Ethics, Law and Justifying Targeted Killings

The Obama Administration at War

Jack McDonald

• Publisher: Taylor & Francis
• Year: 2016
• Print ISBN: 9781138588790
• eBook ISBN: 9781317239574
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Military & Maritime History
• Index: Politics & International Relations

This book examines the normative debates around the American use of targeted killings.

It questions whether the Obama administration's defence of its use of targeted killings is cohesive or hypocritical. In doing so, the book departs from the disciplinary purpose of international law, constitutional law and the just war tradition and instead examines discipline-specific defences of targeted killings to identify their requisite normative principles in order to compare these norms across disciplines. The methodology used in this book means that it argues that targeted killings are only defensible as acts of war, but it also highlights the normative role of accountability and responsibility in this defence. In doing so, it offers an argument that the use of 'pattern of life' killings by the CIA falls outside the defence offered by the Obama administration, but that this same type of targeting could be used by the military due to differing standards/mechanisms of responsibility assignment in these organisations. The book thus provides a way of investigating contemporary wars where the conduct of war lacks the traditional hallmarks of conventional warfare. Furthermore, by drawing attention to differing normative concepts that underpin competing interpretations of law and morality, it provides a way of analysing contemporary political violence in an interdisciplinary fashion without seeking to displace single disciplinary study.

This book will be of much interest to students of military studies, ethics of war, foreign policy, international security and IR.

1
Justifying targeted killings

I suppose that the arguments are more often prudential than moral, but I don’t believe that the people sitting around the table are ‘realists’ who simply seize political opportunities or are driven by military necessities.

Michael Walzer¹

My starting point is to take what Bush says at face value, and inquire how defensible the positions that he espouses are.

Peter Singer²

I took an oath to preserve, protect, and defend the Constitution as Commander-in-Chief, and as a citizen, I know that we must never, ever, turn our back on its enduring principles for expedience sake. . . . But I can say with certainty that my administration . . . will do everything in our power to keep the American people safe.

President Obama³

Introduction

The use of targeted killings by the US government is highly contentious and raises many important legal and ethical questions. Central to this debate is the question of whether targeted killings are a legitimate means of disrupting terrorist networks. After 9/11, the George W. Bush administration argued that the transnational terrorist network responsible for the 9/11 attacks, al-Qaeda, posed a significant national security threat to the United States and its allies.⁴ This perception of threat is mirrored in the statements made by the Obama administration.⁵ Both the Bush and Obama administrations stated that they intended to eliminate al-Qaeda and associated terrorist networks. In doing so, both administrations have used a wide variety of counterterrorism methods. The Bush administration used targeted killings to attack al-Qaeda in a direct fashion, killing its operatives and network members with targeted killings in Afghanistan, Iraq, Pakistan, Somalia and Yemen.⁶ This failed to defeat al-Qaeda, although its operations were disrupted. In Leaderless Jihad, Marc Sageman argues that its leadership was ‘contained operationally’.⁷

In a set of key speeches the Obama administration has sought to portray itself as acting in accordance with the rule of law,⁸ as a contrast to the George W. Bush administration’s reshaping of legal parameters. Importantly the Obama administration, seeking to portray itself as an ethical alternative to the Bush administration, not only continued to use targeted killings, but also vastly increased their use against al-Qaeda and affiliates. This raises an important and highly contentious issue: the basis on which the US government internally legitimates the practice of targeted killings. The Obama administration has distanced itself from realist or amoral explanations for using force and instead explicitly seeks to legitimate the use of targeted killings as a legal and ethical means of using force against terrorist networks. These speeches, and the hidden legal rationale that they summarise, form a defence of targeted killings. This book examines the defence offered by the Obama administration for its use of targeted killings. In particular, I argue that a key feature of the Obama administration’s defence hinges on the ability of the executive branch of government to define persons as enemies.

What are targeted killings?

