08 Oct Targeted Killings and Incentives
I’ve posted lots here about targeted killing, and written about it for publication, as well. I’ll be on NPR’s All Things Considered today, in a story by correspondent Ari Shapiro, talking about targeted killings in relation to detention and interrogation. (Now that I’ve seen the story, I see with pleasure that it also quotes Matthew Waxman, Vijay Padmanabhan, John Bellinger, and Monica Hakimi. Cool lineup.) My point is pretty straightforward – uncertainties in detention and interrogation policies, particularly for mid-level operatives in the CIA and intelligence agencies, partly created by the courts and partly created by other actors such as DOJ, have increased the incentives to kill rather than capture. Not always by use of Predator missiles, as the Somalia raid using helicopters firing on a vehicle a few weeks ago pointed up, but an incentive to kill from a distance rather than seek to capture and interrogate for intelligence value. I haven’t heard the story, which was pre-taped, but I have a high opinion of Ari Shapiro as a journalist, and I’m sure that apart from whatever little bit is my part of the story, there’s good stuff there. But anyway there’s a link to it and a snippet at the NPR blog. Plus you can also read a set of very different views from mine in the excellent informal discussion over at EJILTalk! (Cross-posted to VC and CTLab.)
“increased the incentives to kill rather than capture” has things backward. Whether using a Predator or manned aircraft, the kill option is simple, cheap, and safe. To capture requires putting men on the ground in harm’s way, and that is a vastly more complicated process. The changed environment has not increased the incentive to kill, it has simply eliminated the incentive to mount a more complicated and dangerous operation to capture. At this point, the enemy knows the limits of interrogation, has no reason to cooperate, and becomes a long term liability in custody.
But what this view ignores is the fact that CIA officers are not lawful combatants — if a CIA agent kills anyone they have committed murder. So the argument distills down to saying that because of a fear of prosecution on the part of CIA officers, they’d rather commit murder than commit assault or torture. Odd, isn’t it? Of course the reality is that they aren’t concerned about the law per se, but only about getting punished, and so they’ll take the relatively remote risk of a foreign government getting their hands on them and prosecuting them for murder – which to use a past CIA director’s parlance, would be a slam dunk case, but not the increased likelihood of a U.S. prosecution for a lesser offense in which conviction would be problematic if they were acting within the scope of a legal justification provided by CIA or DOJ lawyers. I can understand how CIA operators would think that way, but how is it that government lawyers, who are supposed to care about the law and not merely the probability of prosecution, see no problem with CIA officers committing murder yet agonize over permissible limits on interrogation? Particularly when the military has the same UAV capability as the… Read more »
Under the guidance from the ICRC, members of the organized armed forces of a non-state party to a non-international armed conflict may be lawfully targeted if they participate in continuous combat operations. This plausibly describes the status of the Taliban on both sides of the border in Afghanistan and Pakistan. The key ICRC point, however, is that such persons are not civilians protected from attack by IHL. If the CIA attacks and kills someone satisfying these rules in Pakistan, then they may have committed murder according to the domestic laws of Pakistan, but according to the ICRC they have not committed murder under international law because IHL only protects civilians and is silent about the mechanisms by which combatants are killed. The CIA agent may not be protected by combatant immunity, but that simply means that he has no protection under international law if he is captured by the enemy. There is no requirement that an American have combatant immunity in order to kill an enemy combatant in an armed conflict. If there were, we would have a lot of trouble explaining all those guys on Bunker Hill and at Concord and Lexington who murdered British soldiers, and why we… Read more »
I suspect Howard is correct in implying that those engaged in the attacks are authorized by U.S. law to do so. International humanitarian law only withholds combatant immunity. It does not impose or require punishment of such individuals. Punishment for murder by an unlawful combatant occurs only under an applicable domestic/municipal law. By virtue of the later-in-time rule in the U.S. (later municipal law supersedes inconsistent earlier international law), any such domestic authorization controls in U.S. courts. Thus, the decision is not whether to commit murder (under U.S. law) or attempt indefinite detention that U.S. courts might not permit (I am unwilling to say or imply that there might be torture or other inhuman treatment involved in such detention). It is between a “justified” killing in U.S. law or the detention of someone the courts might later order released. I will here express no opinion regarding the wisdom of this policy or approach. I note that the Military Commissions Act defines the offense of ‘murder in violation of the law of war’ for our enemies under similar circumstances. (I have elsewhere argued that this codifies a municipal, common law offense dating back to the Lieber Code that is then applied extraterritorially.) However, the MCA… Read more »
Howard and John are of course correct that when I speak of CIA agents committing murder, I am referring to the lack of belligerent immunity and that this would be murder under the domestic law of the nations on whose territory the offenses took place, or under the law of the country whose nationals were killed if its statutes incorporated the passive personality principle. (Similarly, any detentions by the CIA abroad would be violations of local foreign law, constituting kidnapping, unlawful restraint, assault, etc.). But, as John notes, the U.S. Government takes the view in its Guantanmo prosecutions that when an unlawful belligerent kills anyone, whether a protected person or a combatant (e.g., Omar Khadr throwing a hand grenade at an attacking U.S. solider), it is murder in violation of the law of war. I think John and I agree that the U.S. is wrong on this point as a matter of international law, but so long as this is the official U.S. interpretation of the law, then it ought to be applied to limit U.S. actions as well. The law must be the same for participants on either side of an armed conflict, otherwise it is not law at all but merely “victor’s justice.” And although… Read more »
The military judge in the Hamdan MCA case ruled that since the laws of war apply only to combatants not to civilians, the only possible meaning of “murder in violation of the laws of war” must be the unlawful killing of noncombatants by soldiers. As far as I know, that is the only judicial decision about what the phrase means so far. Last time I looked, when an interpretation presented by procecutors contradicts a finding by a judge, it is the judge’s decision that sets law, and the prosecutor’s arguments do not establish “the official U.S. interpretation of the law”. A sensible response would be to dismiss the current charges against Khadr and admit that the MCA is hopelessly defective in its wording. Probably the worst possible response would be to embrace the MCA and try to turn it into some tool to create a massive new body of domestic criminal law. Fortunately, the MCA limits its application to unlawful alien combatants (excluding US citizens fighting for the enemy, but also everyone else). So it provides no basis of legal action against the CIA. The killing of a combatant by a non-privileged person is not a “War Crime”. It is not even… Read more »
Obviously this is a form of “victor’s justice”. When France was liberated, we didn’t round up all the French Resistance fighters and charge them with murder for killing German soldiers.
Howard, My article explained why it was impossible to support Hamdan’s military judge’s instruction on the charge. It made no sense with regard to the context of the MCA and this offense, and was contrary to MCA commentary. I then explained the theoretical origins of the charge, a common law approach to punishing all law of war violations (conduct for which the law of war either removed or did not provide combatant immunity). This approach was maintained in the Articles of War (held to implement the “common law” of military tribunals in both Quirin and Yamashita), and later preserved in Arts. 18 and 21 of the UCMJ. As Quirin and Yamashita were decided post-Erie, this was clearly federal common law that survived Erie, even if only by statutory recognition. Additionally, this entire body of municipal common law developed before there was an international body of “war crimes.” Nothing in current IHL prohibits its continued application, even extraterritorially, except possibly the nullum crimen, nulla poena sine lege (ex post facto) principle when punishment is not for a “war crime.” (I have another article in progress that addresses this.) Dave is also right regarding the jurisdictional scope (both personal and subject matter) of UCMJ, Art.… Read more »