Over the past few weeks, I’ve written a few posts and articles about the importance of explaining and defending U.S. use of drones to conduct targeted killings. In a recent speech before the American Society of International Law, Secretary Clinton’s top lawyer — Harold Koh– did precisely that. After explaining how the use of drones clearly respects the principles of distinction and proportionality, he launched into the heart of his defense:
In U.S. operations against al Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum. …
[S]ome have suggested that the very use of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law….
[S]ome have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system involved, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict – such as pilotless aircraft or so-called smart bombs – so long as they are employed in conformity with applicable laws of war….
[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meeting. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law….
Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems – consistent with the applicable laws of war – for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination.’”
Overall, the argument unfolds exactly as one might expect. Most moderate observers will probably find it reasonable. However, critiques are likely to focus on two aspects of this defense:
First, the notion that the laws of war are the appropriate legal construct to apply to the struggle against terrorism is contested within legal circles. Yet, this probably isn’t a showstopper and not everyone will agree on this no matter what we do.
Second, the principle that the U.S. Government can waive due process to engage in targeted killings anywhere outside the United States, even against American citizens, is tenuous. Clearly, combatants are not entitled to any sort of legal proceeding. But then the important question becomes: how do we determine whether or not someone is a combatant?
Historically, even traitors in the United States have been entitled to due process before execution. In practice, however, we seem willing to discard this traditional interpretation of law in favor of a more pragmatic policy that waives certain legal impediments when apprehension of a possible combatant is unlikely and the risk of injury to American interests seems real. This strikes me as an entirely reasonable argument but it should still be an argument debated in the open.
Herein lies the problem – without being more transparent about the processes and protections that constrain the targeting process, we are ultimately mounting a weak defense of targeted killings. It seems we could still strike a better balance between protecting operational methods and establishing transparent norms and principles to guide future UAV use. After all, we’re not the only ones that have UAVs today and we won’t be in the future.
