Yesterday I responded to President Obama’s speech defending the use of drone attacks and targeted killing (full transcript of the speech here) by giving some moral objections to the use of killer drones away from a battlefield. (As I indicated in that post, the notion that the whole world is a constant battlefield in the War on Terror, as it is sometimes claimed, is patent nonsense.) In this post I will consider the legality of the use of drone strikes away from a battlefield scenario.
Three caveats first, however. One, I am not a lawyer (although my parents always said I should be), and am very aware that my ideas in this domain are only suggestions to be taken up or discarded by those who have the training. Second, I do presume that actions are legal unless proven otherwise, so the burden of proof is on the claim of illegality. Third, although we would like laws to be good and just, legality and morality are in fact logically independent: something can be illegal and yet morally neutral (driving one mile over a very low speed limit, for example), and something can be legal and yet morally wrong (at least until a law is passed to prohibit, for example, the widespread abuse of workers in nineteenth-century factories).
President Obama explicitly asserted the legality of drone attacks, even drone attacks upon US citizens who are plotting to attack the US (although not upon US soil, interestingly). The main argument for the legality of drone attacks is that they are part of a defensive war between the United States and al-Qa’ida:
We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war – a war waged proportionally, in last resort, and in self-defense.
By contrast, critics of the legality of “targeted killing” liken it to assassination, which is prohibited under Reagan’s Executive Order 12333 (thanks to Jurist for this detail). That is why the Wikipedia article “Assassination” contains a section entitled “Targeted Killing,” although at the time of this writing a little over half of that section consists of a rehearsal of which legal scholars have asserted the distinction between “assassination” and “targeted killing.” (The discussion in the “Legality” section of Wikipedia’s “Targeted Killing” article is a bit fuller.) The article by Jeffrey Addicott on Jurist (cited above) lays out an argument for the distinction between assassination and targeted killing, noting that EO 12333 did not define “assassination” (so we are evidently free to define it circularly as illegal murder, and thus the prohibition in EO 12333 is merely tautological), that the US is at war with “the virtual-State al-Qa’eda,” and that the “law of armed conflict describes lawful targets.” According to Addicott’s interpretation of this “law of armed conflict,” “An enemy combatant – whether part of an organized military or a civilian who undertakes military activities – is a legitimate target at all times and may be lawfully killed, even if by surprise.”
Now, I’m not going to lay out an argument why “targeted killing” is a form of assassination. I think it is, but I suspect the use of those words is sufficiently slippery that such a case will be mired in meaningless assertions regarding rival uses of language. Instead, I have two considerations which lead me to suggest that “targeted killing” and drone attacks away from an active battlefield are probably illegal.
The first consideration is to ask whether the laws of war apply. President Obama’s legal defense of “targeted killing” relies upon the “War on Terror” being a defensive war. He explicitly states, “at war with al Qaeda, the Taliban, and their associated forces,” and this war is just because it is “a war waged proportionally, in last resort, and in self-defense.” I do not in any way deny that al-Qa’ida has attacked US people and property illegally and unjustifiably. I merely question whether one can be “at war with an organization,” as President Obama puts it, in a way that the “laws of armed conflict” apply. It is revealing that in Professor Addicott’s version of this argument, he refers to “the virtual-State al-Qa’eda.” Does the invocation of the laws of war require that al-Qa’ida be considered a state?
Of course, the rhetoric of the “War on Terror” built off earlier American public campaigns designed to rally popular sentiment behind some unpopular measures, such as the “War on Poverty,” the “War on Cancer,” and the “War on Drugs.” But in the first two cases (and in the domestic policies attached to the third) we recognize a metaphor, namely that the opposing threat to be battled is not to be fought militarily according to the laws of warfare. The “War on Drugs” is more ambiguous, because it has been used as a motivation for foreign military intervention, although the rhetoric has fallen on hard times. But it seems to me that, rhetoric aside, the applicability of the rules of war requires there to be a recognizable war, which I would characterize as requiring hostility between two countries/states. The Oxford English Dictionary similarly defines “war” as armed conflict “between nations, states, or rulers, or between parties in the same nation or state,” although Wikipedia includes “non-state actors” as potential combatants.
