AUMF: Scope and Reach

Ryan Goodman and Sarah Knuckey: Questions About New Targeting Rules

By Jack Goldsmith
Saturday, May 25, 2013, 8:43 AM

Ryan Goodman and Sarah Knuckey maintain that the new targeting framework announced by the President “raises some troubling questions and leaves important older questions completely unanswered.”  Their list is long, but here are the first two:

Where do the rules apply? The new rules apply only to operations conducted outside "areas of active hostilities." A lot turns on the definition of that geographic boundary. For all we know, the administration may define parts of Pakistan, Yemen, and elsewhere as a zone of hostilities. The administration, however, doesn’t tell you how it decides when and where places of active hostilities exist. And wherever such zones exist, the new rules are irrelevant. In short, it is possible that the "new" rules may leave completely untouched some of the most significant parts of the existing drone program.

Signature strikes: in or out? Some suggest that the new rules put an end to controversial signature strikes, carried out based on patterns of behavior assumed to indicate militancy. The new rules do finally rebut reports (sourced originally to anonymous government officials) that "all military-aged males in the vicinity of a target are deemed to be combatants." Yet there is no clarity at all about what actual "signatures" were used, or might still be in use. Nothing in the new rules requires that the government kill only named targets, and nothing in the rules prohibits behavior-based targeting. On the contrary, senior administration officials, hours before the President’s speech, suggested that signature strikes will continue but perhaps decrease "over time."

The entire essay is worth a read.