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

by Kenneth Anderson

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.)

http://opiniojuris.org/2010/10/26/the-mary-ellen-oconnell-and-benjamin-wittes-debate-on-targeted-killing-and-drone-warfare/

17 Responses

  1. Does “abjuration” work here, rather than counsel, charge, warning, admonishment, or even conjuration ?  Perhaps there is a technical definition that eludes me.

    In any event, the act – however you wish to describe it – is much appreciated.

  2. Ah – it was probably adjuration you meant, with a “d”.  Go ahead and delete these nit-picking comments if you wish.

  3. I, at any rate, would join you in adjuring Congress not to abjure timely legisation, nor to leave the law to the uncertain conjurations of the courts.

  4. Just because the President does it and just because a future Congress ratifies it does not make it lawful killing as a matter of international law.  And just because it is a Democrat does not mean that criminal prosecution can not be invoked.  Bush crime and cover up can be prosecuted; Obama crime and cover up can also be prosecuted.

    Our inability to resist – with the admirable exception of Professor O’Connell – acquiescing to unlawful killing by those at the levers of power is a weakness we have in our go along to get along mentality.

    Maybe I am just a crazy man, but I am SHOCKED at the baiting of Professor O’Connell with analogies to Ted Bundy. 

    My memory of Ted Bundy is of a particularly perverse serial killer who was a predator who specifically targeted young women. 

    Hannibal Lecter – while fictional and an equal opportunity serial killer – had a strong undercurrent of sexual violence (Jody Foster and I can not think of the other protagonist in the second movie). 

    I find that invoking those images to a distinguished woman international law professor as part of a debate profoundly distasteful and trivializing of the actual crimes of Ted Bundy and insulting to her – including layering in a bit of  sexual aggression/machismo in such a debate.  I imagine that women in international law may fatigue of having to deal with this – particularly in this testosterone driven space where so many are so eager to kill so many for what are always the best reasons.

    Mary-Ellen – stay strong!!!

    But what do I know.

    Best,
    Ben

     

  5. Kenneth,
    With regard to your statement:

    “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.”

    I assume that you see the reciprocity problem for the U.S. which comes with viewing international law in this way. For example, would you agree that because Iran’s legal arguments regarding its compliance with the NPT and IAEA safeguards agreements are “plausible,” that the U.S. should accept them as legitimate, and understand that this is the limit to the role that international law can play in this issue area? That certainly does not seem to be the position of the U.S. government, which consistently argues that Iran is incorrect in its legal arguments, and is in fact in breach of its “nonproliferation obligations.” 
    Dan Joyner

  6. A correction (please delete the other one above)

    I would also say that, as a black man, I am also a bit SHOCKED at the serial killer meme being used on Obama.  Having organized a conference in 2008 on the bicentennial of the abolition of (the slave trade) in the United States in 1808 I became painfully aware again of just how deep are the tropes and legacies of slavery in the collective unconscious of Americans. 
    The “scary black man”/black male sexual potency meme/undercurrent in the selection of serial killing and specific reference to Bundy and Lecter in terms of Obama is an old old game.  It does that wonderful little “ping” to the images of Birth of a Nation but in such a filtered way that most people do not even see the triggers to those sections of their cortex (if that is the right part of the brain).
    But, what do I know.
    Best,
    Ben

  7. Response…
    Some of this is getting a bit wild.  I simply wish to note that Mary Ellen has taken important stands against serial criminality of several members of the  Bush Administration, and so has Ben.  I disagree with Mary Ellen with respect to self-defense and drones, but I clearly agree with Mary Ellen and Ben regarding the need to end impunity with respect to those former members of the Bush Administration who are reasonably accused of having authorized, ordered, tolerated (as a leader re: dereliciton of duty), and abetted international crimes such as secret detention (forced disappearance, etc.) and torture and cruel, inhuman, and degrading treatment.  See, e.g., http://ssrn.com/abstract=1331159 ; http://ssrn.com/abstract=1470945 ; http://www.cambridge.org/9780521884266

    One of the valued aspects of panel discussions in this country involves tolerance of other viewpoints.  I remember during the Vietnam War, when I was on active duty, the wonderful civil debates on the legality of the war between, for example, Quincy Wright and Richard Falk on the one hand and Myres McDougal and John Norton Moore on the other.

