program “which in several cases may have even targeted U.S. citizens.”

In the movie, it appears that MSNBC believes this to be some sort of scandal.

The Obama administration memo on targeted killing has drawn an enormous amount of commentary, much of it hostile. To my mind, a lot of the criticism is overblown because it doesn’t give enough consideration to the fact that the memo’s rationale for targeted killing is strictly limited to American citizens who are “senior operational leader[s] of al-Qa’ida or an associated force.” On the other hand, there is a very troubling issue that the memo does not address: Who decides whether a potential target qualifies as a senior operational terrorist leader, and how much evidence does he need to have?

I. Al Qaeda Leaders Are Legitimate Targets.

Many critics, such as Gerard Magliocca and Conor Friedersdorf focus on the weaknesses of the memo’s three additional requirements for a targeted killing of a US citizen: that “(1) an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the United States, (2) capture is infeasible and the United States continues to monitor whether capture becomes feasible, and (3) the operation would be conducted in a manner consistent with applicable law of war principles.” Gerard, for example, argues that “[t]he White Paper says that a citizen is eligible for death-by-drone when ‘an informed, high-level, official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.’ In my opinion, this threshold is too low.” But the “imminent threat” test applies only to people located outside the United States who are “senior operational leaders of al-Qa’ida or an associated force,” not to just anyone who “an informed...official” believes to be a threat. In other words, the requirements that the target pose an “imminent threat” and cannot be captured are in addition to the requirement that he be a senior leader of Al Qaeda or one of its “associated forces.”

Once this key point is recognized, many of the objections to the memo are weakened. In wartime, the individualized targeting of an enemy commander is surely both legal and moral. And the US is presently at war with Al Qaeda and its allies. If it is permissible to individually target a uniformed enemy officer, such as Japanese Admiral Yamamoto in World War II, it is surely permissible to do the same to the leader of a terrorist organization. Indeed, it would be perverse if terrorist leaders enjoyed greater protection against targeting than uniformed military officers. Unlike the latter, terrorists don’t even pretend to obey the laws of war and they deliberately endanger civilians by choosing not to wear distinctive uniforms.

This analysis does not change if the targeting enemy leader happens to be a US citizen. Surely the targeting of Admiral Yamamoto would not have become illegal or immoral if he had acquired US citizenship while living in the United States during the 1920s. Similarly, it was surely permissible to target Yamamoto even if the US did not have any proof that he was planning “imminent” military operations against US forces. The fact that he was a top enemy commander in an ongoing war is enough. Similarly, it would make no difference if Yamamoto or other Axis leaders were operating from the territory of an officially neutral nation that supported them or was unable to stop them. They would still be legitimate targets there.

Finally, it is important to remember that banning or severely limiting targeted killing won’t necessarily reduce civilian casualties and could easily increase them. Conventional military operations aimed at larger groups of enemy combatants are more likely to result in the death of innocent bystanders than targeted killings which apply smaller and more precise levels of force. If targeted killing is banned or severely constrained, officials will rely more heavily on conventional operations, thereby likely increasing civilian casualties.

II. Who Determines Whether You are a Senior Al Qaeda Leader and How Much Evidence do they Need to do it?

So far so good for the Obama administration. Unfortunately, however, identifying Al Qaeda leaders is a far more difficult task than identifying enemy officers in a conventional war. Precisely because terrorists don’t wear uniforms and often don’t have a clear command structure, it’s easy to make mistakes. And where US citizens are involved, there is the danger that the government will target someone merely because that person is a political enemy of the current administration. Even if officials are acting entirely in good faith, there’s still a serious risk that innocent people will be targeted in error. The Obama memo doesn’t even consider the question of how we decide whether a potential target really is a terrorist leader or not. But that is in fact the key issue.

The problem is not an easy one. On the one hand, war cannot wait on elaborate judicial processes. And we cannot give a potential target an opportunity to contest his designation in court without tipping him off. On the other hand, it is dangerous to give the president and his subordinates unconstrained power to designate American citizens as “terrorist leaders” and then target them at will.

