I have been thinking a lot over the last couple of days about Tom Malinowski’s statement in response to my post about the Lord’s Resistance Army (LRA) and drone strikes in Yemen. The more I think about it, the more I admire it. Notwithstanding its occasional digs at me, it is a morally serious statement that reflects a very serious grappling with difficult issues. It is exactly the sort of grappling that human rights groups often fail to do. And since I spend a lot of time criticizing that failure, I want to draw some attention to what it looks like when a human rights group thinks in a holistic fashion about a difficult problem where human rights values do not always align.
Among other things, Tom’s statement provides a real basis for describing some common ground on drones. Human Rights Watch here has sketched out a position quite distinct from that of the ACLU and CCR, and that is worth a lot. Indeed, in many ways, HRW’s position is closer to mine than it is the litigating position taken by the ACLU and CCR in Al Aulaqi. So in addition to admiring the seriousness of Tom’s statement, I am very pleased to learn that the distance between us is actually narrow.
Before laying this point out, let me briefly address Tom’s comments regarding the LRA and the possibility of U.S. military involvement in Central Africa. As I said in my original post, I did not mean to ridicule HRW’s proposal at all (though I did quote at length someone who was ridiculing it and observed that it had prompted ridicule). I am not dismissive of humanitarian interventions. I find them morally compelling much of the time and wish they were practical more of the time. While I doubt that what HRW is proposing here is politically plausible, I am by no means an expert in Central Africa. If there is a way to do it with a minimal presence and risk to U.S. forces and interests, as Tom suggests, I do not in any way dismiss that.
More fundamentally, I am delighted to see that the HRW has given a clear and very constructive answer to my question about intermediate uses of force. I asked whether HRW would support taking out Joseph Kony with a Predator if that were possible. Tom’s answer? “We see this as a law enforcement operation, in the sense that the primary objective should be to capture Kony and others wanted by the ICC and deliver them to justice. We also recognize that lethal force is sometimes necessary in law enforcement operations when there is an imminent threat to life, and that this is a plausible outcome, given the nature of this group and of the terrain where it hides.”
Now I wouldn’t frame this as a law enforcement operation, but that’s quibbling over details. Though I question the realism of the project, it’s worth emphasizing that both Tom and I think it is legally and morally appropriate to use force to capture or if need be to kill Joseph Kony in the name of justice and civilian protection.
Now consider Yemen. Here Tom’s statement is remarkable: “Our position on targeted killing is that its use can be legally justified so long as it is limited to situations involving a combatant on a genuine battlefield or its equivalent beyond the reach of law enforcement, or in a law enforcement situation when the threat to life is imminent and there is no alternative. A case could be made that these conditions have been at times met in Yemen–for example, if there is credible evidence that a targeted individual is planning attacks on the U.S., the threat is imminent, and he or she is in a place where an arrest operation would be impossible.” In such situations, Tom writes, drones may be the most discriminating–and therefore most desirable–option.
I suspect, though I don’t know, that there is daylight between our positions here. Tom and I likely have a modestly different sense of what imminence means, at a guess. And I am persuaded by Ken Anderson’s arguments, and the administration’s, that self-defense can under some circumstances provide grounds for targeted killing independent of any existing armed conflict or combatancy. Tom does not address that issue and, if I had to guess, I suspect he would probably not embrace this position. And while we both feel strongly that the government should say more in public about the limits the law imposes on its authority here, I suspect that Tom might mean something more dramatic here than I do.
That said, the much more striking point than any difference between us is the common ground: Our framework here is virtually identical. To wit, we both believe targeted killings outside of the battle space can be appropriate and lawful in situations in which safe havens in ungoverned spaces make law enforcement options unavailable and the government is left with no other means of reaching military enemies of the United States actively plotting attacks. All the rest is commentary. And while the commentary is important–I think Tom and I would both agree on the importance of whatever differences remain–it is critical to remember which is the commentary and which is the text.