  8. Wow Rafiq.  I did not call Wittes a racist or sexist.  Those are your words.  I saw him playing on very old tropes that do not speak to the substance of the argument.  It’s an old game and I called him out on it because I think it is ‘beyond the pale’.  It is like listening to apologias for torture.  At some point, they become offensive – to at least some of us.
    But what do I know.
    Best,
    Ben

  9. The term “serial killer” connotes a sociopath, so it’s certainly an inapt choice of words.  I’m not sure being called a “serial killer” is much worse than being called a “war criminal” or hostis humanis generis,” but in any case, translated into proper legal terminology, Witte’s point is sound.  It’s not baiting Prof. O’Connell to follow her argument to its logical conclusion and to question whether she can defend the argument in light of its practical consequences.  This is precisely the purpose of conferences like ILW.  Prof. O’Connell is undoubtedly sufficiently resilient to withstand a bit of hyperbole during an academic discussion.

  10. I have no doubt about the resilience of Prof. O’Connell.  I want to be (and am now) on record to say – at least to me – it was offensive in ways that are more insidious then just inapt.  I know Wittes chooses his words carefully and thus found this a disturbing path or choice.  Clearly these things do not seem to resonate as strongly to others in this space – but they do to me.  But what do I know.
    Best,
    Ben

  11. Response…
    not all serial killers are “antisocial.” 

  12. Does anyone actually know, definitivly, that the CIA has actually engaged in combat operations using drones? As I understand it, they function in an intelligence capacity with DOD personel. I see no reason why they’d engage in such activity since it certainly isn’t necessary (plenty of people within the military are trained to do these types of missions, and many have the secretest of top secret clearances). Private contractors, too, are trained to fly these drones but they don’t function in a combat capacity either (they serve alternately as instructors, or get the things into the air, and then the drones are taken over by defense personel stationed elsewhere).

  13. Noting that in any event, if the CIA had engaged in ‘combat operations’ in an armed conflict, such action in and of itself is not a war crime. A civilian who takes a direct part in hostilities (DPH) loses immunity from direct attack (although noting that in a non-international armed conflict, the non-State actor has no legal right to target anyone, including government armed forces) and does not enjoy the combatant’s privilege, but ‘mere’ DPH is not a crime under international law.

  14. Response…
    Yes, and a consequence of not being a “combatant” (e.g., member of the regular armed forces of a party to an int’l armed conflict) is that such person does not have “combatant immunity” for lawful acts of war (e.g., the targeting of a DPH civilian) and is subject to prosecution under any relevant domestic law for a crime such as murder, manslaughter, assault and battery.  Relevant domestic law could be U.S. law (place where the drone is being flown from) and Afghan and/or Pakistani law (place where the targeting occurs given that such a country has objective territorial jurisdiciton because the flyer intended to produce effects in A and/or P, produced effects in A and/or P, and “acted” in A and/or P per the continuing act fiction if not also per the “agency” rationale for purposes of jurisdiciton under customary internaitonal law).  Thus, A and/or P could request extradtion of the flyer to stand trial for murder, manslaughter, etc.  One argument to the contrary would be that when engaging in self-defense, general patterns of relevant practice and opinio juris seem to tolerate non-combatant conduct, as within an implied immunity, as long as the conduct is permissible under Article 51 of the Charter in or outside of a theatre or context of armed conflict.
    Generally, it is safer to have combatants flying the drones. 

  15. Jordan, noting that neither common article 3 nor Additonal Protocol II articulate a combatant immunity for regular armed forces in a non-international armed conflict, are you of the view that there is nonethless an ‘implied immunity’ (presumably under customary international law) for regular armed forces during a non-international armed conflict?

  16. Response…
    good question, and general patterns of practice and opinio juris about such would seem to indicate yes.  They will probably have immunity under domestic law if the insurgency takes place merely within their county and they do not violate domestic law in any particular manner.  I do not rule out the possiblity of Article 51 self-defense against an insurgent armed attack from within a state’s territory, which would also involve an implied immunity for tageting DPAA (those taking a direct part in armed attacks).  See also http://ssrn.com/abstract=1520717
    The new final page numbers for this article will be 237-280.

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