One possible solution is requiring officials to get advance authorization for targeting a US citizen from a specialized court, similar to the FISA Court, which authorizes intelligence surveillance warrants for spying on suspected foreign agents in the United States. The specialized court could act faster than ordinary courts do, and without warning the potential target, yet still serve as a check on unilateral executive power. In the present conflict, there are actually very few high-ranking terrorist leaders who are US citizens. Given that reality, we might even be able to have more extensive judicial process than exists under FISA. Alternatively, one can envision some kind of more extensive due process within the executive branch itself. But any internal executive process has the flaw that it could always be overriden by the president, and possibly other high-ranking executive branch officials.

Whether the decision is made with or without judicial oversight, there is an important question of burden of proof. How much evidence is enough to justify classifying you as a senior Al Qaeda leader? The administration memo doesn’t address that question either.

I honestly don’t know what the optimal institutional structure here would be. But we should aim for one that provides a check on executive discretion without miring the process in prolonged litigation that makes it impossible to conduct operations in “real time.”

Like Gerard Magliocca and Jack Goldsmith, I hope Congress enacts a framework statute regulating the use of targeted killing, including appropriate procedural safeguards. But I am skeptical that Congress will actually do that anytime soon. Most of the general public is either ignoring the issue or actually happy with the status quo. And there are few if any powerful interest groups lobbying for change either. Congress is unlikely to wade into this swamp just to satisfy law professors and civil libertarians. Unfortunately, it may take a highly visible disaster – such as the deliberate targeting of an obviously innocent person – to get Congress to act.

Co-Conspirator Jonathan mentioned posts at Lawfare blog discussing the Drone White Paper that has been much in the news along with notice that the Awlaki OLC memo will be shared with Congress, and all  with the Brennan hearings for CIA director.  I have added a post at Lawfare that Volokh readers might find interesting; it points out that one of the much commented issues of the White Paper, the question of “imminence” as a condition of attacking in self-defense, actually has a long history in US law and policy.  At least since the early 1980s, the US has embraced a standard of “active self-defense,” as I note at Lawfare.  Here, for example, is a statement of it in 1989 by then-Department of State Legal Adviser Abraham Sofaer, in an interagency cleared speech, and which references statements by then-Secretary of State George Shultz:

Some States, such as Lebanon, are simply unable to exercise authority over terrorists, even if they were inclined to do so. The United States must be free to utilize force with sufficient flexibility to defend itself and its allies effectively against threats resulting from such breaches of international responsibility. As Secretary of State George P. Shultz predicted in 1984: “We can expect more terrorism directed at our strategic interests around the world in the years ahead. To combat it, we must be willing to use military force.” ….

In 1984 Secretary Shultz described this policy as an “active defense.” “From a practical standpoint,” he said, “a purely passive defense does not provide enough of a deterrent to terrorism and the states that sponsor it.” Later that year he described why an active defense was needed to deter:

“We must reach a consensus in this country that our responses should go beyond passive defense to consider means of active prevention, preemption, and retaliation. Our goal must be to prevent and deter future terrorist acts, and experience has taught us over the years that one of the best deterrents to terrorism is the certainty that swift and sure measures will be taken against those who engage in it. We should take steps toward carrying out such measures. There should be no moral confusion on this issue. Our aim is not to seek revenge but to put an end to violent attacks against innocent people, to make the world a safer place to live for all of us. Clearly the democracies have a moral right, indeed a duty, to defend themselves.”

The federal government does not need to disclose the legal opinions and other documents justifying the use of drone to target suspected terrorists overseas, a federal judge ruled this week. As Josh Gerstein reports, the ACLU and New York Times had sought their release under the Freedom of Information Act (FOIA). While Judge Colleen McMahon noted there were “legitimate reasons” to question the legality of the use of drone strikes for targeted killings overseas, and thought disclosure of the legal rationale relied upon by the administration would further public debate on the use of drones, she concluded the relevant documents were lawfully withheld under FOIA. While I, like many others, would like to see the relevant memos, Judge McMahon’s opinion is likely correct.

Rafaella Wakeman and Robert Chesney comment at the Lawfare blog.

National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers is a new book published by the ABA’s Standing Committee on Law and National Security and Northwestern’s Medill School of Journalism. Despite the title, the book should be of interest to a general audience, as it offers a concise, broad plain-language overview of the many timely issues at the intersection of domestic and international law. I wrote the chapter on piracy. Congratulations to the editors, Paul Rosenzweig, Timothy J. McNulty, and Ellen Shearer.

