The temptation is strong to write about the Supreme Court’s decisions this morning to deny review to the latest set of Guantanamo detainee cases to come before it. The denials of certiorari effectively let stand the decisions of the D.C. Circuit Court of Appeals, which has yet to find a detainee entitled to relief. But I’ll save the role of the courts discussion for a later post.
For now, I didn’t want to let go without comment the interesting set of commentaries that followed recent reports of President Obama’s intimate involvement in decisions about whom to target in U.S. global counterterrorism operations. David Luban’s thoughtful essay on the morality of targeted killing in the Boston Review last week is among the more balanced pieces I’ve come across on the topic, and unquestionably worth reading. Drawing on recent articles describing President Obama’s direct involvement in targeting decisions as informed in part by just war theory, Luban puts his finger on a truth about targeting that has largely been lost in the public debate: that targeted killing (by drones or otherwise) is sometimes moral (and legal) and sometimes not.
My one disappointment with David’s piece – and this is less a criticism of the piece than of his otherwise legitimate choice to focus on the moral substance of the law of war, rather than the applicability of that law per se – is that it felt like it was talking past one of the central sources of debate about contemporary targeting policy. Namely, that the legality (or not) of these operations turns in many (perhaps most) cases on one’s answer to the question whether an armed conflict exists within the meaning of international law. The Obama Administration, supported by authorizations by the U.S. Congress and interpretations by (at least) the federal courts of appeals, thinks there is a non-international armed conflict between the United States and Al Qaeda and “associated forces.” The rest of the world isn’t quite so sure, particularly when it comes to the still somewhat obscure definition of who counts as “associated forces.”
In part for this reason, Yale historian John Fabian Witt’s op-ed in today’s New York Times seems a useful companion read. Here’s his opening paragraph:
For all the heated back and forth over the acceleration of America’s targeted killings campaign, which took out Abu Yahya al-Libi, the No. 2 man in Al Qaeda, last week, the program’s lawfulness turns on one simple question: Are we at war? Try to answer that question, however, and the simplicity falls away. In the skies over Afghanistan and Pakistan, the basic distinction between war and peace — the foundation of laws of armed conflict that have been evolving for three centuries — is in collapse.
To be clear, Witt’s piece is not without problems as legal and policy analysis. Witt, for example, ignores the separate, occasional legal justification the administration has offered for at least some U.S. targeting operations, i.e. that these are one-off actions of national self-defense (as recognized in the UN Charter). Does that help or exacerbate the problem, in his view? More troubling, for him and perhaps more for the Times’ fact checkers, the piece claims that “the awesome technology of the armed drone is ours and ours alone only temporarily.” That sure is inconsistent with what I’ve read, both because we’ve already shared the technology with some of our allies, and because we’ve seen as much already from our enemies. See, e.g., here, here, here. In other words, we may still have the best and brightest; but the world in which countries other than the United States can use drones – and can rely on U.S. practice as customary example – is already here.
That said, I don’t want to detract too much from the important central claim. One of the reasons I think current U.S. targeting operations have been so controversial – and of concern even for those who, like me, agree with the view that an individual targeting operation may be lawful or not depending upon a rather large set of details – is that they rely so heavily on an unprecedentedly broad, and entirely unstable, definition of war. A “war” in which we have avoided specifically defining the enemy – so that “associated forces” may morph indefinitely, from Al Qaeda per se (which group the administration regularly insists is now at the very least substantially weakened), to groups that did not exist in their current name or organizational structure until years after the 2001 attacks were completed, and any such “associated” groups that may come to exist in the future, but as to whom no additional democratic debate over further authorization to use force is needed. (President Obama has recently highlighted the end of the wars in Iraq and (coming end in) Afghanistan; but there is a growing argument that the United States has now taken sides in a separate, non-international armed conflict – a third war of the decade, in Yemen. Mightn’t characterizing the United States’ active use of force in Yemen in that way make something of a political difference?) More, the theory of “armed conflict” that the United States uses in practice to defend the legality of many of our targeting operations relies on an understanding of war in which a body of morally exceptional law – a body of law created to apply solely in an exceptional, limited, and identifiable set of circumstances – can apply unexceptionally, alongside, and instead of the law we all grew up thinking was the moral norm. When “non-international armed conflict” is transnational in nature, we are “at war” as much in Afghanistan as Yemen as Somalia as New York as Iowa City. Yes, there are differences in how judgments like proportionality and necessity may be made in such varied settings. But those are war judgments. Not judgments about the applicable rule of law in peace.
We should be able to define – as a matter of history, morality, and law – a coherent difference between a state of war and a state of peace. This need not be a “third way,” whatever that means, as the op-ed suggests. Existing international law offers at least some useful criteria, not only the intensity of hostilities, but also the ability to name a particular state or organization as an enemy, and the existence of an enemy organization organized enough to itself be capable of (even if unwilling to) attending to the law of war. But it does need to be defined some way – and in a democracy, a relentlessly public way. Until we do that, it seems to me that those who find U.S. targeting policy understandable and wise, and those who find it indefensible and immoral, will keep talking past each other altogether.