The Mary Ellen O’Connell and Benjamin Wittes Debate on Targeted Killing and Drone Warfare

Interest in targeted killing and drone warfare is not letting up in intensity to judge by the pace of events on the topic. Right on top of my debate with Mary Ellen O’Connell on this at Washington University two weeks ago, Mary Ellen and Ben Wittes undertook another one, this past Saturday at International Law Weekend in New York.  It was considerably more testy than the Washington University debate.  Some in the audience were unhappy with the confrontational nature of the exchange; some thought it refreshingly direct; my view is the latter and congratulations to Vincent Vitkowsky for an excellent job of moderating the debate.  I’m sure it will generate a lot of interest and a lot of pushback in several directions.  Ben has posted up video of the event at Lawfare.

Ben has also added a second post with some transcription, specifically on the question of whether, if one takes Mary Ellen’s statements at what they say, Barack Obama is not therefore a “serial killer” for having directly ordered the CIA to carry out what Mary Ellen characterizes as “crimes” and Harold Koh at the least an aider and abetter.  Ben has in mind, for example, statements in Mary Ellen’s widely noticed article, “Unlawful Killing with Combat Drones,” which among other things declares that “members of the CIA are not lawful combatants and their participation in killing—even in an armed conflict—is a crime.”  One might argue Ben’s choice of provocative words in the debate – serial killing – or one might argue various technical points over whether it is murder or not murder, whether or not there can be the proper intent given the presumed opinions of many lawyers advising inside the government (many of those questions came up, of course, in the detention-interrogation-rendition arguments as well).  His fundamental point is to say, as far as I understand it (and if I do, I agree), if you declare that CIA participation is a crime, then it follows that somewhere there is a perpetrator.  Not to go after him or her is to permit impunity; it is not a matter of saying, well, you are committing crimes, but all we want to do is persuade you to change your policies going forward to bring you into compliance with international law.  Crime is a charge of more than mere non-compliance.  If there is a crime, someone must be responsible for doing it, whether you call it murder, criminal extrajudicial execution, what have you.

And whether one calls these crimes serial killing, murder, extrajudicial execution, etc., they are still a large number of killings. It’s not the kind of crime that just happens to be a tort or civil infraction criminalized, but for which as a regulatory matter one can simply agree not to do it any more, like various of the lesser environmental “crimes” for which corporations routinely pay criminal fines in the domestic United States.  Killing is not like that, presumably, at least not when it’s systematic, systemic, large-scale, and under direct orders.

The article by Mary Ellen specifically says who commits a crime – members of the CIA.  Yet they are not acting as rogues in this, but rather under direct orders of the President.  If it is correct to call the acts a crime, then it is correct to identify the criminals, and those criminals will have to include those who ordered them to do the crimes.  So what is it to be?  I think it a salutary reminder that one ought to be careful in cranking up the machinery of international criminal law over contested interpretations of international law. One risks either over-invoking it or trivializing it or both.  I take it that was Ben’s larger point in seeking to force the question onto the table by insisting on using an ordinary, non-legal term like serial killing.

I have another concern beyond this, however.  It goes to one of the responses in the debate from Mary Ellen when Ben insisted in pressing the point.  It is that it would be politically unrealistic to consider going after Barack Obama or Harold Koh, so there is no point to raising the issue of criminality and, I took by implication, Ben was engaging in a strawman argument to do so.  But why should it be seen that way?  Ben did not assert the question of criminality in the first place, and then suddenly or unreasonably put it on the table, after all; it is not a proposition tossed up by Ben.  “Crimes” as an issue were raised in the first place by Mary Ellen against CIA officers.  Ben has pointed out that they are acting under perhaps the clearest, deliberately and (admirably, in my view) least deniable set of orders from the President of the United States in a long time on contentious national security matters.  If there is a crime, there must somewhere be a criminal or else it is merely a series of unfortunate events; if there is a criminal, he or she did not act alone, because these agents acted under instructions from a principal.

