Searching for an End Game

by Deborah Pearlstein

If you haven’t already seen it, it’s worth taking a look at this morning’s editorial in the New York Times about the Administration’s targeted killing program. The editorial follows on a series of articles in recent weeks, including the Times’ own report that the Administration was in a scramble pre-election to codify (in some form) internal processes for deciding when to pursue a targeting operation. Sounds to me like they’ve been flies on the wall at the terrific ongoing annual review of the field conference organized by the ABA’s Standing Committee for National Security Law. (Kind of old home week for U.S. national security law practitioners and scholars.) I can’t count the number of hallway chats I’ve encountered on the topic.

The Times’ bottom line:

Mr. Obama has acknowledged the need for a “legal architecture” to be put in place “to make sure that not only am I reined in but any president’s reined in.” Yet his administration has resisted legal efforts by The Times and the American Civil Liberties Union to make public its secret legal opinions on these killings. Once the rules are completed, they should be shown to a world skeptical of countries that use deadly force without explanation.

I’d certainly agree about the importance of disclosure here, starting first and foremost with disclosure of the legal theory supporting the Administration’s use of armed force in this context. The necessity of this seems past question to me; it seems impossible to reconcile the idea of democracy with the idea of secret law. The administration’s speeches on the topic have been illuminating and commendable. But as I’ve noted before (e.g. here) some of them raise more concerns about the application of the law than they resolve.

What’s troubled me more about the recent reports – beyond the already troubling notion that it was not the program itself but the possibility that someone else might be (and someday certainly will) be pulling the trigger that drove recent formalization efforts – is the absence of any apparent strategic calculus underlying the tactical decisions about targets. What exactly is the end game here? Or even the goal? It seems evident already that the current targeting program aims not only at Al Qaeda, by which I mean the organization actually responsible for the attacks of September 11, but also at some much deeper set of loosely (how?) associated radicals drawn from the truly bottomless pool of men who wish to do the United States or our broadly defined interests harm. Is the plan simply to define what we think counts as the kind of threat of force requiring the exercise of self-defense (in the form, sometimes, of targeting)? Or is the plan to which future presidents are meant to feel bound one that includes among targets members of all of the militant groups who congeal in weak states – Yemen, Mali, Somalia, etc. etc. etc. – and adopt the franchise name “Al Qaeda”?

One can find any number of security scholars around the halls these days who insist “we can’t kill our way out of this.” With “Al Qaeda 1.0” seemingly down to its last members, it sure would be useful to know what we now think “this” is.

http://opiniojuris.org/2012/11/30/searching-for-an-end-game/

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