Targeted killing: should the administration say more?

Kenneth Anderson has a piece up at the Weekly Standard arguing that the Obama administration needs to talk more about the legality of its targeted killing program, including in international law terms:

The problem is, such public, official articulations are rare. Without question, lawyers at Defense, Justice, the CIA, and other agencies closely scrutinize U.S. practices and operations for legality under both domestic and international law. This is good and proper, particularly as secret opinions can address facts that must remain secret. But it is not enough, because secret opinions, however persuasive, do not convey legitimacy. Public legitimacy does not require that the government reveal secret facts, programs, activities, and other things that ought to remain secret. But there is much that can be shared about the basic interpretations of domestic and international law that inform the necessarily secret work.

It is quite true that wide swaths of critics won’t be satisfied; that’s not the point. The international law community will never be satisfied, and whatever one gives them, if it’s done merely to appease them, they will take as weakness. International law critics will speak with utter confidence and great bluster. “International law” is better understood not so much as a unified field with definitive answers but as a set of more and less “plausible” interpretations, in a world of sovereign states in which there is no final adjudicator to say yes or no. It is fused with diplomacy, politics, and real-world consequences.

The United States should seek to convey that it has a considered, plausible view of the law, whether shared by the critics or not. That view will achieve public legitimacy in no small part because the U.S. government has the confidence to articulate it and defend it as such.

I’ve argued before that one of the most difficult dilemmas in terms of international law is articulating a standard for when it’s acceptable to use force across borders without the host government’s consent. At the moment, the U.S. legal position–"we’re at war with Al Qaeda"– offers no explanation of when such cross-border action is permissible and when the U.S. has an obligation to work through–or at least seek the consent of–the relevant government. The real-world test of course is whether the host government is somehow willing and able to deal with terrorists on its soil. The U.S. conducts nonconsensual raids into Pakistan or Yemen but wouldn’t think of doing so in Turkey, Germany, or Brazil.  Former State Department lawyer Ashley Deeks made a notable attempt recently to translate that common-sense test into the language of international law:

States, absent consent, employ the “unwilling or unable” test to assess whether the territorial state is prepared to suppress the threat.  If the territorial state is either unwilling or unable, it is reasonable for the victim state to consider its own use of force in the territorial state to be necessary and lawful (assuming the force is proportional and timely).  If the territorial state is both willing and able, the victim state’s use of force would be unlawful.  Thus, if the United States located a senior member of al Qaeda in Stockholm, it almost certainly would be unlawful for the United States to use force against that individual without Sweden’s consent, because there is no reason to believe that the Swedish government would be unwilling or unable to take appropriate measures against that al Qaeda member.

Having U.S. government lawyers say what Deeks has said would generate a diplomatic storm. In essence, the United States would have to grade states in terms of ability to control their own territory. And there’s a further problem: weak states may sometimes acquiesce to U.S. cross-border operations on the condition that their acquiescence is kept secret. In those cases, the confidentiality imperative runs smack into Anderson’s plea for greater legal clarity. I would expect the Obama administration to stay in the legal murk.