Domestic and International Legitimacy for Targeted Killing Using Drones

by Kenneth Anderson

Jack Goldsmith, writing at Lawfare, urges the Obama administration to release a redacted version of the Justice Department’s memo concluding that the targeting of Al-Awlaki was lawful — if not a redacted version, then some reasonably complete and authoritative statement of its legal reasoning.  I agree.  The nature of these operations abroad is that they will almost certainly remain beyond judicial review and, as a consequence, OLC opinions will serve as the practical mechanism of the rule of law.

The best argument against disclosure is that it would reveal classified information or, relatedly, acknowledge a covert action.  This concern is often a legitimate bar to publishing secret executive branch legal opinions.  But the administration has (in unattributed statements) acknowledged and touted the U.S. role in the al-Aulaqi killing, and even President Obama said that the killing was in part “a tribute to our intelligence community.”  I understand the reasons the government needs to preserve official deniability for a covert action, but I think that a legal analysis of the U.S. ability to target and kill enemy combatants (including U.S. citizens) outside Afghanistan can be disclosed without revealing means or methods of intelligence-gathering or jeopardizing technical covertness.  The public legal explanation need not say anything about the means of fire (e.g. drones or something else), or particular countries, or which agencies of the U.S. government are involved, or the intelligence basis for the attacks.  (Whether the administration should release more information about the intelligence supporting al-Aulaqi’s operational role is a separate issue that raises separate classified information concerns.)   We know the government can provide a public legal analysis of this sort because presidential counterterrorism advisor John Brennan and State Department Legal Advisor Harold Koh have given such legal explanations in speeches, albeit in limited and conclusory terms.  These speeches show that there is no bar in principle to a public disclosure of a more robust legal analysis of targeted killings like al-Aulaqi’s.  So too do the administration’s many leaks of legal conclusions (and operational details) about the al-Aulaqi killing.

The public accountability and legitimacy of these vital national security operations is strengthened to the extent that the public is informed and, through the political branches, part of the debate on the law of targeted killing.  That cannot be operational discussion, for obvious reasons.  But there is still a good deal that could be said about the underlying legal rationales, without compromising security.   I myself favor revisions, either as internal executive branch policy or, in a better world, as formal legal revisions to Title 50 (CIA, covert action, etc.) and the oversight and reporting processes.  One of those revisions would be to get beyond the not just silly, but in some deeper way, de-legitimizing insistence that these operations cannot be acknowledged even as a program; I would establish a distinct category of “deniable” rather than “covert,” and a category of programs that can be acknowledged as existing even without comment on particular operations.

John Bellinger, the former State Department Legal Adviser in the last years of the Bush administration, raises concerns in the Washington Post today about the best way to defend the international legitimacy of these operations.  He notes the deep hostility of the international advocacy groups, UN special raporteurs, numbers of foreign governments, and the studied silence of US allies (even as NATO, I’d add, has relied upon drones as an essential element of its Libyan air war).

[T]he U.S. legal position may not satisfy the rest of the world. No other government has said publicly that it agrees with the U.S. policy or legal rationale for drones. European allies, who vigorously criticized the Bush administration for asserting the unilateral right to use force against terrorists in countries outside Afghanistan, have neither supported nor criticized reported U.S. drone strikes in Pakistan, Yemen and Somalia. Instead, they have largely looked the other way, as they did with the killing of Osama bin Laden.

Human rights advocates, on the other hand, while quiet for several years (perhaps to avoid criticizing the new administration), have grown increasingly uncomfortable with drone attacks. Last year, the U.N. rapporteur for summary executions and extrajudicial killings said that drone strikes may violate international humanitarian and human rights law and could constitute war crimes. U.S. human rights groups, which stirred up international opposition to Bush administration counterterrorism policies, have been quick to condemn the Awlaki killing.

Even if Obama administration officials are satisfied that drone strikes comply with domestic and international law, they would still be wise to try to build a broader international consensus. The administration should provide more information about the strict limits it applies to targeting and about who has been targeted. One of the mistakes the Bush administration made in its first term was adopting novel counterterrorism policies without attempting to explain and secure international support for them.

The problem of international legitimacy is always tricky, as Bellinger knows better than anyone.  I look at it this way.  Tell the international community that we care about legitimacy — which is to say, that we care about their opinion in relation to our practices — and all of sudden we have handed other folks a rhetorical hold-up, to a greater or lesser degree.  Unsurprisingly, the price of their good opinion and their desire to exercise control over our actions goes up.  There is nothing special to this; it’s just standard bargaining theory.

On the other hand, ignore them altogether, and they — particularly, note, our allies, those who say that they are acting roughly within our shared sphere of values discourse, not the Chinese or the Russians — develop a set of norms that they then apply in such a way as to mark us as the outlier and the deviant.  Again, this is just drawn from any standard account of norm-negotiation; it’s not a statement of nefarious intent; it’s an acknowledgment that both we and our allies are invested in norms, and that we are not merely societies of narrow interests.  At its worst, developing a quite separate norm regime and then characterizing us as genuinely deviant from it might lead to arrest warrants issued for current or former US officials, and much distrust between sides.  It might also lead to places where even our allies might not want to go — putting themselves outside of the US security umbrella in particular matters that turn out to concern them a lot, such has having access to drones in Libya.

