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Reflections on Malinowski’s Clarification

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Saturday, November 6, 2010 at 7:03 PM

I promised I would offer thoughts on Tom Malinowski’s latest missive after I had a chance to digest and reflect on it. Since then, I have been mostly digesting and reflecting on Justice Breyer’s new book, on which I will be moderating a discussion at Brookings on Wednesday. But let it not be said that my digestion cannot multi-task. For whatever they are worth, here are my brief thoughts on Tom’s clarification.

In my earlier post arguing that Human Rights Watch was staking out ground distinct from that of the ACLU and CCR, I made three basic points (all of them tentative) in response to Kevin Jon Heller’s earlier objections. I want to focus here on Tom’s response to two of them:

First, I argued that Tom’s sense of how imminent a threat needs to be before a targeted killing can be justified outside of an armed conflict is only modestly, not dramatically, different from my own relatively broad and non-temporal sense. Without saying that HRW agrees with me, Tom’s statement clearly reflects, in fact, a lot of common ground with my view:

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.

I have, to put it simply, no fundamental argument with this formulation. While I would articulate the matter a little differently and I expect Tom and I might disagree about some issues in the application of these ideas to individual cases, I think the differences are very modest indeed. Outside of the context of a non-international armed conflict (NIAC), we both agree that targeting an individual can be lawful if that individual is (1) beyond the reach of law enforcement, because he is (2)  in an ungoverned space, and (3) poses a lethal threat that, absent some intervention, will result in deaths or grave harms.

Second, I argued that HRW, in contrast to the ACLU/CCR position, did not seem to be denying that there, in fact, exists a NIAC that permits the targeting of some individuals in Yemen irrespective of imminence. On this point, Tom neither confirms nor denies:

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.

Tom does clarify that he believes this question justiciable, which I do not, so there is clearly a difference there. But even in its equivocation on the presence of an armed conflict in Yemen, HRW is conspicuously not embracing the full ACLU/CCR position here (see pp. 32-39 of their Al Aulaqi brief), which relies on the absence of a NIAC in Yemen as a key feature of its argument that targeting Al Aulaqi would be unlawful.

In short, I think you don’t have to read too deeply between the lines here to see that HRW is staking out quite independent and quite moderate ground. It is tonally very different from my view, to be sure, and there are substantive differences as well. But at the end of the day, the similarities significantly eclipse the differences: HRW does not deny that there may be authority under the laws of war to target people in Yemen; it does not deny that absent such authority under the laws of war, targeting them may be lawful anyway in the event of an imminent threat; and it takes a not-strictly-temporal view of how one should judge the imminence of any supposed threat. To reiterate my original point, I think there’s a lot of common ground here, and I find it enormously encouraging.

All jokes aside–and there have been a lot of them in this exchange–my sincere thanks to both Tom and Kevin for what has been a truly enlightening and enjoyable engagement.