On the Original Understanding of Malinowski

By Benjamin Wittes
Monday, November 1, 2010, 11:42 AM

Kevin Jon Heller makes several challenging points in response to my earlier thoughts on Tom Malinowski's statement on targeted killings. Before you tune this out as a navel-gazing blogosphere back-and-forth, consider that the point in dispute is actually important. It goes to whether Human Rights Watch, in whose name Tom made the statement at issue, is fundamentally on board with the ACLU/CCR position in the Al Aulaqi litigation or whether it is staking out ground of its own--ground closer to, though by no means identical with, my position, Ken Anderson's, and that of the Obama administration.

I think, but I'm not sure, that Kevin is wrong, that is, that he is reading Tom's statement too aridly--both with regard both to certain nuances in what Tom does say and with regard to certain things Tom does not say. Ultimately, however, the question is unresolvable--I think Kevin would agree with this--without a more granular understanding of HRW's position than Tom's text allows. So in the interest of clarity, I have sent this post to Tom and invited further elaboration on HRW's views.

In the meantime, I address Kevin's points in no particular order.

First, Kevin asserts that I "significantly understate[] the matter when [I] claim[] that 'Tom and I likely have a modestly different sense of what imminence means.'” My sense of how imminent a threat must be in order to justify a strike, Kevin notes, is relatively broad and non-temporal, and he doubts this is true of HRW's. Now let me be clear here:  I do not doubt that my view of imminence is somewhat broader than Tom's; I said as much in my original post. I do not claim that my views and HRW's are the same. The question is whether they are modestly different or fundamentally different. Tom writes:

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 at times been met in Yemen--for example, if there is credible evidence that a targeted individual is planning attacks on the US, the threat is imminent, and he or she is in a place where an arrest operation would be impossible.

Notice Tom's tense here. He acknowledges that one can argue that conditions sufficient to justify a targeted killing "have at times been met in Yemen"--in other words, that we have already seen them. Yet when have we ever seen conditions that meet Kevin's highly-temporal sense of imminence? I am aware of no case in which a targeted killing  in Yemen has involved someone who was in the process of launching a terrorist attack or on his way to do so. The cases of which I am aware always involve something more removed in a temporal sense than that. The logic is more along these lines: We have a chance to get this guy now; we have no prospect of arresting him; and we may not get another chance before he does one of the horrible things we know he is planning, though we do not know what that horrible thing is or when it will take place. To say that conditions of imminence have existed in Yemen strongly suggests at least some degree of solicitude for this sort of not-strictly-temporal vision of imminence. Kevin and I both doubt that HRW's vision is as broad as mine, but I don't think it is fundamentally different either. It seems to me likely, as I suggested in my original post, to be modestly narrower but on the same spectrum.

To be precise, however, my view of imminence is that it is only truly a useful concept at all when one engages in targeted killing outside of the confines of armed conflict and under the rubric of self-defense. The case is much simpler if one believes, as I do, that Al Qaeda in the Arabian Peninsula is co-belligerent with Al Qaeda and thus targetable under the AUMF. Then one can analyze the matter more simply: The United States and Al Qaeda are engaged in a non-international armed conflict (NIAC), and some of the other side's fighters have gone to Yemen. We are entitled to follow them and engage them there, subject to the limitations I discuss below, whether the threat is imminent or not. In other words, if Osama bin Laden decamped to his ancestral village in Yemen and was for some reason unreachable by more traditional means, I would have no anxieties about sending a cruise missile into his window--even without a showing that he posed an imminent threat. I have little doubt that Tom is closer to Kevin than to me on this point.

