So Professor O’Connell, Tell Us What You Really Think of the Legality of Targeted Killing

by Julian Ku

I leave it to Ken and others to weigh in on US Attorney General Holder’s speech today at Northwestern.  I did want to point out one early reaction from Professor Mary Ellen O’Connell of Notre Dame, who didn’t exactly pull punches in her assessment of the Obama Administration’s legal arguments.

University of Notre Dame international law expert Mary Ellen O’Connell also said the memo should be released to reveal more about the administration’s position.

“From what we know so far, the memo is highly reminiscent of the torture memos written during the Bush administration, in which irrelevant U.S. cases and statutes are cited in order to give the CIA a green light,” she said. “The relevant international law does not permit targeted killing far from battle zones.”

The memo in question has not been released. I myself accept there might be similarities between these memos and the “torture” memos, although I am guessing from Holder’s speech (and Marty Lederman’s interventions here) that the basis for the targeted killings are somewhat narrower.  Still, by invoking the Bush Administration “torture” memos, O’Connell is not trying to give a compliment to David Barron, Marty Lederman, and Harold Koh (all of whom presumably had some role in developing this legal memo).

Whether or not they release the memo, I think the way the Obama Administration has handled the legality of targeted killings issue has helped them with respect to both popular and elite opinion. By offering more or less public legal defenses, they avoid the charge that there is a dark conspiracy somewhere.  Jane Mayer has left them alone.  The public is with them.  A lesson, perhaps, for the Romney Administration?

http://opiniojuris.org/2012/03/05/so-professor-oconnell-tell-us-what-you-really-think-of-the-legality-of-targeted-killing/

4 Responses

  1. Response… Yes, I would like to see the official memoranda but as to “far from the battle zones,” where does that leave the killing of the Japanese admiral cited?  Was he killed “close” to a battle zone? If a terrorist camp is not a “battle zone,” what might be?  If the terrorists uses it as a base of operations? Is non-targeted attacks on such bases by used of conventional force okay?

  2. As long as I can’t sue U.S. in any international court for killing me, killing me remains illegal. Is that not obvious?

  3. Response…  Do many people sue in court for others killing them? How does one get a process server in the hereafter?

    If the spouse of the U.S. citizen had the ability to sue in a domestic court would that be okay?

    I think the Administration is doing a better job defending themselves here, though they aren’t be totally aboveboard about it. The “dark conspiracy” bit sounds a tad sarcastic, but it’s true. Jack Goldsmith made the point too — a little honey helps the medicine go down and all that.

    I think referencing the torture memoranda is a bit much and too much, forgive me, water is being carried by using that metaphor. The net result really is that the last administration is really basically the same. I don’t see it.  I think this one did some things wrong. But, this continual attempt to link the two, in fact the Glenn Greenwald like “they are worse” doesn’t do it for me.

    I lived thru the last administration. It was worse. People should try to stop eliding past that.
     
     

  4. Response…
    From the international law perspective, Holder rightly impliedly addressed self-defense targeting under UN art. 51 and use of law of war principles by analogy with respect to self-defense targetings.  He also used the Obama Administration’s we are at “war” with a terrorist organization approach, which is not possible under international law because al Qaeda never met the criteria for insurgency status, much less belligerent status.  But we do not have to be at “war” with al Qaeda to lawfully use force to target those who are DPAA (directly participating in armed attacks) against the U.S., its embassies, its military, and/or other nationals abroad.  See http://ssrn.com/abstract=1520717
    Holder has confirmed many of the point made in the article on-line at SSRN (and contrary to Mary Ellen’s claims addressed therein), but he could have expressly stated that we do not need the consent of the state from which non-state actor armed attacks are emananting — but he did not say that we needed their consent, just that “sovereignty” would be part of the consideration and that in some cases, for example, the foreign state may be unable or unwilling to stop the non-state actor armed attacks — which is not a limitation under international law with respect to the right of self-defense under the U.N. Charter.  See also http://ssrn.com/abstract=1718548
    Holder correctly noted that U.S. citizenship does not provide immunity from lawful targeting under the U.S. Const. or int’l law.

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