Drone Warfare, Executive Orders, and Assassinations

 

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. 

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Members have made 28 comments.

  1. Profile photo of Nealfred Member

    This is something only a lawyer would care about. This President couldn’t care less his only concern is that it makes him look “Good”. That’s my take.

    • #1
    • December 11, 2012 at 5:30 am
  2. Profile photo of John Grant Contributor

    Hi John,

    Thanks for your article. I have been wondering what the meaning of “assassination” is in the Lieber Code. Your article answered that question. The link between assassination and treachery makes sense in the context of the Code.

    I am not sure about targeting civilian leaders though. Doesn’t that blur the distinction between combatant and non-combatant? I thought combatants had to be under legitimate authority and in uniform/armed. Article 15 of the Lieber Code seems to indicate that only those under arms may be killed, while important members of the hostile government may be captured.

    Any thoughts you have would be much appreciated.

    • #2
    • December 11, 2012 at 5:30 am
  3. Profile photo of John Grant Contributor

    We should all care about preserving civilization. The laws of war are meant to limit inhumane activity as much as possible given the fact that war must involve violence.

    I wish voters cared about things like drone strikes–are they just or unjust? I for one would like to know, because we are blowing people and property up in a number of places around the globe, including sovereign nations that are not our legal enemies (e.g. Pakistan and Yemen).

    I was looking into this over the weekend, and I was shocked at the lack of discussion about this among policymakers and legal scholars. People used to think this is a big deal.

    One example–many people thought the assassination of Lincoln was what we would call a war crime. The question has important ramifications.

    Nealfred: This is something only a lawyer would care about. This President couldn’t care less his only concern is that it makes him look “Good”. That’s my take. · 0 minutes ago
    • #3
    • December 11, 2012 at 5:36 am
  4. Profile photo of Crow's Nest Member

    Prof. Yoo: I agree with much of what you’ve written here, and I am happy to distinguish political assassinations from the targeted killing of military commanders on a battlefield in wartime along the lines you describe.

    Nevertheless: while the Executive has, so far, been quite judicious in its usage of drone warfare, the concern I have with your construction is precisely how we define “wartime”.

    We’re the better part of a decade along in the war against Islamofascism, and likely we’re looking at a struggle, whether cold war or hot war, of the better part of a generation (at least). 

    It seems to me that as the drone option increasingly becomes seen as an attractive option–and your article documents the ways that critics of its usage, once in power themselves, come quickly to see its virtues in terms of limited US forces footprint and minimizing collateral damage–then its usage will proliferate. And if we define “wartime” as it seems to stand at present, a multi-generational conflict, one needn’t be a Ron Paul supporter to note the troubling implications of an unchecked Executive utilizing this power ad hoc in a near-permanent war.

    • #4
    • December 11, 2012 at 5:43 am
  5. Profile photo of Sabrdance Member

    Sebelius is in the line of succession. I would have thought this makes her a military target as well.

    • #5
    • December 11, 2012 at 5:58 am
  6. Profile photo of KyRifle Inactive

    Mr Yoo, I see no problem with killing our enemy what concerns me is the scope of how we define the enemy and then prosecute the killing. Since WWII we have allowed Congress to get out of declaring wars, and that has introduced specific problems, government dysfunction and corruptness.

    And if these terrorist are “illegal combatants whose very resort to force is illegal”, that places us in a dilemma. If this is true then it becomes a “legal issue” and a court must decide the fate of the combatants and not the military. Under this definition if we have a treaty with the home country the enemy combatant must be returned to their home country and tried as terrorist by their own courts.

    Because we are a nation of laws and rise above the terrorist mindset American citizens should not be the target of a military execution based on the opinion of one individual. The POTUS has been granted no authority by the Constitution to carry out the targeted killing of American citizens, you can’t have it both ways. 

    • #6
    • December 11, 2012 at 6:03 am
  7. Profile photo of doc molloy Inactive

    Was ambassador Chris Stevens assassinated in Benghazi or merely murdered/killed.. And what is the Obama administration going to do about it? The Susan Rice drone… all gone silent on that front.