Targeted killings – the use of violence by the state directed at individuals – are rare relative to other forms of warfare, but nonetheless important. In his authoritative book on the law relevant to targeted killings, Nils Melzer defines targeted killings as occurring within two legal paradigms but accepts that most states’ targeted killing policies occur outside these legal regimes.⁹ The definition of targeted killings is important, as well as being an essentially contested concept.¹⁰ In this work, US ‘targeted killings’ refer to the activities that lead to the use of targeted killings by the US state against persons defined as enemies by the executive branch, with particular emphasis on such activities outside the context of US military activities in Iraq and Afghanistan. Many organisations – including the White House, the Central Intelligence Agency (CIA) and the Department of Defense – are involved in conducting targeted killings on behalf of the US state. One key feature of US targeted killings is that they have remilitarised the CIA. Many newspaper reports identify the CIA as using unmanned aerial vehicles (UAVs) to conduct targeted killings.¹¹ Despite its origins in World War II, the CIA, as George Tenet states, ‘was built to gather intelligence, not conduct wars’.¹² Tenet admits that the CIA had an armed Predator UAV in 2001 but does not describe the use of such weapons outside Afghanistan.¹³ Much is made of the bureaucratic overlap involved in US targeted killings, because it is often unclear whether the military or the CIA is in effective control of a given strike. Their use, however, derives from the legal authority afforded the executive branch of government by Congress in the form of the Authorization for the Use of Military Force (AUMF), and the president’s political role in the US political system.¹⁴ One implicit element of this is that the president has the right, as commander-in-chief, to define persons or organisations as enemies. In addition, this covers the use of targeted killings away from overt US military forces in Iraq and Afghanistan. But it is in these areas that the use of lethal force raises serious questions of legality and ethics, particularly when the threat posed by terrorists or militants is not immediately obvious to observers.

The first confirmed US targeted killing outside of obvious war zones was conducted against Ali Qaed Sinan al-Harithi in 2002. He was killed by missiles fired from a UAV controlled by the CIA, a fact proclaimed by the Bush administration.¹⁵ This killing posed a novel challenge and sparked considerable initial debate about its legality.¹⁶ In particular, the killing raised questions about whether targeting persons outside a defined battlefield was legal, whether such acts could be defined as acts of war and whether the use of UAVs to conduct such strikes was ethical or legal.

The Bush administration continued to use targeted killings from 2004 onwards in Pakistan and, later, in Yemen and Somalia. An overview of reported strikes is available from the Bureau of Investigative Journalism.¹⁷ Unlike the al-Harithi strike, these acts were not acknowledged. The use of these strikes was a semi-covert activity – while not acknowledged by the US government, the United States was the only state with the means and inclination to conduct them. What is clear from available evidence is that the Bush administration increased the use of targeted killings, and that the Obama administration increased the use of this method further, numbering more than one hundred in 2010. This provoked renewed criticism from long-time critics such as Mary Ellen O’Connell, as well as considerable further debate of this practice.¹⁸

The Obama administration increased the use of targeted killings, but it is often unclear what immediate purpose they serve. The US use of targeted killings, particularly in Pakistan, is linked to the wider conflict in Afghanistan. The tribal areas where these targeted killings occur border Afghanistan and, as such, form staging areas for insurgent forces who cross over to Afghanistan to fight. Targeted killings are used on both sides of the border. The two conflicts overlap; for example, the killing of Mullah Dadullah in Afghanistan was possible due to tracking insurgents in Pakistan.¹⁹ Pakistan presents a different set of legal challenges to Afghanistan or Iraq, because it is not a defined war zone, and US strikes in the country have largely gone unavowed.

