Despite valid concerns, targeted assassinations are legal and necessary.
The term "targeted killing" has become a political lightning rod lately, with new revelations of the development of a CIA antiterrorism assassination program, but the concept really shouldn’t be so controversial. As a former U.S. Army judge advocate, my instinct is to assume that being as precise as possible when targeting an enemy opponent is generally a good thing. Nonetheless, debate persists over where such operations fall within the spectrum of international law. But in their inquiries into the legality of the strikes, critics may themselves be aiming at the wrong target.
For the United States, the legal basis for targeted killings was provided early in what former President George W. Bush called the "global war on terror." In April 2003, the U.N. Commission on Human Rights asked the United States to explain its justification for the use of a Predator drone to attack and kill a group of suspected al Qaeda operatives in Yemen. Without ever conceding that such a mission even took place, the United States contested the commission’s jurisdiction to inquire into such an attack on the grounds that the killing was an act of war governed not by human rights law, but by the law of armed conflict.
This response was a logical extension of the Bush administration’s invocation of wartime authority to respond to the September 11, 2001, terrorist attacks. When Bush, followed almost immediately by Congress, chose to characterize the struggle against al Qaeda as an "armed conflict," he wasn’t just playing word games. His comments meant the United States would no longer confine itself to peacetime law-enforcement authority to combat the threat of transnational terrorism. Instead, it would employ the full spectrum of national power, including the U.S. armed forces, to destroy this threat.
In terms of law, the main difference between peace and war is the authority of states to use deadly force. In peacetime, deadly force may only be used as a last resort and only in response to an actual threat. All police officers understand this paradigm, and they often assume great risk to exhaust lesser means before resorting to deadly force. War, in contrast, is defined by the exact opposite assumption: Use of deadly force is a measure of first resort and is permitted not only in response to an actual threat, but also a presumed one. Targeted killings of identified al Qaeda operatives are thoroughly consistent with the authority associated with armed conflict.
This is not to suggest that these strikes occur in a legal vacuum. Such a proposition verges on preposterous. It simply means that the law that defines whether such strikes are "lawful" is the law of armed conflict. Under that law, before any such strike is executed, there must be a determination that the object of attack is a "lawful military objective." This is certainly a more complex question when dealing with a nonstate enemy such as al Qaeda than when dealing with a uniformed opponent on a conventional battlefield. But the law of armed conflict is flexible enough to respond to this challenge.
When the United States is armed with sufficient intelligence to indicate that a proposed target is a terrorist operative or someone involved in the command and control of terrorist operatives, the use of a targeted strike is consistent with the authority derived from the principle of military necessity, perhaps the most fundamental rule of war.
Of course, there are many who argue that outside the confines of Afghanistan or Iraq, the United States must operate within a law enforcement framework to deal with such individuals, but the new administration, at least, seems to have come around to the logic of wartime authority. It is noteworthy that President Barack Obama continues to treat this struggle as an armed conflict, albeit without the hyperbolic characterization of a "global war." Democrats in Congress might complain that they weren’t briefed about the CIA program, but they made no move to limit the use of military force against al Qaeda.
The reason seems obvious: They, too, realize that the struggle against al Qaeda is not simply a law enforcement job. The nature of the threat requires a response that includes the authority to kill as a measure of first resort. One need only consider how history might have been altered if the same tactic had been adopted prior to 9/11.
This is not to say that there aren’t legitimate legal concerns raised by the Predator program and the proposed assassination teams. Whether such operations should have been authorized by then Vice President Dick Cheney, and whether to allow CIA personnel to execute such operations, are both interesting questions. It is hard to identify a legal basis for the vice president to order such attacks without implied authority from President Bush. Assuming, however, the president did grant such authority, what about the CIA’s role? Leon Panetta, the new agency director, may have canceled the Bush-era program to train CIA assassins, but the Predator strikes continue. Under what legal authority can the CIA participate in programs like this?
Throughout the "war on terror," there has been the consistent perception that the Bush administration tried to take advantage of the authority of war without accepting the obligations and limitations associated with such authority. This was at the very core of the debate over the treatment of detainees at Guantánamo. Targeted killings by the CIA raise the same concern. If the United States is in an "armed conflict" with al Qaeda, then it would seem only lawful combatants should be authorized to participate in combat operations. It is difficult to reconcile the U.S. treatment of alleged "unlawful combatants" with a practice that permits civilians — albeit members of a government agency — to take such a significant role in the execution of combat missions.
But, perhaps unfortunately, this is not the aspect of this issue that most critics have seized on. Instead, it is the fact that Predator strikes symbolize an expansive conception of war powers. They would be well advised to consider the alternative. Is the fight against terrorism really just a law enforcement matter? Are the objects of these attacks really like any other criminals? Should the United States forego the opportunities to kill them if they present themselves? From my perspective, the answer to all these questions is no. If I’m right, then let’s hope that our killings remain "targeted."