Targeted Killing: Drones

Mary Ellen O'Connell is At It Again

By Benjamin Wittes
Saturday, October 1, 2011, 4:46 PM

Once again, she is accusing Barack Obama of serious crimes. And once again, she refuses to say what she's really saying. In this article on she calls the Al Aulaqi killing "illegal, immoral, and dangerous." She says that "The president and his officials know that it is unlawful to kill persons in this way outside of armed conflict hostilities." And she accuses them of manufacturing "a plausible-sounding legal cover story" to paper over "the legality of intentionally killing of suspected terrorists far from any actual armed conflict hostilities."

And once again, she is avoiding certain words that ought to flow from her legal analysis--words like "murder," "serial killer," and "impeachment."

As I said at the time of O'Connell's and my debate, if one is going to make such accusations, I believe one should have courage to say directly what one is really saying. Here is how I put it then:

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.