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Clarification from Tom Malinowski

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Thursday, November 4, 2010 at 3:23 PM

When last we left the question of targeted killings, Kevin Jon Heller and I were arguing over how to read Tom Malinowski’s statement on behalf of Human Rights Watch on the subject. Considering the question a matter of original understanding, I referred it to Tom (If only asking Madison and Hamilton what they meant were as easy!) for clarification. He writes back with characteristic good humor, as follows. I will comment on this after I have had a chance to digest and reflect on it:

 If this were “Annie Hall,” I would now jump out and say:  “Ben Wittes knows nothing about my work. How he got to be a senior fellow in anything is totally amazing.”  Ahh, if only life were like that!  But in this case, it would certainly not be fair.

Noting the title of Ben’s post, I could also take issue with his “originalist” interpretation of my comments.  Ben, it has been days since I sent you that post!  Our society has undergone enormous changes since then: a new Yemeni bomb plot, a new Congress, a new World Series champion.  To paraphrase Justice Holmes, the meaning of my words must be considered “in the light of our whole experience and not merely in that of what was said a week ago.”

Or, I could just pocket Ben’s statement that all these important legal questions “ultimately turn on what Tom really means.” And then retreat to my cave while scholars debate the significance of my words.  That would be fun, actually.

That said, let me see if I can further clarify my views on a couple of the issues raised in this exchange.

With respect to the argument that the U.S. is involved in a “non-international” (meaning non-intergovernmental) armed conflict in Yemen, triggering the application of the laws of war, Ben is right that we have not contested it.  Nor have we asserted it.  This is, as they say, a hard question. We do believe, however, that it is a question within the scope of judicial review, and in that sense we agree with the ACLU/CCR suit, and with Kevin’s post here.

How far the United States extends the concept of armed conflict matters a great deal.  Extended too far, the concept would allow any U.S. president–and the leader of any other country–to evade the most fundamental restrictions on the power to kill and detain; it would, indeed, allow governments to target anyone for attack anywhere under the guise of waging a global war. U.S. courts have already recognized that when the government applies war rules on a recognizable battlefield, a degree of judicial deference to the executive is appropriate; when the government seeks to extend them to places where the obvious indicia of a battlefield are missing, that broad judgment should be open to independent review.

Now, if someone like al Aulaqi were actively participating in a non-international armed conflict, I still think that for prudential reasons the targeted killing of such a person should take into account whether it is possible to arrest him or to mitigate the threat in any other way. I believe that in part for the reason Ben states: We would not want the U.S. or any other country bombing apartment buildings in London or Paris just because an al Qaeda figure was staying in them, even if they could concoct some theory of military necessity, such as the non-cooperation of local authorities. I also believe it for a reason Ben would likely dispute–that traditional law enforcement tools are more effective in the fight against al Qaeda because they help to delegitimize terrorists as criminals rather than elevating them to the status of warriors.  But I’m glad that Ben and I agree on the bottom line here.

If, on the other hand, the situation involving al Aulaqi were only governed by international human rights law, and not the laws of war, then, as Kevin points out, that would not necessarily preclude targeted killing if the threat to life were imminent and there were no other alternative.  And here I don’t think that the “imminence” rule would require the U.S. to show that an al Qaeda planner was literally on his way to the airport to put a bomb on a plane to Chicago before launching a strike. But it would require an individualized determination that the target is actively involved in planning future attacks (as against simply having been involved in terrorism in the past).  And of course, that he is in a place, of which there are thankfully few in the world, that is truly beyond the reach of law enforcement.

Of the arguments I made in my post, the most important is one with which I think all three of us agree:  that the Obama administration should be clearer about where it draws the line between lawful and unlawful targeted killings. This is an enormously consequential matter. Barack Obama is not the last president who will face these questions, and his successors may not all be former professors of constitutional law. As I suggested in my post, the United States is also not the only country with the capacity and motivation to pursue perceived enemies beyond its borders. More and more countries will eventually possess drone technology, on top of the poisoned tea and car bombs they already have. More and more may feel entitled, by virtue of their size and growing global influence, to engage in military action on a global scale. What truly matters in such a world is not what Tom Malinowski believes the law to be (as flattered as he may be by this debate), but what the United States government believes the law to be. By asserting that it is acting in accordance with international law, the U.S. is setting an example for the rest of the world. What does it want that example to be?

The reluctance of U.S. officials to lay out their sense of where the legal limits lie undoubtedly is motivated by the traditional bureaucratic impulse to keep as many options open as possible. The stated reason–that the drone program is too secret and sensitive for the justification to be laid out in full–makes no sense to me.  A fuller explanation would not require them to admit the obvious–that the U.S. is carrying out drone strikes on other countries’ sovereign territory; all they would need to do is to clarify the principles that “theoretically” govern such attacks on combatants outside a traditional war zone. Nor would Al Qaeda learn anything of operational value if the administration were to explain with greater clarity and precision its views on the issues we are discussing in this exchange.

When I hear U.S. officials make their usual arguments about secrecy, I sometimes want to say:  “What are you afraid of–that it would be lights out for the Free World if enemy lawyers got a hold of your legal reasoning?” Indeed, what they ought to be afraid of is that those “enemy lawyers” will assume the U.S. believes there are no limits.  And advise their governments accordingly.

So if the ACLU/CCR effort compels the administration to be clearer, it will have served a purpose all of us seek. But it shouldn’t take a lawsuit. All that should be required is a mature sense of where the U.S. national interest lies.