Ken’s Not-Yet-Response re Drone Warfare and Targeted Killing and Professor Alston’s Report

I have been flattered to be called out on the topic of drones, targeted killing, the CIA, and related issues arising mostly from the release today of Professor Philip Alston’s UN special rapporteur report (press release here).  Deborah has a useful summary and some important quotes from the press release in her earlier post.  I’ve read the report once, and am reading it again, but am not ready to comment.  Well, not quite.  I’m under pressure to produce some commentary for some newspaper and print journalism, while getting the grading completed before my faculty’s $100 a day late fine kicks in … sorry to punt, but I’m not quite sure I want to weigh in with a quick blog post as yet on the topic (okay, this gets a little longer than planned, but it’s not really a response to the report).

I will say, though, that Philip’s careful discussion, set against the way in which the State Department frames the issues, is a demonstration once again of the ways in which public international law seems to be increasingly discourses passing in the night.  It’s one reason I hesitate to take the issue up here – I’m not persuaded that we all speak a sufficiently shared methodological language in these highly intertwined legal-political issues to be able to do much more than set out a view and the sources that we find persuasive.  The importance of actual historical state practice of leading states, or not, on the one hand, versus the importance of such things as pronouncements of the ICJ or other tribunals or statements by UN bodies or rapporteurs or military manuals of states that don’t actually fight, or not, on the other … you see the problem.

So, yes, I endorse the “independent” self-defense view as an alternative legal basis for the use of force, which is to say, I reject the view that uses of force are a binary exhausted by law enforcement and armed conflict (I’ve posted another round of this discussion and the CIA in the second hearing testimony that I’ve just posted at SSRN).  Given the existence of an armed conflict with Al Qaeda, among other parties at this point, whether any particular drone strike is an act within the armed conflict or an exercise of independent self-defense is open to interpretation, with the possibility of overlapping rationales in some cases.

I endorse the State Department’s view of this, as I understand it from Legal Adviser Koh’s ASIL speech, and think it nothing novel – merely the reassertion of US legal views – going well back before the Obama, Bush fils, and Clinton administrations, to Reagan and Bush pere, and no doubt well before that even.  If a state cannot or will not control its territory to prevent it from being used as safe haven for terrorists or terrorist groups, then even the important international legal rule of territorial sovereignty can be overcome by an affirmative defense of self-defense; that use of force might be in the form of armed conflict, but it might be something that does not rise to that level of hostilities and thus constitute an act of self-defense use of force simpliciter.  That use of force is justified under jus ad bellum and is directed against the threat – the terrorists – and because it is a use of force, it must meet standards that are, as the Legal Adviser said, the principles underlying armed conflict rules, distinction and proportionality and, I would add, necessity in the first place in determining to target.  Necessity giving rise to self-defense; distinction in defining the target; proportionality in the evaluation of collateral damage.

I don’t see as those rules allow for anything less in the hands of the CIA than the standard the military would apply in armed conflict as such; the requirements for intelligence-driven targeted killing might require, indeed, a higher standard.  I can’t say as I’m persuaded by arguments that the CIA is necessarily or in fact below the standard of the US military in how it evaluates targets and collateral damage; transparency and actual application of standards are two different things.  The call for the CIA to get out of it, on the grounds that it is less transparent and, therefore, less accountable and in fact falls below the standard of the military is, in my view, unsustained.  The CIA could probably do a better job – utilizing, for example, actual Congressional hearings rather than leaks to the press – of stating what its legal standards are, without giving in to the ACLU’s fishing expedition FOIA – a FOIA that would provide AQ years of material to learn from.  But the right way to do that is through Congress.  If the answer is, well, we at the ACLU or the UN won’t be able to definitively say one way or another unless you share the data with us, well, the answer is, why should we?  Who elected you to the job of arbiter of US national security?

There is a process under US law, well established, for oversight and accountability.  I’m in favor of strengthening it, in fact, precisely as uses of force become more discrete and hence a more easily available tool of policy – but that’s a matter of strengthening Congress’s role, and acceptance of responsibility for when it signs off as having been meaningfully informed, not an argument for bringing in parties, such as the UN or the NGOs, that have endless high-minded views on what the US should do, and no responsibility for the protection of the commonweal – no stake or investment in it, or in the protection not just of the American people, but the lawful reduction of risk to its own forces.

