Chinese drones over Times Square

Yesterday, a U.S. district court dismissed a lawsuit brought by rights groups challenging the United States’ targeted killing program. In the wake of that decision, several quite distinct voices are urging the administration to provide greater clarity about its right to target individuals abroad, including U.S. citizens. Benjamin Wittes put it this way:

I remain convinced that the government would do itself an enormous service if it could say more than it has about the circumstances in which it will and will not target individuals abroad-U.S. citizens, in particular-and about what it regards as the legal limits on its authority to do so. The Obama administration has made significant progress on this front, but given the strategic importance it has placed on the drone program, it needs to say more. In the long run, I don’t believe this litigation is going to set the rules of targeting….If I’m right about that, the dialog the executive branch has with itself on this subject, with Congress, and with the public at large is ultimately going to prove far more consequential than its dialog with the courts. Candor has intrinsic value here, and it can create legitimacy.

For its part, Human Rights Watch sent a letter to the president yesterday, arguing in particular that the United States needs to explain how the program is consistent with international law.

US history shows that once such a program is initiated, even if in response to a specific contingency like the threat posed by al Qaeda in Yemen, it generally becomes a permanent feature of the national security landscape. You will not be the last US president to claim the authority to conduct such strikes. And the United States is not the only country in the world with the ability and motivation to kill its enemies beyond its borders. While such operations may be lawful under certain circumstances, absent clear boundaries they risk setting an example that any US president-and the leader of any other country-could cite to evade the most fundamental legal restrictions on the power to kill…[snip]

[T]he notion that the entire world is automatically by extension a battleground in which the laws of war are applicable is contrary to international law. How does the administration define the "global battlefield" and what is the legal basis for that definition? What, if any, limits exist on ordering targeted killings within it? Does it view the battlefield as global in a literal sense, allowing lethal force to be used, in accordance with the laws of war, against a suspected terrorist in an apartment in Paris, a shopping mall in London, or a bus station in Iowa City? Do the rules governing targeted killing vary from one place to another-for example, are different criteria used in Yemen and Pakistan? [snip]

Could China lawfully declare an ethnic Uighur activist living in New York a "terrorist" and, if the US were unwilling to extradite that person, order a lethal strike on US soil? Could Russia lawfully poison to death someone living in London whom they claim is linked to Chechen militants? Clearly, the United States would oppose such actions. But the administration has not laid out a legal rationale for drone strikes or other deliberate uses of lethal force in countries such as Yemen and Pakistan that would distinguish them from targeted killings that reasonable people would consider unlawful. The US should not carry out a lethal strike if it would object to another country conducting such a strike under similar circumstances and a similar rationale.

Framing the issue in terms of what other countries have done and might do is smart; the international rules of war were largely an example of mutual restraint born of mutual fear. In the Washington Post, David Ignatius argued on similar grounds last month that the time has come for new international rules.

The lid on Pandora’s Box is coming open: The Saudis, understandably, now want their own satellite capability, and they will soon request bids from Western companies for such a system. Riyadh also wants drones that can see and attack enemy targets in remote places. Washington has been weighing whether to include versions of its Predator drones in an arms sale to the kingdom. Such weapons would boost Saudi ability to deter Iran, but they could also threaten Israel [snip]

The "laws of war" may sound like an antiquated concept in this age of robo-weapons. But, in truth, a clear international legal regime has never been more needed: It is a fact of modern life that people in conflict zones live in the perpetual cross hairs of deadly weapons. Rules are needed for targets and targeters alike.

I have a very hard time imagining that the administration will go down the path of new international rule-making. For all of the conjuring up of horribles that Ignatius and Human Rights Watch have managed, I don’t believe the United States yet feels threatened by drone warfare or, more generally, targeted killings by other states. And until it does, the complexities and uncertainties of an international negotiation will be overwhelming. In the meantime, however, there will undoubtedly be voices within the administration sympathetic to the idea that the United States should articulate more clearly the limits of its high-flying weaponry.

Update: A reader writes in, "[t]his sort of irregular warfare is only going to continue, so I think eventually it will be important that states clearly define who can and cannot be targeted. The international norm that generally frowns on political assassinations is a good one, that serves pretty much everybody well and should not be cast aside."