Here is the overview:

Written by seasoned experts, each chapter contains a summary of legal and policy issues of significance and is accompanied by an annotated bibliography for further reading. The book is divided into four parts:
Part I provides an overview of the basic issues of constitutional and international law including discussion of the scope of the president’s authority, the meaning and effect of the First Amendment, and the role of international law in American courts.
Part II turns the focus to the military and explores questions about military organization and operations.
Part III looks at the world of domestic law enforcement and counterterrorism.
Part IV covers homeland security issues.
An added bonus: a list of experts to contact for additional background information is included in chapter.

Some early journo reactions:

Every reporter on the national security beat should keep this book within reach.”

– Jane Mayer, Staff Writer, The New Yorker Magazine

Finally, we now have a clear-eyed primer on national security law that can serve as an essential reference for journalists as they try to cut through the spin and get to the truth.”

– James Risen, author, State of War: The Secret History of the CIA and the Bush Administration

The Prologue to my book No More Wacos: What’s Wrong with Federal Law Enforcement and How to Fix it, includes a section on the Ruby Ridge case. Much more on Waco and Ruby Ridge is available on the Waco page on my website.

The debate over the morality and legality of targeted killing has been rekindled by the death of Osama Bin Laden and shows no sign of stopping. But most of the debaters have overlooked a key point. If it is moral and legal to individually target uniformed enemy military officers, surely the same goes for leaders of terrorist organizations. It cannot be the case that law and morality give the latter greater protection than the former. I made this point in a recent statement that got quoted by Al Jazeera (not a media outlet that I would ever have expected to be cited by, but they asked me to comment, so I did):

Ilya Somin, a professor at George Mason University’s School of Law, echoed Greenberg’s argument that “targeting individual enemy combatants in war is perfectly legal and moral”.

Somin points at US targeting of Admiral Isoroku Yamamoto, the commander of the Japanese fleet during World War II, and the British and the Czechs’ killing of German SS General Reinhard Heydrick [sic] in 1942, as precedents.

“Surely international law does not give terrorist leaders greater protection than that enjoyed by uniformed soldiers such as Admiral Yamamoto.”

“And if it is legal to individually target the commander of a uniformed military force, it is surely equally legal to target the leader of a terrorist organisation, including Osama bin Laden,” he told Al Jazeera.

To my knowledge, hardly any serious commentators claim that the targeted killing of enemy military commanders such as Yamamoto and Heydrich is either illegal or immoral. With the possible exception of Justice John Paul Stevens (who questioned the morality of the Yamamoto attack, but not its legality), everyone understands that individual military officers are legitimate targets. A capable high-ranking officer is a military asset in much the same way as an individual anonymous mass of low-ranking soldiers. In Heydrich’s case, there is the complicating factor that, as one of the architects of the Holocaust, he was an even greater criminal than Bin Laden. However, this was not the reason why he was targeted for assassination by the Allies (who in early 1942 did not yet know of his crucial role in the Holocaust). And Admiral Yamamoto was not guilty of committing any atrocities; the US targeted him simply because he was a more effective commander than his likely replacements.

What is true of uniformed officers surely also applies to leaders of terrorist organizations such as al Qaeda. The latter, too, represent enemy military assets that we can legitimately target in wartime. If anything, targeting terrorist leaders is more defensible than targeting individual uniformed officers. Unlike uniformed soldiers, terrorist leaders openly target civilians and don’t even pretend to obey the laws of war.

The only significant countervailing consideration is that terrorists are sometimes more difficult to distinguish from innocent civilians than military officers are. This creates the danger that unscrupulous governments will use bogus accusations of terrorism as a justification for killing people they dislike. This is a genuine problem. But it doesn’t justify a categorical ban on the targeted killing of terrorists. Instead, such abuses can be constrained in two other ways.