So this is my concern: If it is politically unrealistic to consider going after Barack Obama and Harold Koh and Leon Panetta and Joe Biden, et al., and that is the reason for not pursuing criminal sanctions that follow upon criminality, well, one has to wonder when it will be politically realistic.  It seems hard not to think that for many who agree with the criminality view, that moment comes when there is no longer a Barack Obama at the helm, no longer beloved Harold Koh at DOS, and instead President Palin has concluded on the basis of the acts and written opinions of the previous administration that Al Qaeda has shifted, under relentless pressure by the Biden Brigades of UAVS and JSOC and CIA teams on the ground, to new grounds in lightly governed territory or an openly hostile state.  Candidate Obama said in March 2008 that he would follow AQ to Yemen or Somalia or anywhere else they sought haven; he repeated it many times in office, and as we all found out, boy-oh-boy did he ever mean it.

But now that President Palin and Vice-President Jindal are at the helm, all of a sudden many people find the situation somehow … different.  It all seems so … criminal.  The alleged criminals all seem so … prosecutable or indictable, somewhere, somehow.  Despite angry assertions that the policies are identical, a wave of law scholars produce an endless number of scholarly tomes and declarations, promptly submitted by the ACLU and CCR to courts everywhere they can find as earnest amicus briefs, that it really is different.  It is very hard for me to see, as a pure political matter in the demimonde of the activist-scholar, international law advocacy community, that “politically realistic” is not simply another way of saying, “Republican administration.”

I am not attributing this to Ben, or to Mary Ellen.  I have expressed the concern many times over the last year, in Congressional testimony, in my long Weekly Standard piece, Predators over Pakistan.  I note that Harold Koh’s ASIL speech was admirable, in my view, not least because it moved to foreclose an important part of this.  How?  Because it acknowledged the long-held US position on self-defense as an independent ground for the use of force.  Koh perhaps did not need to do that in this speech if the sole purpose was to provide a plausible ground for targeting people with drones in Yemen or Somalia.  The speech could plausibly have rested on the narrower grounds of a non-international armed conflict in which the participants had fled to a new place and the ensuing hostilities followed their persons.

This is, after all, the administration’s preferred view of the situation of AQAP and Al Aulaqi, if I read its statements correctly.  It believes that it has available to it, plausibly and in good faith, two alternative legal rationales for targeting them and targeting them there.  They are, first, non-international armed conflict has followed the participants to Yemen or that AQAP is sufficiently co-belligerent with AQ proper; or else, second, that it is an independent exercise of self-defense under international law.  I agree that each is available, plausibly and in good faith; I have strenuously argued the case for self-defense as the correct, but not exclusive, rationale in the past.  But as more information has become publicly available on the factual nature of AQAP and its relationship to AQ, I believe that the armed conflict rationale has grown stronger as a factual characterization, and I think that true of Somalia as well.

The Obama administration has reasons given its preferred domestic law lens of the AUMF for relying on the first.  There is nothing wicked or bad faith about that; the international law views are plausible and offered in good faith, and if it sees one as meshing better with its domestic law views, that is fine, too.  But notice how different this approach to “international law” – regardless of whether one agrees with the specific legal judgments being made, the general approach is the traditional one of the State Department over the long run: the proper basis for showing that there is law and its interpretation is mingled without apology or consternation or sense of bad faith with diplomacy, politics, the facts of how states of varying weight and power and influence in the world see things, and a general sense of pragmatism that informs, or anyway ought to inform, the nature of international law itself.

It means, among other things, however, that the appropriate language for discussing the “law” is “plausibility” of alternative interpretations, rather than anything quite so stark as the categoricals and categorical imperatives that some, wishing they lived in a federal world with a supreme counstitutional authority to interpret these matters, might prefer.  The view of international law held by the United States government over the long run is respectful of international law – but an international law that has built into it – built into the conception of what the law is and what qualifies as its interpretation – pragmatic views of alternative plausibilities that take account of the real world.  So far as I can tell, the State Department thinks that the assertion of that pragmatic nature, far from being an embarrassing real world act of necessary bad faith, actually saves international law from itself, because of its tendency otherwise to drive itself over a cliff of idealism in which it achieves theoretical perfection while depriving itself of meaningful connection to how the leading sovereignties actually behave.  International law (I’m swiping this phrase from someone, not sure who) has as its preferred political tense the future perfect.

