In his syndicated column from this past weekend, George Will kindly quoted extensively from a law review article of mine that argues that killing al Qaeda leaders with drones is not assassination, which is prohibited by executive order. Instead, I argue that al Qaeda leaders are fighters who are legitimate targets, just as Admiral Yamamoto, who was shot down in a special mission over the Pacific, was in World War II. Here’s Will:
But was the downing of Yamamoto’s plane an “assassination”? If British commandos had succeeded in the plan to kill German Gen. Erwin Rommel in Libya in 1941, would that have been an assassination? If President Ronald Reagan’s 1986 attack on military and intelligence targets in Libya, including one that Moammar Gaddafi sometimes used as a residence, had killed him, would that have been an assassination? What about the November 2001 CIA drone attack on a Kabul meeting of high-level al-Qaeda leaders that missed Osama bin Laden but killed his military chief?
The natural implication of this argument is that in any war, the American civilians in the military chain of command are equally legitimate targets of attack. I think that is right. So if the Russians were to go to war with us, President Obama and Secretary Panetta are legitimate targets. But Secretary Sebelius is not.
This doesn’t address, however, whether terrorists can legitimately use force at all. I do not believe that they are belligerents covered by the Geneva Coventions because they have not signed on to the treaties and do not obey the rules of war, such as wearing uniforms and avoiding civilian casualties. Terrorists are illegal combatants whose very resort to force is illegal. Thus they are not even due the careful protections for civilian or military targets that would be applied in a normal war, just minimum humanitarian protections. Otherwise, there is no sanction on terrorists for violating all of the rules of civilized warfare.