First, targeted killings, like other military tactics, can only be used against terrorists in conflicts that are large-scale enough to qualify as a war. One can legitimately debate the exact point at which a terrorist threat rises to that status. But surely al Qaeda, given the enormous scale of its atrocities, qualifies. The boundary between war and small-scale conflict is also disputable in the case of traditional armed confrontations between states, as the recent debate over the US military intervention in Libya demonstrates. As with many legal concepts, the boundary between “war” and other types of conflict is difficult to define with absolute precision. But most real-world cases are clear enough to readily be classified on one side of the line or the other.

Even when we do have an antiterrorist conflict that qualifies as a war, the deliberate targeting of innocent people under a pretextual accusation of terrorism can still be prosecuted as a war crime. In the same way, officials can be prosecuted for deliberately bombing a civilian target under a bogus claim that it is actually an enemy military unit. No one argues that the use of air strikes or artillery against military targets is categorically illegal or unjust merely because governments sometimes use bogus military rationales to justify attacks on civilians. The same reasoning applies to the abuse of targeted killings.

Sometimes, of course, a targeted killing may end up killing innocent people even though the government that ordered the operation genuinely believed that they were attacking a terrorist. But the same risk is present in conventional military operations against uniformed soldiers. Indeed, far more innocent civilians have been accidentally killed by air and artillery attacks aimed at military units than by targeted killing operations gone awry.

In sum, if we assume that the targeted killing of enemy military personnel is a legal and moral tactic in wartime, the same reasoning also justifies the targeted killing of terrorists.

UPDATE: I previously defended the morality of targeted killing of terrorists here.

UPDATE #2: Kevin Jon Heller responds to this post here, but offers no substantive critique of my argument. He seems to assume that it is obviously wrong to believe that there is no “difference between targeting a military officer in an international armed conflict and targeting a terrorist in something that Ilya Somin is really convinced is a war,” but doesn’t explain why. He also accuses me of claiming that “everything the US does is fine,” which of course I did not say. Heller also conveniently ignores the reason I gave for why the conflict with al Qaeda qualifies as a war: the massive scale of Al Qaeda’s terrorist activities.

UPDATE #3: Heller responds again in an update to his post. He claims that he didn’t make a substantive argument because I didn’t either. But of course my post notes multiple relevant similarities between terrorists and enemy uniformed military officers. Heller also points to this earlier post, where he claims that he addressed “precisely the IHL issues that [Somin] ridicules.” Setting aside the point that I didn’t “ridicule” anything, Heller’s earlier post actually reaches a conclusion very similar to mine:

I have no doubt that killing UBL was legal. To begin with, I think the applicable legal regime is international humanitarian law (IHL), not international human-rights law (IHRL) — a conclusion that can be reached in a number of different ways. The best rationale is that UBL was a member of an organized armed group (”original” al Qaeda) taking part in the armed conflict in Afghanistan. In the alternative, I think we can say (although it is a closer call) that the hostilities in Pakistan rise to the level of armed conflict and that UBL was a member of an organized armed group (original al Qaeda or al Qaeda Pakistan, if the two are distinct entities) taking part in that conflict. Either way, UBL was legitimately targetable with lethal force at any time, subject only to the principles of distinction and proportionality.

Indeed, Heller’s theory of when targeted killings can be used against terrorists is actually broader than mine. He seems to believe that we can target them any time they are members of “an organized armed group” engaged in an “armed conflict” whereas I argued only that we can do so when they are engaged in an armed conflict that qualifies as a war.

UPDATE #4: In this CNN video, former Clinton administration solicitor general Walter Dellinger makes the argument that killing Bin Laden (and presumably other similarly situated terrorists) was legal because he was an “enemy combatant.” Notice that Dellinger’s argument, like mine, does not distinguish between enemy combatants who are uniformed members of a military and those who are not.

UPDATE #5: Kevin Jon Heller digs his hole deeper in a further update to his post:

Somin replies again, and only makes things worse for himself. He claims that “Heller’s theory of when targeted killings can be used against terrorists is actually broader than mine. He seems to believe that we can target them any time they are members of ‘an organized armed group’ engaged in an ‘armed conflict’ whereas I argued only that we can do so when they are engaged in an armed conflict that qualifies as a war.” Somin obviously doesn’t understand my post, because I was quite clearly discussing targeting in non-international armed conflict, not in “armed conflict” generally, which is a meaningless concept in terms of IHL.

