The Obama administration is grossly misreading international law when it comes to targeting terrorists.
Earlier this week, the New York Times published a stunning front-page article by Jo Becker and Scott Shane that portrays U.S. President Barack Obama as so genuinely concerned about the ethics of U.S. warfare that he’s taken to personally reviewing the government’s "kill list" to make the ultimate moral calculation of who gets to live or die, based on secret U.S. intelligence. The Times described the president as poring over terrorist suspects’ biographies — their "baseball cards," as one unnamed official put it — and making the final determination of whether and when a suspected terrorist leader, and sometimes his family, will be killed.
But if the president’s personal involvement is laudable, the killings themselves are no less controversial. And, if the Times‘s reporting is accurate, the program itself is illegal.
Becker and Shane confirm what we could only guess from remarks made by Obama’s advisors in the past: that the United States is targeting to kill individuals overseas who do not pose an imminent threat to the United States and who are not directly participating in hostilities against Americans. That’s a violation of international law.
Let’s review the tape. On April 30, counterterrorism advisor John Brennan said in a speech at the Woodrow Wilson Center in Washington, "[I]n this armed conflict, individuals who are part of al Qaeda or its associated forces are legitimate military targets. We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II."
Then, in their story Tuesday, Becker and Shane quoted unnamed administration officials suggesting that all military-age males in a strike zone are presumed to be combatants and therefore targetable.
Both that presumption and Brennan’s statement are a gross misreading of the relevant law.
First, al Qaeda and "associated forces" are not like German and Japanese commanders during WWII. German and Japanese commanders in that conflict were targetable because they were members of the enemy’s armed forces. It is not clear, however, that "individuals who are part of al Qaeda or its associated forces" are members of "enemy armed forces."
Second, it’s not clear that the United States is in an armed conflict with al Qaeda’s "associated forces" outside Afghanistan and Pakistan. Under international law, an armed conflict can only exist if such "associated forces" have a level of organization that would allow them to assume their obligations under international humanitarian law and if there are ongoing hostilities against the United States of sufficient intensity and duration. That’s not necessarily the case in Yemen, Somalia, or any of the other myriad places where the United States is reportedly fighting al Qaeda militants.
Third, al Qaeda today is not the al Qaeda of 9/11, and the 2001 Authorization for Use of Military Force (AUMF) that the Obama administration cites as one authority for its targeted killing program specifically limited military force to those who planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001. "Associated forces" such as Al Qaeda in the Arabian Peninsula (AQAP) in Yemen and al-Shabab in Somalia did not even exist in 2001. The 2001 AUMF therefore can’t possibly authorize military force against them.
Finally, being a member of al Qaeda or "associated forces" might not mean directly participating in hostilities against the United States. It might mean instead providing assistance to fighters, such as cooking, cleaning, or driving — none of which would render such a "member" targetable. The law of armed conflict allows the targeting only of those directly participating in hostilities or otherwise performing a continuous combat function.
Brennan’s statement of the law, however, lumps all these people into one droneable category — a clear misapplication of international humanitarian law that offends the most fundamental principle of that law: the principle of distinction between combatants and civilians.
The notion that any military-age male who happens to be seen in a combat zone is necessarily targetable — the effective government policy, as reported by Becker and Shane — similarly confuses that key distinction. It not only condones the targeting of potentially innocent civilians; it also allows the administration to undercount the civilian casualties that result from its strikes.
In his speech, Brennan acknowledged that the United States in its use of drone technology is "establishing precedents that other nations may follow, and not all of them will be nations that share our interests or the premium we put on protecting human life, including innocent civilians."
That precedent is a dangerous one. The United States is claiming both moral and legal authority that it does not have. And in practice it is applying that authority both broadly and recklessly. What would happen if, say, China decided to launch drone strikes against Tibetan dissidents across the border in India? Or Iran decided to strike members of Mujahideen-e-Khalq (MEK) in Nevada? (MEK members reportedly trained there secretly in 2006.)
Human Rights First has asked President Obama to clarify two points of international law: First, that his administration does not permit the targeting of all members of any terrorist group with which it claims to be at war; and, second, that it does not permit the targeting of individuals merely because they are seen to be associating with members of a terrorist group.
The government should also provide further information on the criteria for lethal targeting decisions, the process by which targeting decisions are made, and the mechanisms in place to provide accountability and remedy for violations of the law. Such information should include a copy, with as few redactions as possible, of the Office of Legal Counsel’s 2010 memorandum on the lethal targeting of Anwar al-Awlaki — an account of which has appeared in the New York Times.
Without such public accountability for its lethal drone program, we can have no confidence that the United States is complying either with international or domestic law, or even pursuing a sensible policy.
Despite all the speeches, the administration’s response to allegations of errors and evidence that significant numbers of innocent civilians are being maimed and killed by U.S.-sponsored targeted killing remains: "Trust us." That is not an acceptable response in a democracy.