At any given point in time, after all, the body to which Professor Alston delivers his report, the UN Human Rights Council, has some number of states not just indifferent to the United States and its protection, or looking for ways in which to exercise HRC membership as a mechanism for rent-seeking from the (still, if barely) superpower, but actual enemies of the United States, states that wish it and its people much harm. (And that in a chamber the ceiling of which is covered with a mural of such magnificence – $23 million of magnificence – that one of its main sponsors, Spain, felt compelled to raid its international development aid budget to pay for it.  In Our Circles it is often considered beneath one’s dignity and Not Cricket to point out such things as a preamble to taking up an expert report that merely happens to have been commissioned by this severely compromised body but which stands alone as to its content and the impeccable credentials and bona fides of its author; I understand, but beg to differ.  The legitimacy, or not, of the report’s sponsor matters, too.)

One should therefore ordinarily give human rights officials and the leading NGOs a respectful hearing, even when they respond to a mandate from a body whose moral bona fides – where, I guess I’d put it, where in order to consider showing up at the institution, you have to imagine what it is supposed to be and not what it is.  And, in the case of someone with as much professional eminence and personal integrity as Professor Alston, someone who confers on the UN Human Rights Council a dignity and gravitas that it could frankly never achieve on its own, a very respectful and close hearing – and yet never a seat at the table of national security policy.

There is also an important US policy argument as to whether the CIA has comparative advantage over the US military in essentially conducting what, at this point, might be starting to amount to a parallel conventional war in Pakistan, to judge by Adam Entous’ recent impressive Reuters reporting – or whether it would be better for the Agency to stick with intelligence-driven, high value target, targeted killing in true covert action.  In a world driven entirely by internal US policy concerns, I would be far from surprised if the CIA itself did not believe that it should leave the conventional to the military and specialize in the covert.  That policy judgment has to be set, however, against Pakistan’s obvious desire at this point still to maintain even a fig leaf of deniability that the US military is acting inside Pakistan.  If the Pakistan government’s conflict with its own Taliban evolves to the point that the US is accepted as essentially co-belligerent as a political matter, then that calculation might change.  But that’s policy, not law.

In any case, it is hard for me to see the argument over the CIA’s legal standards, versus the military’s, as other than a long run stalking horse for an a priori view that, first, the CIA should never be engaged in the use of force and, second, that all uses of force must be either law enforcement or armed conflict.  That view and the self-defense view are not the only available legal views on the table, I should add – the second round of hearings, Drones II, on April 28 in front of Rep. John Tierney’s House Subcommittee offered a much wider variety of views – as offered by me speaking in favor of the self-defense view, Mary-Ellen O’Connell for the “binary” view above, but also David Glazier speaking to an armed conflict view that nonetheless does not accept the geographical limits view, and William Banks speaking to the questions of CIA participation.  Add to that written submissions by Michael Lewis on the armed conflict view, and the ACLU’s view of limits to geography and, in its view, the application else where of international human rights law, and one can see that the view of the legal situation is much more nuanced and complex than sometimes thought.  I have just finished posting my own hearing testimony to SSRN, and I would encourage the other witnesses to consider doing so as well.

But this is not a commentary on Professor Alston’s report, I’m afraid; I’m not done re-reading it.  It’s more a comment on various comments that have gone up here, and other places, from KJH, Julian, Howard, Marko, and others, preceding the release of the report.  And while I am briskly clearing the decks here, before getting to the special rapporteur’s report, let me just add – KJH recalled to me Marko’s question to me re self-defense several months ago at EJILTalk.  I was busy with other things and let it slide, but partly I didn’t think I was enough on the same page with Marko to be able to engage usefully.  (I should add, though, that people in the US government should read closely Marko’s post on the irreducible categories of international and non-international armed conflict and why they are the “residual” forms of armed conflict, rather than a category called armed conflict that is then further subdivided.  It has bearing on this question of where an armed conflict is underway.)

Meaning, Marko starts from two points – one is extraterritorial application of the ICCPR.  I don’t buy that, the US doesn’t buy it – and I don’t think its position unprincipled or ungrounded.  If one disagrees not just as to the view, but also as to whether it is a principled position or not, it seems hard to have traction in the rest of the discussion, with all admiration and respect to Marko.  Marko’s second point (really the first) went to self-defense as being about the state whose sovereignty is being violated, not the terrorists.  I truly think we – and the US – and Marko are on different, irreconcilable pages here; I can’t imagine the US thinking that the act of self-defense is anything other than aimed at the terrorists, and the violation of sovereignty of the local state is collateral to that.  It is a violation of that state’s sovereignty, but territorial integrity is not everything, as Sofaer said in his 1989 speech and Koh essentially reiterated.  But I think I must not understand Marko well, because I couldn’t understand how he meant self-defense.

Okay, I’m about to get fined $100 unless I stop here!  (Plus, it is morally right for students to get their grades on time – I don’t just respond to incentives, and frequently I don’t respond to them.) (I made a few change midway through.)