Predators Over Pakistan

Baitullah Mehsud, the Taliban commander who orchestrated, among many other things, the assassination of Benazir Bhutto and many other atrocities, is dead.  The initial, somewhat confused reports expressed some doubts, but experts are gradually concluding that a US Predator missile strike killed him.

At the strategic level, this is one area in which the US is having success.  One can find skeptics, such as David Kilcullen, but compared to the ground war in Afghanistan, for example, the missile strikes are a success.  Even the Wall Street Journal editorial page has acknowledged this – for example, in an editorial this morning:

The strike also underscores that Pakistan has been an early Obama Administration foreign-policy success. Only three months ago, the Taliban were marching on Islamabad and U.S. officials were fretting about the lack of Pakistani will to resist Islamist extremism. But the U.S. worked behind the scenes to encourage a counterattack, Pakistan’s military has since retaken the Swat Valley in the north, and Mr. Zardari’s government has put aside some of its petty domestic squabbling to focus on the main enemy.

President Obama has also stepped up the pace of drone attacks, which are now thought to have killed more than a third of the top Taliban leaders. These columns reported a month ago on an intelligence report showing that the strikes are also carried out with little or no harm to civilians.

For cosmetic political reasons, the Obama Administration no longer wants to use the phrase “global war on terror.” Yet in Pakistan and Afghanistan it is fighting a more vigorous war on terrorists than did the previous Administration. Whatever you want to call it, the death of Baitullah Mehsud makes the world a safer place.

The legal basis for the CIA-run Predator campaign has not really been questioned, largely, in my view, on account of the immunizing ‘glow’ of the Obama administration.  That glow has many sources – an international community that is, for the time being at least, giving a general pass to the Obama administration on these issues, a Republican opposition that thinks, as the WSJ editorial indicates, that this is a splendidly good (and for that matter legal) undertaking.  The legal peculiarities, even ironies, mount.

For example, one of the criticisms of the US Predator campaign was that it caused civilian damage in Pakistan by only going after targets of specific interest to the US in its Afghanistan war.  I always thought that dividing line trumped up and a purely artificial one – and by many accounts, so did the Pakistani officials who privately signed off on the attacks.  But the US, both to demonstrate to Pakistani public opinion that it was also looking to Pakistan’s interests in fighting its own jihadists who, after all, had been seizing more and more national territory, and because the US recognized that the fighting was, as everyone had strategically recognized, thoroughly interconnected, deliberately went off Mehsud because of his status as the key jihadist against Pakistan, rather than against the US.

Yet the targeting of Mehsud by the CIA because he is a threat to Pakistan, and to demonstrate to the Pakistani people that the US will use its assets to go after the targets they most want destroyed, raises legal issues of both a domestic and international law nature.  These are not legal issues for me, skeptic and all that, but they surely would be within an otherwise influential school of thought within international law, were there no Obama-administration-glow to protect it from questions.  And perhaps still might some day.  E.g.:

• Domestically, in what way is this covered by the AUMF?  Yes, certainly I, and Secretary of State Clinton, think all these things and places connected in a single conflict, but that’s because on these kinds of issues, we are realists of the first order – but a slightly more legally skeptical questioner might claim that undertaking armed attacks against Pakistan’s enemies, no matter how richly deserved and strategically useful, is not quite what the AUMF says.  What precisely is the armed conflict here, and who is it with?
• On what basis is the CIA conducting these operations, in US domestic law – as part of an armed conflict, but in that case, which one specifically, and what specific provisions of its domestic authority?  (One of these days I’ll talk about the term of art distinction between “covert” and “clandestine.”)
• Is the US making an appeal, as I have argued it should, directly to self-defense jus ad bellum as it has traditionally construed it (free link to Sofaer 1989 Military Law Review Lecture), or is it treating it as a matter of an armed conflict that invokes IHL because it meets the threshold standards of a particular IHL treaty?
• And in that case, who are the parties?  If the opposing party is a non-state actor, then is the threshold met to bring it under IHL?
• If it falls short – insufficient or merely sporadic levels of fighting, etc., for instance – then in what way might human rights law apply?  Is the Obama administration still committed to the view that the ICCPR does not apply extraterritorially, and how might its view of that affect its view of US obligations in this circumstance?  (Thanks Paul for catching that! – no, nothing has happened that I’m aware of, and I’d be astonished if something did anytime in the foreseeable future.)
• Even if it is an armed conflict governed by IHL, what, if any, is the continued application of human rights law?
• How are decisions made concerning the necessity of the attack (particularly going to the identity of the target) and its proportionality under IHL standards of “disproportionate” damage to civilians?
• And, finally, while not wanting to enter into current controversies concerning HRW, suppose that one simply changed all the place and person names in this recent HRW report on Israeli targeted killing in Gaza to the Mehsud attack in Pakistan or some of the earlier CIA Predator strikes – would there be any difference in the analysis or conclusions – conclusions that raise issues of “unlawful” acts and even “war crimes”?  That last question takes up a much larger question of the standards of proportionality, but I raise it here because, if one were making even a cursory list of legal issues, it would certainly have a place on the short list.

I’ve put in a few links – I don’t necessarily agree with their views, and more typically do not, but they show the variety of discussion that targeted killing has aroused.  My own views, as I’ve flagged (flacked unmercifully, yeah, I know) several times here, are appearing in a book chapter on US counterterrorism policy; a version is up at SSRN.  Will this ever become a legal issue for the Obama administration?  Unclear; stay tuned.