In reading Mary Ellen O'Connell's writings on targeted killing in preparation for our debate this weekend, I was struck by how granular her arguments generally are. She writes in great detail about the constituent legal questions that make up the fight over drones, and she stakes out uncompromising positions on them all. But she never, at least that I've seen, breaks through to higher ground and talks about the implications of what she is saying. In our debate, I wanted to zoom out, to force the discussion to a higher level of altitude and to force her to address the big picture. So I asked her a simple question: Is Barack Obama a serial killer?
The question was not meant as a rhetorical debating point but meant literally. As I read her views, I can think of no other word for a president who--if you buy her framework--has specifically authorized the killings of hundreds of people outside of the laws of armed conflict and ordered CIA personnel to commit "crimes" by using force outside of the military's command structure.
Mary Ellen's responses are remarkable. She doesn't quite say that Obama is a serial killer, but she comes incredibly close, and she certainly doesn't say that he isn't. Keep in mind, as you read this, that the ACLU and CCR in the Al Aulaqi case have submitted an expert affidavit from O'Connell, on which they rely as a legal authority for their position. The Al Aulaqi suit deals with a U.S. citizen, but, as you will see in the following quotations, nothing about her position depends on the target's citizenship.
I would be very interested in the reaction to these comments from the ACLU and CCR.
The first exchange takes place at the outset of the debate. Mary Ellen had just explained her general view of the subject. And I had given a few sentences of introductory remarks, in which I had acknowledged not being an international law scholar but a journalist who sometimes "dabbles" in these subjects. I then said the following:
If you take what Mary Ellen just said at face value--that is, to deny that the use of force is ever appropriate . . . outside of an immediate zone of armed conflict--and you define armed conflict very narrowly, as she does, and you further deny, as she also does, that it is ever appropriate for CIA personnel to engage in lethal force and to participate in these sort of activities, there is a conclusion that follows from that, I think ineluctably. And that conclusion is that the President of the United States is a serial killer. And I don’t know that that’s an avoidable conclusion. I think the conclusion would have to be that this is not an authorized use of force. . . . It’s not confined to the territory or boundaries of an armed conflict, and it’s being done by personnel who aren’t necessarily authorized, ever, to use force, even in armed conflict--all under the specific orders of the President of the United States. Who—let’s go a step further—campaigned on a promise to escalate the sort of meager serial killing that his predecessor was engaged in. Who, furthermore, criticized his opponent in the campaign for being insufficiently committed to serial killing and proceeded to get into office and do precisely what he promised, which is to escalate the existing, sort of low-grade serial killing that was going on around the world.
I think under Mary Ellen’s theory of the law the president is really no different from Ted Bundy, or to put it in fictional terms, Hannibal Lecter. And Harold Koh, who [the moderator had earlier] described as revered by many in the room, would clearly be guilty of conspiracy to aid and abet serial killing, . . . conspiracy to serial kill. I’m not sure what the lawful term of art would be for that. And so my question, which I mean sort of rhetorically and partly I’d love to hear Mary Ellen address, is what is the difference between the president and a serial killer, or just a garden variety serial killer? And number two, if in fact, I’m not misunderstanding her legal argument, why are we having this sort of very staid discussion about . . . these sort of constituent components of this gestalt, awful fact and why are we not talking about impeaching and removing the president and putting him on trial for myriad--hundreds and hundreds--of killings around the world that are unlawful? Now, I would love to hear Mary Ellen address that, but let me step back before I . . . yield this and say, I think the president is not a serial killer, and I think Harold Koh is not guilty of conspiracy to aid and abet serial killing by the president. And if you believe that, then there simply has to be something--at least something, and I would submit several things--defective about the underlying legal theory.