    The Diem coup in Saigon in 63 and he and his brother’s dreadful deaths.. murdered by the men who were sanctioned by the Kennedy White House ( Harriman, Hilsman and Lodge and to a certain extent by influence, Halberstam) to go ahead with the coup. Assassination by association?

    • #7
    • December 11, 2012 at 6:05 am
  8. Profile photo of flownover Inactive

    Professor,

    Of course you are right to follow this train of thought and establish the law , but with the present administration conducting the business of the world, does it sometimes feel like you’re building houses from playing cards in a high wind ?

    • #8
    • December 11, 2012 at 6:06 am
  9. Profile photo of John Walker Contributor

    The Ricochet platform makes it simply too painful to try to quote multiple excerpts from the original posting. (Doubt it? Try it yourself.) So I will interpolate using quoted text.

    …I argue that al Qaeda leaders are fighters who are legitimate targets, just as Admiral Yamamoto…

    Admiral Yamamoto was a member of the military chain of command of state which was the object of a declaration of war by the U.S. Congress. Certainly, he was a legitimate military target.

    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 Conventions 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.

    But now it gets all fuzzy, doesn’t it? Let’s assume that South Fredonia, whose citizens have been victims of genocidal raids from North Fredonia decide to defend themselves and seek independence. The North is recognised by the United Nations, the South are therefore illegitimate terrorists not worthy of protection. Out of words, but s/Fredonia/Sudan/

    • #9
    • December 11, 2012 at 6:12 am
  10. Profile photo of MMPadre Inactive

    Of course it’s not assassination. It is selective bombing –sorry, kinetic intervention– undertaken at the whim of the President, across national borders of countries with which we may or may not be at war, employing explosives to kill individuals who may or may not be legitimate military targets, routinely killing bystanders caught in the blast, who are then re-classified as guilty-by-proximity, which avoids the messiness of capture and interrogation, which –because it is out of sight is out of mind– gives progressives enough cover to ignore it. And since it is conducted by a man that many in this country think possesses the Mandate of Heaven, is beyond reproach, anyway. So, no, it is not assassination –it is too indiscriminate to be called that. It is rather –oh, what’s the word?– oh, yes: it is terrorism.

    • #10
    • December 11, 2012 at 6:48 am
  11. Profile photo of Robert E. Lee Member

    If warfare were “civilized” then the killing would start with the civilian “leaders” and work it’s way down to the common soldier rather than the other way around.

    Illegal combatant? Only a lawyer could come up with that distinction. If the person on the “other” side uses a weapon, it’s illegal. If he wears a uniform, he’s a soldier; if he doesn’t wear a uniform, he’s a terrorist; if he’s a citizen, he’s a criminal. If he wins, he’s a patriot. Guess which King George III thought George Washington was.

    Personally, I think we should fire lawyers at the enemy. It’s much more economical than bullets and more satisfying to boot. Plus we have a surplus of lawyers and why should we have all the aggravation.

    • #11
    • December 11, 2012 at 8:33 am
  12. Profile photo of Neolibertarian Inactive

    Mr. Yoo, it is easy to conclude that, given the various premises, you’re entirely correct.

    Yet, this war is only a technical war. War powers were granted in at least two pieces of legislation, yes. As time wears on, conditions which were defined as a basis for the war powers have significantly changed. The definition of war has become distorted beyond recognition, to say the least.

    Furthermore, “al-Qaeda” is a much misused term which doesn’t really define anything tangible. It refers to militant Qutbists, not necessarily terrorist organizations or groups. Not all Qutbists, nor militant Salafists, are terrorists. Ergo, assigning targets for termination requires an arcane interpretation of data by bureaucrats who cannot legally share this data, except under specific circumstances.

    This is a situation few are willing to tolerate forever.

    There is dishearteningly little effort to define circumstances justifying continuation of the war powers. There is absolutely no effort at correcting or refining either official or civilian definitions for the term “al-Qaeda.” Where the Bush Administration was remiss, the Obama Administration is abjectly malfeasant in this regard.

    All of this constitutes a recipe for what lunatics like Katrina vanden Heuvel call The National Security State.

