Thursday, May 21, 2009

Are "targeted killings" in Pakistan a crime?

Today President Obama spoke of what he thinks the U.S. needs to do to meet a threat he insists is a "war" and I strongly believe is actually a law enforcement challenge. He said that since 9/11 we have

... failed to rely on our legal traditions and time-tested institutions ... failed to use our values as a compass.

He speaks of the rule of law. He promises to fix what he diagnoses as broken.

But what of those U.S. activities that are deeply questionable under international law that have become conventional actions at an accelerating rate since this president took office? Since January 20, 2009, there have been at least sixteen casualty-causing strikes by unmanned drone aircraft in Pakistan. According to one list, these shots from the sky have killed 199 people in that time. Very little is known about who they were. They may have been "militants" bent on killing Americans (if they had ever seen one). Or somebody in the spook world may have made a mistake and targeted some guys in a pickup or perhaps the largest house in a village.

David Kilcullen, a past counter-insurgency adviser to General Petraeus, and Andrew Exum, formerly an Army officer in Afghanistan and Iraq in 2002-2004, tried to arrive at a balanced guess about who gets killed in the New York Times.:

Press reports suggest that over the last three years drone strikes have killed about 14 terrorist leaders. But, according to Pakistani sources, they have also killed some 700 civilians. This is 50 civilians for every militant killed, a hit rate of 2 percent -- hardly "precision." American officials vehemently dispute these figures, and it is likely that more militants and fewer civilians have been killed than is reported by the press in Pakistan.

Nonetheless, they conclude we are making more "militants" than we deter, substituting a technological tactic for a strategy against our enemies.

But what law allows the U.S. to go shooting people in somebody else's country with which we are not at war?

(Yes, we are probably in league with the Pakistani military as Senator Feinstein leaked the other day, but officially they protest.)

It turns out that the legality of our attacks is very much contested.

The International Committee of the Red Cross refers the issue to a book on "targeted killings" by Nils Melzer.

The book argues that any targeted killing not directed against a legitimate military target remains subject to the law enforcement paradigm, which imposes extensive restraints on the practice. Even under the paradigm of hostilities, no person can be lawfully liquidated without further considerations. As a form of individualized or surgical warfare, the method of targeted killing requires a "microscopic" interpretation of the law regulating the conduct of hostilities which leads to nuanced results reflecting the fundamental principles underlying international humanitarian law.

That is, any country employing this tactic better have damn good evidence that the particular individual targeted is guilty of a capital offense -- and avoid "collateral damage."

Back when the U.S. was employing "targeted killings" far less frequently, there was much more and more nuanced discussion of the practice. In 1981, a U.S. executive order (E.O. 12333) barred our spooks from assassinating people. Eben Kaplan of the Council on Foreign Relations says President Clinton eased this order. President Bush the Younger set it aside altogether after 9/11, notably with a missile strike in 2002 in Yemen that killed a man thought to have master-mindeded the attack on the USS Cole -- and also four other people. Condi Rice fiercely defended this:

"I can assure you that no constitutional questions are raised here. There are authorities that the president can give to officials [and] he's well within the balance of accepted practice and the letter of his constitutional authority."

In 2006, already too overextended to get directly involved, the U.S. took up blowing away suspected al-Qaeda adherents in Somalia. Those killings inspired a dialogue between lawyers in Slate's legal blog, Convictions (here, here, and here). In the last contribution cited, the author, Marty Lederman, observes:

... apart from questions of detainee treatment and the like, the American public, press, and legislature appear to be completely oblivious to the idea that questions of war and military force raise any legal issues at all. It's not as if the public is indifferent to questions of whether and when military force is appropriate. To the contrary: It's simply that it seems never to occur to anyone that law's got anything to do with it.

That same Marty Lederman was appointed by President Obama to the Office of Legal Counsel. Does he still think law might have something to do with the drone program? Do we think so?

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