The NYT on the CIA Targeted Killing Planning Post 9-11

I see that I’m quoted by Mark Mazzetti and Scott Shane in their New York Times article today, “CIA Had Plan to Assassinate Qaeda Leaders” (July 13, 2009). I’m trying hard to maintain radio silence and not blog, in order to let my shoulder heal up, but let me say something briefly about this.

First, I’m delighted, of course, that the CIA post 9-11 was formulating plans to try and kill Al Qaeda leaders wherever they might be; if they weren’t, I would certainly have a big question about what exactly the CIA value-added to national security is. Why would you have a CIA if they weren’t trying to figure out covert ops to kill Al Qaeda leaders after 9-11? As for the distinction between inserting small teams or using Predators, recall that the US only began using Predators as a weapons platform in a semi-improvised way after 9-11. The obvious tactic was small team insertion, and only when it became clear that Predators could work, did the US move to that strategy.

Second, as to the international law issues involved in targeting Al Qaeda leaders, I will simply refer you over to a new paper, soon to appear as a book chapter in a volume edited by Benjamin Wittes on reforming counterterrorism policy, on targeted killing. That paper has a particular point, however. It says that of course the US targeted killings of Al Qaeda terrorists is a legal act of self defense under international law. (You can get a free pdf download, here, at SSRN, “Targeted Killing in US Counterterrorism and Law.”)

The longer term question to which the paper mostly addresses itself is whether, in the face of withering international legal criticism, from UN special rapporteurs, human rights groups, academics, etc. – what we might call the international “soft law” crowd – the US, and specifically the Obama administration, will insist on the traditional doctrines of self defense, including against terrorists who find safe haven in states that are unwilling or unable to deal with them. The problem specifically for the Obama administration is that on the one hand it has – correctly in my view, for strategic, legal, and humanitarian reasons – embraced targeted killings via Predator strikes.

On the other hand, a lot of the administration’s international legal apparatus is highly sympathetic to the “soft law” position, and in other circumstances would like to embrace positions that, however noble in the abstract, would effectively rule out targeted killing as the US pursues them. And particularly rule them out in future situations in which Al Qaeda is not involved, in which there is no AUMF, no Security Council resolutions, etc., to point to.  It is important for the administration to keep in mind that the US will eventually face different terrorist enemies – there is, so to speak, life – and death – after Al Qaeda.

The paper is concerned with defending the US legal ‘space’ for targeted killing undertaken as self defense, but not necessarily within the context of an armed conflict as defined under international humanitarian law. If that seems like a mouthful, I’ll just refer you to the paper.

Finally, the US domestic law question of assassination. The title of the article uses the word ‘assassination’. This is unfortunate, not because it is not accurate in the sense we ordinarily use the term, but because US law and regulation contains a ban on “assassination.” Assassination in that specific legal sense is prohibited – but also not defined in US law or regulation. However, successive administrations dating from the 1980s have taken the position – e.g., the speech in 1989 to which the article refers – that a targeted killing is not (prohibited) “assassination” if it meets the requirements for self-defense under international law, including self defense against terrorists. As then-Dept of State legal advisor Abraham Sofaer put it, the assassination ban does not apply to otherwise “lawful killings undertaken in self defense against terrorists.” I don’t know if this is open access online; it was published in the Military Law Review in 1989, and Judge Sofaer and others have told me that it was vetted with DOD and the White House as being US policy and interpretations of law. I am not aware of anything that has overturned it as US interpretation of the US assassination ban.

Okay, I’m trying very hard not to blog at the moment and give my should some time to heal, so I am going to post this up and … Exeunt Left. Or possibly exit right.  (Cross posted at Volokh.)