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
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.:
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.
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:
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:
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?