    • #12
    • December 11, 2012 at 9:09 am
  13. Profile photo of Jeff Y Inactive

    Even in peace, Congress can authorize the Executive with Letters of Marque and Reprisal. I don’t doubt that what you’ve written is correct, especially about illegal combatants. As long as by ‘illegal’ we mean against international treaties that some but not all nations condone. There’s really no such thing as “international law.”

    My concern is about the spectre of perpetual warfare. It seems we are going to always be in a state of war. In that situation, the Executive can by fiat kill anyone. The President designates the person a terrorist, and then kills him. And since we’ll likely be in a perpetuals state of war, every President from now on will have that power.

    Doesn’t that worry you?

    • #13
    • December 11, 2012 at 9:22 am
  14. Profile photo of Crow's Nest Member
    FloppyDisk90: So what is your stance on the strategic bombing campaign of WWII….

    Not that this isn’t an interesting question worthy of its own discussion at some other point in time (and we’ve had them from time to time), but I think we oughtn’t conflate too many things together in this debate.

    The strategic bombing of enemy infrastructure in a city while at war against a major industrial power is a different question–though still a valid jus in bello question–then targeted killing. The more apt analogy would be whether or not a targeted killing of Rommel in North Africa, say, would have been appropriate.

    Returning to the usage of drones question, some kind of adapted/updated form of a Letter of Reprisal might very well be best legal framework for targeted killing in a long cold war against non-state or asymmetric actors.

    I do not recall if Richard and John have discussed this previously on Law Talk, but perhaps they can address whether these measures are still “legal” following in light of Article 2 of the UN Charter and the 1865 Paris Declaration. 

    • #14
    • December 12, 2012 at 1:32 am
  15. Profile photo of Crow's Nest Member

    As I’ve written previously, Presidents have acted properly and within their prerogative to use drone strikes since 9/11. The questions going forward are: how long is this authority to use a wartime power in force? What criterion is utilized to distinguish someone as a legitimate enemy combatant from a civilian? 

    For my part, were we at war with a state actor with a regular army, I wouldn’t have a problem with the theater commander making the decision to use targeted killing against enemy leadership. In the present conflict, however, I think it prudent to restrict this authority to the Executive.

    As Prof. Yoo notes in his article, the “go/no go” and “hold fire” tactical orders should be given at the time by the President in consultation with his NSC/military advisors. It is appropriate that the Executive be given flexibility here.

    (cont)

    • #15
    • December 12, 2012 at 1:47 am
  16. Profile photo of Crow's Nest Member

    (cont)

    Since we are in a long non-traditional conflict, Congress rightly authorized broad use of force. However, the further away in time we get from that moment, the more tenuous that extremely broad authority begins to seem, and the more chance for further erosion of proper checks and balances there is. Are we to say that a drone strike against a militant leader born in 2000 if carried out in the year 2030 was authorized by the Congressional bill passed on September 14, 2001?

    If we are to maintain accountability–which is always difficult in a somewhat convert war against an asymmetric enemy–it seems to me that the portion of the decision-making process that needs to be addressed going forward is to provide the Congress with some procedural role in determining who ends up on the targeted killing list–and this is why the Letters of Reprisal idea may make sense as one weapon brought to bear in this conflict.

    The Executive should have the flexibility to determine the where, when, and how of a given strike, perhaps the Congress should approve the who well in advance and let the Executive act when they find him.

    • #16
    • December 12, 2012 at 1:53 am
  17. Profile photo of John Grant Contributor

    I cannot agree.

    One of the great achievements of European civilization from the late-17th to the early 20th centuries was the “bracketing” of war–confining armed conflict to uniformed, armed enemies who were not regarded as criminals.

    Of course this system was not always followed, but the extent to which it was followed is remarkable.

    For instance, I am very happy that the laws of war were followed so much in our own Civil War. It was very wise to treat Robert E. Lee as an honorable opponent rather than as a treasonous criminal.

    In many ways our mode of warfare is much less civilized than it was back then.

    Robert E. Lee: If warfare were “civilized” then the killing would start with the civilian “leaders” and work it’s way down to the common soldier . . . .