If the norm envelope is pushed hard enough, however, then our allies wind up depriving themselves of access to the weapon, which clearly they don’t want to do.  So they have reasons not to push too hard — both for fear of us simply ignoring them altogether (in effect withdrawing the acceptance that their opinion matters to the legitimacy of the activity) and because they want at least “parts” of it.

The best place to be, then, for both sides, is roughly in the middle that Bellinger stakes out.  (Note that nothing I’ve said here should be attributed to him; these are my views on the negotiation stakes.)  Meaning that we have reasons to talk with our allies at length and in detail, in private and public, to try and persuade them to our views, and to persuade them that genuflecting to their advocacy and NGO groups will be worse for them than accepting our space to act, insofar as we can give a plausible interpretation of law.  Plausibility is the central touchstone for international law in relations among states, finally; we and they don’t have to agree, only to agree that our several interpretations are within the ballpark of acceptability.  It might involve alterations of our practice; it might not.

This will never satisfy the non-governmental advocates or the academics, of course. They have no skin in the game and hence can always hold out for the most extreme position with only an indirect cost in credibility.  In the case of drones, in which even some of the advocates are belatedly realizing that the weapon is indeed more precise and sparing of civilians, ignoring the NGO advocates as profoundly mistaken has spared a human tragedy in collateral damage over the long run.  But the striking thing about the interstate negotiations among allies is that they don’t have to reach a conclusion — an agreement — and probably won’t.  An acceptance of the plausibility of each side’s position and an agreement to continue discussion around alternatives that are considered plausible is sufficient.

4 Responses

  1. “They have no skin in the game” This is a terrible slander to the Human Rights and Civil Libertarian communities. Many of these advocates have devoted their lives to this fight, and not in a just intellectual way. They fight for people. There is always a person at the end of the spear in national security law debates. It would behoove you to remember that and afford the people who have made tremendous sacrifices to fight for the powerless a little more respect.

  2. I think the better term is to refer back to Dred Scott “they have no [skin] that the [Executive] should respect.”  If all international law is is an effort to come up with plausible interpretations to get others to  acquiesce then one is confusing the words with the thing.  For example, the Sunday Dick Cheney “we kill Americans, therefore EIT’s should be OK” meme has no doubt some sense of plausibility to it.  Also, the Bellinger effort in the past Administration to modify the Geneva Conventions has some plausibility to it.  Bright people can always come up with plausible lines of reasoning. 

    It might be useful to remember the treaty obligation of pacta sunt servanda.

    I really feel the strong whiff of those enamored of extra-constitutional means in  this space.  I hope that people have looked at a piece I mentioned a while back in which former Acting General Counsel John Rizzo candidly called some of these drone attacks “murder.”  I am not in a position to say whether or not Awlaki was or was not murder, but that Rizzo who is “read in” termed some of these case THAT is deeply troubling to me and I hope to more than me out there.

    The question that I will now add to the discussion is based on Glenn Carle’s discussion of his new book “The Interrogator: An Education” last night on c-span: “Would the United States do these targeted killings if the person in the line of sight was white?”  Carle left the distinct impression that those subject to EIT’s would have been treated differently if they had been white.  As I think it would be if the person were white – whether or not American white.  As to those who will invoke Obama’s skin color, may I point out to you that the question is whether Obama would feel so free to do these things if the person in the line of sight was white.

    Nothing new under the sun.


  3. “On the other hand, ignore them altogether, and they — particularly, note, our allies, those who say that they are acting roughly within our shared sphere of values discourse, not the Chinese or the Russians — develop a set of norms that they then apply in such a way as to mark us as the outlier and the deviant.”

    The inherent problem with this proposition is that it is really a moot point, whether we allow countries (either allies or non-allies) to weigh in on our behavior. Developing the “set of norms” you refer to is unnecessary. There are no new norms needed. The rules are already in place, in well developed IHL and IHRL. There are no legal black holes. We (the US) are already the deviant.

    At this point in time: on the one hand, there is the rule law, and on the other hand, there is US action to combat its perception and secret definition of terrorism wherever and whenever it so pleases against whomever it chooses. These two concepts are, at this point in time, unfortunately mutually exclusive.

    In an unrelated point, I find it quite a striking statment (especially for your being an academic yourself) to claim here that this will “of course” never satisfy the academics and the activist ngo’s (?) which have “no skin in the game” as if this were really a game (See comment from Mark above). Unless, of course, you don’t really mean academics as such but rather the “advocacy communities, the UN human rights machinery, the NGOs, activist-academics, Euro-intellectuals” who “seek to seize the legal-political narrative” (your own classification in a 6 May Volokh post), which I think undermines your argumentation and is a rather frivolous and flippant way to address and at once dismiss those who do not agree with your personal views in matters of international law. 

    International legitimacy is gained through following international law. Quoting Obama from a 2007 speech: “We must neither retreat from the world nor try to bully it into submission – we must lead the world, by deed and example.” There needs to be public discourse among all parties about the consequences of not following the established rule of law and how the Obama administration, just as the previous administration and all the administrations to come, must be held to account for their words and deeds in matters of the fight against terrorism, not by manipulating the rules of law but by following them.

  4. Jessica – excellent!
    “The public accountability and legitimacy of these vital national security operations is strengthened to the extent that the public is informed and, through the political branches, part of the debate on the law of targeted killing.”
    Since there is no debate in public or in Congress, do you think the killing of Awlaki and Khan have zero public accountability and legitimacy right now?

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