Harold Koh did not strictly speaking need, strictly speaking, to reach to the international law of self-defense, in other words, in order to address a narrow question of US legal policy.  He could have stuck with armed conflict and plausibly so.  But he did so, presumably because he, and others in the Obama administration, understood that they have a fiduciary obligation to future administrations and future US presidents, to protect and preserve their powers lawfully to act, and that this includes self-defense as Legal Adviser Koh referenced it.  He drew on the past jurisprudence of the Department of State, noting that it, too, is a source of law and its lawful interpretation, and looked to its future, in pragmatic ways broader than the narrow question that faced him.  Self defense, too, is a plausible framework of law in this situation, particularly in consideration of the practices of states when it comes to self-defense outside of armed conflict strictly defined, and long and wide state practice regarding safe havens for non-state actors.  In some future situations it will be the preferred and perhaps only available legal view.

But these arguments over plausibility and interpretation do not lend themselves to invocations of criminality and crimes, whether their prosecution is politically realistic or not.  That kind of language raises the stakes in ways that are really beyond the proper bounds of this discussion.  That is what I took to be Ben’s larger point.  To that, I add that this will be tested when next there is a Republican administration, and suddenly what was politically infeasible looks (at least for purposes of strategically de-legitimizing otherwise accepted lawful actions of the President) feasible once again.  When Harold Koh is replaced by a John Bellinger of the future; when the actors lack the long and deeply protective connections that proper membership in the academy brings; and when there is a general sense among progressive elites that the NASCAR yahoos are (back) in power and that this is the moment for de-legitimating what could not be de-legitimated when it was one of our own – well, what looks infeasible now will then look, I think, remarkably feasible.

Which is a leading reason, in my view, why a perhaps newly Republican Congress ought to set about getting directly on the table the detailed reasons why leading legal minds of the current administration think that their policies are lawful. And passing laws specifically to say that they are lawful, in Congress’s view, as a kind of memo from the political branches to US courts in considering future cases that will arise.  Before officials leave government (Note: abjuration to incoming Congress – ed.).  The national security apparatus that Vice-President Biden would like to leave behind after eight years in office is one, after all, that is wedded, fused, bonded, and genetically interwoven with targeted killing through remote drones and special ops teams and intelligence-driven uses of force.  It is being tested in AfPak, for better or worse, in what a professor of mine in a class on strategy at UCLA once remarked as being the most difficult matter to execute: strategic (or tactical, for that matter) withdrawal under fire. I frankly never took Joe Biden seriously before, and I probably still don’t buy important parts of it strategically, I suspect; still, the account in Bob Woodward’s book has forced me to do a serious re-think of the Vice-President, surprising as I find it to utter these words.  The strategic track is being laid down now – but even if it is only a narrow part of US national security strategy, it will be a crucial tool.

It would be a good thing if the administration not only laid this down as a strategic direction in technology, doctrine, operations, etc., but followed up on Legal Adviser Koh’s admirably far-sighted, indeed generous decision to protect the legal bases of this country’s future national security apparatus, and left behind a clear record of the legal views is has adopted in its policies.  Not the ACLU’s fishing expedition for a guide-to-targeting (where 99% or so of the value, in my view, would accrue to AQ’s intelligence services were the ACLU’s FOIA to be answered seriously, question by question), but a clear set of legal statements linking policy with the administration’s view of the law; neither the ACLU nor Special Rapporteur Alston is wrong to seek such a general statement in the abstract.

Footnote to Jessup moot court teams doing this year’s problem on targeted killings and drones: Bear in mind that the nature of Jessup competitions tends in some situations to over-emphasize written legal documents of formal interest, such as ICJ opinions, and under-emphasize actual state practice of states, because state practice requires careful, but also always contestable, historical inquiry.  It is one reason I am unenamored of politically exciting Jessup problems on national security topics which, in the real world, cannot avoid historical state practice as a source of law but are difficult to integrate into legal processes that systematically favor formal documents.  Jessup works well in legal problems that are by their nature driven by documentary evidence; less so in such things as targeted killing.

It is always worth keeping in mind Sir Adam Roberts famous abjuration to international lawyers – though, if followed, it will inevitably lead one in these politically controversial matters to be less categorical about one’s conclusions than lawyers typically like:

There is little tradition of disciplined and reasoned assessment of how the laws of war have operated in practice.  Lawyers, academics, and diplomats have often been better at interpreting the precise legal meaning of existing accords, or at devising new law, than they have ben at assessing the performance of existing accords or at generalizing about the circumstances in which they can or cannot work.  In short, the study of law needs to be integrated with the study of history: if not, it is inadequate.  (Sir Adam Roberts, “Land Warfare: From Hague to Nuremberg,” in The Laws of War: Constraints on Warfare in the Western World (1994), at 117.)