That said, Somin is absolutely right that his view of targeted killing is narrower than mine — just not in the way he imagines. It is, of course, legally impossible for a state to be in a “war” — i.e., in an international armed conflict — with a non-state actor like al Qaeda, as the Supreme Court recognized in Hamdan.

Nothing in Heller’s argument turned on a distinction between “international” and “non-international” armed conflict, unless he is prepared to claim that targeted killing is illegal in the former. Indeed, the earlier post Heller references does not even mention that distinction. As for Hamdan, the Supreme Court majority opinion in that decision repeatedly refers to the “war with al Qaeda” and also describes the Civil War as a “war,” even though the latter was not an international armed conflict, since neither the US nor any other nation recognized the Confederacy as an independent state. Clearly, the Court does not share Heller’s view that it is “impossible” for a state to be in a war with a non-state actor. The Court did rule that the war with al Qaeda was not an “international armed conflict” because it is not against a state. But, in its view, at least some non-international armed conflicts still qualify as wars.

Presswires are reporting that Judge John Bates has dismissed the case which the ACLU and the Center for Constitutional Rights sought to bring on behalf of Anwar Al-Aulaqi’s father, contesting the ability of the President to target an American citizen hiding abroad in Yemen who the government says is a targetable participant in a terrorist group covered by the AUMF.  (Thanks commenter Dom, the opinion is here; thanks also Instapundit, & corrected grammar above.)  The news story points to standing problems for the father.  Says the AP:

U.S. District Judge John Bates said in a written opinion Tuesday that al-Awlaki’s father does not have the authority to sue on his son’s behalf. But he says the case raises serious issues about whether the United States can plan to kill one of its own citizens.

Quick update:  On a fast read of the opinion – well, anyone interested in these questions needs to read it post haste.  Far from merely being a narrow discussion of standing, it goes on to discuss the political question doctrine in great detail, and concluding on this point:

...this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case, see El- Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211), and the doctrine does not contain any “carve-out” for cases involving the constitutional rights of U.S. citizens. While it may be true that “the political question doctrine wanes” where the constitutional rights of U.S. citizens are at stake, Abu Ali, 350 F. Supp. at 64, it does not become inapposite. [p. 77 opinion, emphasis added]

But opinion contains much, much more.  A very interesting discussion of why the Alien Tort Statute does not offer an avenue; state secrets doctrine; there is a lot of stuff here.  More when I’ve read it more closely.  It is an impressive work in judicial opinion-crafting by Judge Bates, regardless of what one thinks of the outcome.

Update:  Larkin Reynolds at Lawfare offers a bunch of snippets from the opinion.  Also at Lawfare, Bobby Chesney offers an objective outline, sans commentary, of the quite long opinion, and Jack Goldsmith and Ben Wittes weigh in with commentary.

I was puzzled, frankly, at the coverage in both the Post and the Times this morning. Charlie Savage, for example, seemed to think that the language I quoted above was what Judge Bates rejected, if I understood his writeup correctly. Rather, this is what Judge Bates found, albeit in a collateral and perhaps purely dicta way, given that he did not need to reach this once he had dismissed on standing grounds. The best one might say for plaintiffs here is that Judge Bates confined himself to narrow facts, even while concluding that the executive’s decision was unreviewable.

Basically, I agree with Ben’s five points at Lawfare, and agree with him that the ruling is likely bullet-proof on appeal. The one point I’d add to Ben’s discussion is that it seems to me that Judge Bates’ motivation was to provide at least the beginning of clear institutional settlement on a crucial aspect of the executive’s national security prerogatives, even if it was arguably “mere” dicta.

I’d also note in passing that this holding illustrates in a backhanded way one of the aspects of the Alien Tort Statute that I find troubling, at least as applied to conduct outside the territorial United States. Viz., it confers special rights upon aliens that are not available to US citizens – including, in this case, a citizen named Al-Aulaqi. His alien father can at least begin to bring a claim that the citizen son cannot, because he is, well, not an alien. This makes sense to me in one context only, viz., when the conduct occurs in the territorial United States, and the alien present in the US might suffer at the hands of state courts or US citizens, who themselves have ample avenues open to them; it levels the playing field. Abroad, arguably, it gives aliens something that US citizens don’t have.