It is obvious that al-Qa’ida, whatever else it might be, is not a state. It has no legitimate sovereignty, it has no constituent population which it serves, it has no territory it governs or could govern justly. As President Obama’s speech acknowledged, it is an organization. And organizations can be illegal and violent (think “organized crime”), but the response to organizations is not warfare. The declaration of war requires a state upon which war is declared. Without a state which can be held accountable to the Geneva Conventions, the laws of warfare simply do not apply to the “War on Terror.”
The inapplicability of war-time legal reasoning is also apparent from the evident domestic peace in the US. Certainly terrorist attacks shake us, and for those killed and maimed there is no recovery, but compared to the continuing violence in the civil war in Syria, or the sectarian violence in Iraq, terrorist attacks are one-off events. This is not to minimize the horror of them, but to indicate the different timelines of violence between warfare and terrorism.
But challenging the “War on Terror” as a vehicle for legal reasoning does not necessarily demonstrate the illegality of drone strikes. Perhaps “targeted killing” is legal in peace-time, and as I indicated above, all actions are presumed legal unless demonstrated otherwise. It is here that my second consideration comes in, by analogy.
Apart from times of war and active battlefields, civil society depends for its continued operation on certain legal norms which restrict (for example) vigilantism and blood feuds. Among these legal norms are due process, which mandate that when a crime has been committed, a person accused cannot be punished before being tried and found guilty in a court of law. To take an interpersonal example, most legal systems justify violence in self-defense: if you are being attacked, you can fight back. But this justification ceases to be relevant when the attack ceases: if you have been attacked and your assailant is walking away, attacking your assailant is not justified. Instead you must seek redress through the criminal or civil legal systems. The self-defense justification is also not applicable to pre-emptive strikes: just because you suspect that someone is planning to harm you, attacking them before they make an aggressive move is not self-defense. Plotting to commit a violent crime is indeed itself a crime and punishable as such, but does not give rise to a justification of violence against the person so plotting, until the attack is initiated. Even if people have previously committed violent crimes and are suspected of plotting further violent crimes, if my understanding is correct, nevertheless the self-defense justification cannot be invoked simply because they are the sorts of people who commit violent crimes (although greater than normal police caution is certainly called for). The self-defense justification must be based on an actual ongoing attack initiated by them as aggressors.
If the “War on Terror” is not in legal terms a war to which the Geneva Conventions apply, then the rules of peace-time due process must be upheld. A government therefore cannot invoke the self-defense justification for violence except where there is an open confrontation initiated by a hostile outside force. Thus shooting terrorists attempting to detonate a bomb clearly falls under the self-defense justification, but tracking down people who have attacked you and killing them there falls outside self-defense justification. The key component of Professor Addicott’s argument that an “enemy combatant” is a “legitimate target at all times” (emphasis his) requires there to be a state of war. In the absence of a state of war, a violent assailant is not “a legitimate target at all times” but only when actively prosecuting an attack. Apart from an initiated terrorist operation, a terrorist is a criminal who must be treated with due process.
It is particularly important for the US to recognize that the “War on Terror” is a rhetorical turn of phrase and does not give rise to a state of warfare in light of the disparity of suffering. Americans know we are not living in a warzone. Pakistanis, especially those living in Waziristan, might be more inclined to consider themselves as living in a state of warfare. But for the many non-al-Qa’ida aligned Pakistanis in Waziristan (almost a million), if there is a state of warfare, then the US is clearly the aggressor, because those non-al-Qa’ida aligned Pakistanis have done nothing against the US. I would suggest that the US government should weigh carefully whether it wants to assert that the drone strikes are part of a state of warfare, a state in which the claims of self-defense may be found unconvincing.
Again, let me repeat that I am not a lawyer. But it seems to me that the legal justification of targeted killing and lethal drone strikes depending on America’s defensive war against al-Qa’ida, invokes obviously inapplicable “rules of war”. The “War on Terror” is a rhetorically savvy American public relations push, but it is not a war to which the “rules of war” could possibly apply. In the absence of a state of warfare, the due process requirements of the rule of law in civil society outweigh the national interests in the targeting killing of known or suspected criminals by surprise when they are not actively carrying out criminal operations. President Obama indicated his “strong preference for the detention and prosecution of terrorists,” but a strong preference is not enough. “Self-defense” should never be a legal cloak for violent counter-aggression which bypasses due process.