As important as the expansion in the number of targeted killings, the Obama administration also conducted one that was qualitatively different from previous strikes – the killing of Anwar al-Awlaki. An American-Yemeni, al-Awlaki held dual citizenship, and therefore the Obama administration’s premeditated use of lethal force against him transgressed the normal constitutional restrictions on the use of force by the state against its citizens. The use of violence against US citizens is important, since in the US case targeted killings are only used beyond the territorial boundaries of the United States, or in US-controlled territories such as US military bases and other places of US extraterritorial authority. Targeted killings have been used in war zones in which US forces are present, such as Iraq and Afghanistan. Most of the people targeted and killed are not members of the US political community. However, the targeting and killing of Anwar al-Awlaki sparked legal cases in the United States and refocused the debate on the legality of targeted killings in constitutional law. This debate centres around the legitimacy of using targeted killings against US citizens.²⁰ Targeting citizens raises due process concerns, which refer to the respect that the US state must have for the legal rights of US citizens.²¹ The killing of citizens by the state is a tightly controlled practice in democratic societies, and the prospect of the US government killing al-Awlaki led to significant court cases, such as Al-Aulaqi v. Obama, which was dismissed by a district court and failed in its attempt to force the government to desist from targeting al-Awlaki.²²

The use of targeted killings represents a continuation of one of the key, contentious authorities used by the Bush administration – the ability to define persons as enemies and place them outside the US legal system. The Bush administration’s use of such discursive authority in Guantanamo Bay was one of the most contentious elements of its post-9/11 counterterrorism policy. Furthermore, targeted killings are by definition an extreme practice – the debates about due process for Guantanamo Bay detainees would matter little to the subject of a successful targeted killing. Therefore even though the legal controversy of targeted killings is intimately related to that of military detention, it is qualitatively different due to their intended lethality. For these reasons, the US use of targeted killings drew widespread criticism from a diverse array of commentators, journalists, lawyers, activists and academics during both the Bush and Obama administrations. Philip Alston, former UN Human Rights Council Special Rapporteur, is a trenchant critic of the practice,²³ as are academic critics such as Mary Ellen O’Connell,²⁴ Philip Dore,²⁵ Vincent-Joël Proulx²⁶ and Karl Meessen.²⁷ Leading journalists such as Glenn Greenwald²⁸ and Jeremy Scahill²⁹ are staunchly opposed to the practice. For most of the Bush administration, the executive remained silent on the issue. Initially a similar silence on the issue prevailed in the Obama administration. But in recent years, leading figures such as John Brennan,³⁰ Jeh Johnson,³¹ Leon Panetta,³² President Obama, Harold Koh³³ and Attorney General Eric Holder³⁴ have made public speeches and statements defending and supporting the activity.

The key problem with the targeted killings debate is its fractious nature, as it covers a number of highly contested areas of politics, law and ethics. Other countries that use targeted killings have also faced criticism. The most notable country to adopt targeted killing policies is Israel. Daniel Byman charts the development of these methods in his book, A High Price.³⁵ The Israeli use of targeted killings led to a lawsuit which resulted in a judgment from the Supreme Court of Israel (SCI) that legitimated the practice in the specific Israeli context.³⁶ Other states have used targeted killings; however, the scale of their use by both Israel and the United States dwarfs these other examples. The developing defence offered by the Obama administration relies on two key principles: (1) that the use of targeted killings is both legal and ethical, and (2) that their use relies on normal aspects of the president’s authority. In the words of John Brennan: ‘we will continue to work to safeguard this Nation and its citizens responsibly, adhering to the laws of this land and staying true to the values that define us as Americans’.³⁷ The second element of this defence, however, is that this is a normal element of the president’s authority – as the Obama administration has studiously worked to reverse the perceived overreach of presidential authority during the Bush administration. Whether this is actually true is open to question. Many critics point out that the standardisation of targeted killings under Obama is because there is more continuity than change...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• List of abbreviations
• Acknowledgements
• 1 Justifying targeted killings
• 2 American targeted killings
• 3 War and law enforcement
• 4 International law
• 5 Constitutional protections
• 6 Normative principles of war
• 7 Conclusion
• Bibliography
• Index