19 Sep Philip Alston on Targeted Killing
Philip Alston has posted an important new essay on targeted killing on SSRN. Here is the abstract of the essay, which is forthcoming in the Harvard National Security Journal:
This Article focuses on the accountability of the Central Intelligence Agency (CIA) in relation to targeted killings, under both United States law and international law. As the CIA, often in conjunction with Department of Defense (DOD) Special Operations forces, becomes more and more deeply involved in carrying out extraterritorial targeted killings both through kill/capture missions and drone-based missile strikes in a range of countries, the question of its compliance with the relevant legal standards becomes ever more urgent. Assertions by Obama administration officials, as well as by many scholars, that these operations comply with international standards are undermined by the total absence of any forms of credible transparency or verifiable accountability. The CIA’s internal control mechanisms, including its Inspector-General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a ‘free pass’ to the CIA in this area; judicial review has been effectively precluded; and external oversight has been reduced to media coverage which is all too often dependent on information leaked by the CIA itself. As a result, there is no meaningful domestic accountability for a burgeoning program of international killing. This in turn means that the United States cannot possibly satisfy its obligations under international law to ensure accountability for its use of lethal force, either under IHRL or IHL. The result is the steady undermining of the international rule of law, and the setting of legal precedents which will inevitably come back to haunt the United States before long when invoked by other states with highly problematic agendas.
The essay’s emphasis on transparency and accountability is particularly critical — and distinguishes it from the burgeoning legal literature on targeted killing. Alston is particularly well-placed to comment on the subject, having spent six years as the UN’s special rapporteur on extrajudicial, summary or arbitrary executions. (He’s also a graduate of Melbourne Law School, I’m proud to say.)
To crib from Larry Solum, read Alston!
Response…
We will have to see the entire article, but I don’t know why the Administration necessarily cannot live up to its obligation aut dedere aut judicare and either extradite or initiate prosecution, or even render to an international tribunal with jurisdiction. Of course, this Administration has absolutely failed to initiate prosecution of those who are beyond reasonable doubt reasonably accused of war crimes and crimes against humanity, including Bush, Cheney, Rumsfeld, Rice, Gonzales, et al. — something that we DO know about (thanks in part to publicized memos from the prior Administration). And the failure of President Obama to faithfully execute this law is violative of the Constitution and his oath — and can even lead to criminal responsibility for dereliction of duty if others are tempted to torture or engage in secret detenton because of Obama’s failure to act.
And doesn’t it beg the question(s) whether law has actually be violated re: the drone targetings? Does accountability require disclosure of properly classified matters? Even the ICC allows non-disclosure of certain secrefied information. Yet, of course, as Professor Radsan has written, there could be greater oversight within the Executive branch and by members of Congress.
“This in turn means that the United States cannot possibly satisfy its obligations under international law to ensure accountability for its use of lethal force, either under IHRL or IHL. The result is the steady undermining of the international rule of law, and the setting of legal precedents which will inevitably come back to haunt the United States before long when invoked by other states with highly problematic agendas.” Alston does seem a bit like Prissy speaking to Scarlett O’Hara in Gone With The Wind that the US knows nothing about accountability. C’mon man. Of course, the United States can satisfy its obligations under international law to ensure accountability. The structural excuses mask the question of will for accountability up and down the government. Of course the US can satisfy its obligations, if it decides to satisfy those obligations. If it does not, it is merely using its internal law and practices to try to extract itself from its international obligations. Nothing more and nothing less. And the will for accountability can be done in many ways that provide a range of types of transparency from secret to full blown public hearings. Alston’s logic suggests that there is a Constitutional imperfection… Read more »
I think the long term view should be considered as throwing rocks is not allowed with impunity in tort or criminal law and drone warfare (throwing bombrocks from afar) causes hatred against ALL US citizens and does no good to bring peace and the rule of law to the world-in fact, such specious arguments by the Obama only endanger all troops, visitors and tourists as well as all diplomatic missions and even potentially all allies and their citizens.
Even the former head of counterterrorism for the CIA (Robert Grenier) has written a very well thought out commentary questioning our middle east policy.
http://english.aljazeera.net/indepth/opinion/201/09/201191910
It seems to me that with GWOT having pretty much spread to the entire globe a few people are starting to realize it’s never going to work. Unfortunately, Obama and Clinton aren’t among them.