Mary Ellen responds--or, to be more precise, declines to respond--with a lengthy speech, in which she takes me to task for "dabbling" in an area that was deadly serious. She talks about her husband, who is a decorated combat veteran. She attacks the use of the word "lawfare" in the name of this blog, saying that "those who do not know [international] law, who simply dabble in it, who like to have websites that talk about lawfare as if using the law and supporting the law is the same thing as using lethal force in warfare should not be engaged in that." She accuses me of making ad hominem arguments and of trying to "to make this zero-sum argument, as if, if you can’t find a way to kill individuals under the law of our conflict, you can do nothing." And she criticizes Koh for his speech this year at ASIL. But she pointedly does not address the question of whether the President under her understanding of the law is meaningfully distinguishable from Ted Bundy and why, if he isn't, she isn't calling for his impeachment. So later in the debate, I raise the question again:
[W]hen you say that . . . these killings take place outside the zone of armed conflict, maybe by the DOD, maybe by CIA, maybe by some combination of the two [and that] they’re not . . . lawful under the law of armed conflict, how should we understand what they are, in your view?
Here is Mary Ellen's response in its entirety. I think it is amenable to no interpretation other than that she is accusing Obama of serial murders but doesn't wish to use those words:
Ben obviously wants me to address whether . . . according to, using his terms, the president is a serial killer or not, because this obviously will, you know, the president is popular. Harold Koh is popular, and this will somehow undermine the argument that we should really be following the law here. So let’s talk about that.
I’m as disappointed as anyone that we don’t have a reversal of certain Bush administration policies that developed after 9/11. I heard many of my colleagues who were very willing to say that President Bush had authorized torture, and that this should be ended, and that President Bush and other high members of his administration should be prosecuted for that. I’m afraid that it’s only acceptable that we hold President Obama to the same high standard of compliance with international law, and I think it is actually unfortunate that in the international legal community we’ve been slow to do that. I think it’s understandable. We were told during the campaign that the Global War on Terror was over. We expected, because Harold Koh had been such an outspoken opponent of lawless policies by the Bush administration, that he would take the lead. We have not seen that yet. I think we will see it. I think as the information gets out, as we get good arguments, as our colleagues around the world—and I just came from London, where I gave several talks on this issue and there is still disbelief in many parts of the world. President Obama is very popular. But the statistics, the information about the drone attacks in four countries right now, three in which the United States is not participating in armed conflict hostilities, as well as the details that are coming through out of the al-Aulaqi case. There is real disbelief that our president would be willing to send a hit team or even have American citizens on a hit list for killing instead of doing what the British had long maintained to be the way to suppress, repress, terrorism, which they did successfully with regard to the IRA, which did have worldwide connections, which was a violent organization with ties to the PLO that had state support, a very serious organization. And through a combination of law enforcement—sometimes practiced by the military—but, under law enforcement rules as enforced by the European Court of Human Rights, and as a result of engaging a political process, today there is peace in Northern Ireland.
We, nine years after the 9/11 attacks, don’t see the same kind of success. So, yes, I am very disturbed. I am very sorry. I am willing to say that so far the United States has engaged in—our leaders, and their lawyers—have been willing to engage in unlawful killing (italics added).
Why is she unwilling to use the term "murder"? Not, she makes clear later, because she thinks it inapplicable or because she would rule out prosecuting Obama for his "unlawful killing":
Why do I not say “murder”? This is a term that is used for criminal prosecution, persons who have had a chance to have a trial, to make their defense and so forth. I don’t throw that term around lightly. I do want to see the United States get into compliance after the tragic years in which we were using torture in this country and there were no prosecutions. I do not hold out hope that there will be prosecutions for extrajudicial killing. My more immediate concern and purpose is that I hope all of us will leave this room more committed to act. It’s to stop future killing. We know that many countries have had their leadership commit very serious violations of international law with no accountability, the human rights community, international law community is committed to trying to change that, but we’ve had a setback over these last years and I don’t expect it to happen. So I don’t see any real purpose in arguing about those matters. I’m interested in going forward and getting our country into compliance with international law, and we can talk about accountability later.
There you have it. The ACLU's and CCR's expert witness, in response to the direct question of whether Obama is different from Ted Bundy and whether Harold Koh is a conspirator to commit murders declines to use the words "serial killing" or "murder," because they haven't been convicted yet, but she freely accuses them of being "willing to engage in unlawful killing." While she declines to call for their prosecution now, she declines only because she doesn't think it's realistic, and she's happy, in any event, to "talk about accountability later."