This brings me to Kevin's second point. Kevin writes that,

I would question Ben’s claim that “HRW’s position is closer to mine than it is the litigating position taken by the ACLU and CCR in Al Aulaqi.”  How, exactly?  The lawsuit has never questioned the US government’s right to kill individuals who are combatants in an armed conflict, which is a basic principle of IHL.  Instead, it argues (1) that Al-Aulaqi does not qualify as a combatant in an armed conflict, because there is no NIAC in Yemen; and (2) that, as a result, his targeted killing is governed by international human-rights law (IHRL) and by US constitutional law, both of which impose meaningful limits on the government’s right to use lethal force against him.  HRW may disagree with one or both of those claims, but I doubt it.  After all, Malinowksi expressly states (my emphasis) that HRW “subscribe[s] to what was once thought a conservative principle--that governments’ coercive power, especially the awesome power to deprive people of liberty and life, must be exercised within limits defined by law that protect due process and human rights.”

But Malinowski states more than that. He also says, as quoted above, that HRW considers targeted killing lawful when it involves "a combatant on a genuine battlefield or its equivalent beyond the reach of law enforcement. . . ." Now what exactly might he mean by "its equivalent beyond the reach of law enforcement"? When I use phrases like that, I'm thinking of Yemen and Somalia myself. And the fact that this sentence appears in a discussion of Yemen a mere half sentence before Tom then makes clear that "a case could be made that these conditions have at times been met in Yemen" suggests to me that he and HRW are not disparaging the notion that there actually is a NIAC that permits some targeting of some people in Yemen some of the time. True, Tom also talks about human rights and due process, and thus seems to be invoking the IHRL regime too. But he is not saying, along with the ACLU and CCR, that there is no place for an IHL analysis in Yemen. Indeed, he is invoking an IHL analysis in a fashion that is at least recognizable to those of us who defend the Obama administration's view of the matter.

What's more, there's something big missing from Tom's statement if he is writing in support of the ACLU's and CCR's litigating position, rather than to put distance between it and HRW. What's missing is any reference to prospective judicial review of targeting of the sort that the ACLU and CCR are seeking. Remember, these groups are not arguing simply that Al Aulaqi's targeting is unlawful; they are asking for judicial intervention and an injunction against his targeting. So when HRW declares that such targeting can be lawful in situations of imminent threat and does not go on either to define such threat or to suggest that it would be appropriate for the courts to intervene in targeting decisions, it hardly reads like a vote of confidence in the ACLU/CCR position. Rather, it seems again like a softer, more restrictive version of my position--one more inflected, as Kevin says, with IHRL but in essence similar.

Third, and this may surprise Kevin, since he may interpret it as my outflanking him from the left, but I am not sure I agree with him when he says that:

I also find it difficult to believe that Ben would fully endorse this statement by Malinowski (my emphasis): “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.”  The second option seems to impose an IHRL-like restriction on IHL--insisting that the use of lethal force against a combatant outside the territorial borders of armed conflict must be necessary. If that is HRW’s position, I don’t agree with it: although I reject the US’s woefully overbroad definition of “combatant” (as essentially any member of any al-Qaeda group anywhere), I think there is little question that a genuine combatant can be targeted at will (subject, of course, to the principle of proportionality), regardless of whether the use of lethal force is necessary.  I imagine Ben would agree with me about that!

Would I? I don't think the U.S. definition of belligerent is overbroad, but I do believe there are legal limits on the use of force vis a vis a combatant outside of a traditional battle space. If an undoubted Al Qaeda figure showed up in London (as opposed to Yemen) tomorrow, for example, there would be serious legal problems with the United States bombing the apartment building in which he was staying. Notwithstanding his belligerency, there is the small matter of British sovereignty and British capacity through means of its own to address the problem he presents. It is only where the host government is either unable or unwilling to prevent attacks that force becomes an appropriate response. So I actually feel no particular discomfort with the notion, embedded in Tom's statement, that necessity might bound the use of force in a NIAC outside of the boundaries of the battle space in which that NIAC principally takes place.

In the end, all of these questions ultimately turn on what Tom means. I read his statement one way. Kevin reads it entirely differently. And we thus come to very different understandings of whether the position he has staked out on behalf of HRW is fundamentally similar to mine or fundamentally different.

Fortunately, to paraphrase Woody Allen in Annie Hall, I happen to have Tom Malinowski right here, so I hereby refer Kevin's and my dispute to him for clarification.

One shouldn't need an excuse to embed this clip, but this one is too good to pass up.