Brennan’s Speech: A Response to Bobby Chesney

[Gabor Rona is the International Legal Director of Human Rights First. He first posted his thoughts  here about Monday’s counterterrorism speech by John Brennan.]

I’m grateful to Bobby Chesney, over at Lawfare, for taking the time to react to my post on the recent Brennan speech. As with so many of the more thoughtful defenses of U.S. counterterrorism policy, Bobby relies heavily on analogies to non-analogous facts and law to support conclusions that existing facts and applicable law do not support.

For example, he uses (a U.S. interpretation of) armed conflict detention authority to determine the rather distinct question of who may be extrajudicially killed. The “broad range of judges” Bobby refers to “who, in the context of the Guantanamo habeas cases, have repeatedly construed the AUMF to encompass al Qaeda as a whole rather than just the small number of al Qaeda members personally involved in the 9/11 plot” were, indeed, deciding habeas cases, they were not issuing death warrants. Bobby concedes that the AUMF requires a link to 9/11, but he says the link “can be supplied at the organizational rather than the individual level—and that is precisely how the AUMF has been interpreted for more than a decade now.” Yes, for detention, not for targeting. (Why the Bush administration chose the dumb label “enemy combatant” for anyone it wanted to detain is a different argument, but it might help explain why there’s so much improper conflation between detention and targeting in contemporary U.S. discussion. After all, what could be wrong with targeting an “enemy combatant?”)

Perhaps Bobby would respond that I’m mixing apples with oranges – that I’m talking about IHL while he’s talking about the AUMF.  And he’d be right. But unless he’s also claiming that any State is free to repeal the long-standing IHL principle of distinction and replace it with “if you can detain ‘em, you can kill ‘em,” the recourse to national law is irrelevant. (In fairness to the highly flawed interpretations of the AUMF by the judges of the D.C. Circuit, and by the administration, both have squashed the notion that international law is of no significance in interpreting the scope of that domestic law.)

Under IHL, you cannot kill people simply because they are “part of” or “associated with” the enemy, unless they are members of the enemy’s armed forces. For some, that brings us to the question of whether al Qaeda exists apart from its “armed forces.” It’s a legitimate question, but it skips a very significant step: determining the meaning of “membership” in, or being “part of” al Qaeda, let alone being “associated” with al Qaeda.

And this brings us to the second of Bobby’s uses of analogy: that between international armed conflict and non-international armed conflict, or more precisely, that between the targetability of “armed forces” and the targetability of others who may participate in hostilities but not be a part of the armed forces of a party to the conflict. In international armed conflict, the armed forces of a State are generally distinguishable from the civilian population. In non-international armed conflict, non-State parties to armed conflict are often indistinguishable from the civilian population and the fighting forces of those parties are often indistinguishable from their non-fighting elements. This is why IHL, which above all seeks to protect civilians from the ravages of war, places a heavier burden and stricter limitations on killing people outside of “armed forces” than within them. And this is why, on the subject of targeting, Bobby’s use of the international armed conflict concept of co-belligerency in reference to the non-international armed conflict situation of the Haqqani network’s role as an “associate force” is inapt. Likewise, it is simply wrong to assume that any “member” of al Qaeda (whatever that means) is targetable without reference to his or her conduct in connection with hostilities against the U.S.

Bobby’s reference to Yamamoto on the question of “personality” versus “signature” strikes also downplays the significance of the difference between, on the one hand, international armed conflict and State armed forces, and on the other hand, non-international armed conflict and non-State armed forces. It is a difference between two scenarios that IHL recognizes to create markedly different degrees of risk of error when applying the principle of distinction. The analogy between the IHL legitimacy of the millions of combatants killed in WW II in what today would be called “signature” rather than “personality” strikes and the targeting of individuals today because of their suspected membership in, or association with, an enemy, simply doesn’t work. The right amount of killing in war – if there can be said to be such a thing – especially contemporary war involving non-State actors, cannot depend on knowing the name of each targeted individual, but must depend on something more than membership in, or association with, the enemy party when the prospective target is not part of a distinct armed force. Detention standards and targeting standards applicable to armed forces have no place in this calculus.

I want to emphasize some slippery slope concerns here. In his recent speech, John Brennan noted that the U.S. is not alone in developing remote targeting technology. He also went to some lengths to show how reasonable and measured we are in deploying it. Of the “thousands” of people who are targetable, we choose to target only a small number, he said. Let’s assume for the moment, contrary to everything I’ve argued before, that every one of that small number is targetable under the laws of war. But isn’t it the assertion of the larger number that, by definition, will establish the outer limits of precedent for how a different U.S. administration, and perhaps more frighteningly, how other States and non-State actors, will construe targeting powers?

I recommend James Joyner’s article in the New Republic, Why the Obama Administration’s Drone War May Soon Reach a Tipping Point. Joyner recalls Donald Rumsfeld’s prescient question back in 2003: “Are we capturing, killing or deterring and dissuading more terrorists every day than the madrassas and the radical clerics are recruiting, training and deploying against us?” Joyner observes that Brennan “was at pains to insist that the Obama administration’s targeting policy is judicious enough to pass Rumsfeld’s test.” Let’s also give Brennan the benefit of the doubt, however unwarranted, that U.S. contemporary targeted killing policy keeps us on the right side of that equation. But it’s a horribly short-sighted equation. The more important question is whether the American vision of the outer limits of targeting powers articulated by Brennan is a net plus or minus to both national and international security, once it is inevitably adopted by others.

Brennan’s speech is no mere refinement. He has taken things to a new level. If the legitimate targets are indeed in the “thousands,” then we live in a world in which the U.S. is dangerously close to asserting the powers of war anywhere, and against any perceived threat, whether or not it chooses to use those powers. When others do follow suit, with less forbearance than that exercised by the U.S. today, and very possibly against Americans, the U.S. may well decide to shoot back, but it will be in no position to complain.