    Illegal combatant? Only a lawyer could come up with that distinction. If the person on the “other” side uses a weapon, it’s illegal. If he wears a uniform, he’s a soldier; if he doesn’t wear a uniform, he’s a terrorist; if he’s a citizen, he’s a criminal. If he wins, he’s a patriot. · 6 hours ago

    • #17
    • December 12, 2012 at 4:05 am
  18. Profile photo of FloppyDisk90 Member

    @John Grant,

    So what is your stance on the strategic bombing campaign of WWII which, by and large, focused much of its efforts on breaking the enemy’s will to fight by bombing its civilian population?

    • #18
    • December 12, 2012 at 5:11 am
  19. Profile photo of Neolibertarian Inactive

    FloppyDisk90: 

    So what is your stance on the strategic bombing campaign of WWII which, by and large, focused much of its efforts on breaking the enemy’s will to fight by bombing its civilian population?

    The fact that the Dresden Bombing sparked such furious debate before the raid was launched, belies your assertion.

    You can make the case that the British, by only bombing at night, were less diligent in avoiding civilian non-combatant injuries and deaths. You can make the case against the US in very few instances–such as the Dresden, Hiroshima and Nagasaki raids.

    These are the exceptions which help prove the rule: at least with plausible deniability, the allies were NOT focused on bombing civilian non-combatants. Enough honest effort at limiting non-combatant casualties provides adequate evidence to, perhaps not completely exonerate them, but to make a strong case your characterization (and understanding) simply isn’t accurate.

    The American military leadership always finds itself up against that “all lawful orders” thingy. It’s a mistake to underestimate the power of that word, inserted where it is in the oath.

    • #19
    • December 12, 2012 at 6:39 am
  20. Profile photo of John Grant Contributor

    I can’t make up my mind. On the one hand, deliberate targeting of civilians is clearly not a step forward for civilization. On the other hand, there is an argument that such tactics were necessary to win a just war. From this perspective, the bombing of Dresden and the more frequent targeting of civilians in Japan were sad necessities given the general decline in civilization manifested in the very existence of the Axis countries.

    To step aside from the complexities of international law and go back to first principles, Locke argued that it is just to use force for reparation (within limits–it can’t harm the natural rights of non-combatants) and restraint or deterrence (I can’t see a limit in his argument for restraint). In other words, a nation has the right to do harm necessary to securing its rights. Of course, this is within the framework of preserving the rights of everyone whenever possible.

    FloppyDisk90: @John Grant,

    So what is your stance on the strategic bombing campaign of WWII which, by and large, focused much of its efforts on breaking the enemy’s will to fight by bombing its civilian population? · 16 hours ago

    • #20
    • December 12, 2012 at 9:32 am
  21. Profile photo of John Grant Contributor

    Crow’s Nest,

    I don’t understand what you are saying about Letters of Reprisal etc. Letters of Reprisal grant _private individuals_ the right to seize property from citizens of another nation. The main point was a legal mechanism to authorize privateers. We swore off such things long ago, and I think that was progress–it blurs the line between combatant and non-combatant.

    • #21
    • December 12, 2012 at 9:55 am
  22. Profile photo of FloppyDisk90 Member

    @Grant

    Fair enough. The US has historically gone to extreme lengths to avoid civilian casualties and was forced to make difficult choices . I grant you and Neolibertarian that. However, when push came to shove, we killed “innocent” civilians as part of an overall pre-meditated strategy. Whether or not these decisions were “debated furiously” or were “sad necessities” doesn’t change the fact of the matter.

    • #22
    • December 12, 2012 at 10:02 am
  23. Profile photo of John Grant Contributor

    Well, this doesn’t definitively answer the problem, but we do have to reckon with the fact that the “civilian” populations of Germany and Japan were fully engaged with monstrously uncivilized war efforts.

    Mass armies supported by vast numbers of civilians producing the weapons and other supplies needed to keep them in the field for barbaric ends . . . this is a problem not faced by Europeans fighting Europeans in Europe in 1770.

    Have you ever seen the film footage of Japanese children practicing with spears to rush the invasion beaches?

    The laws of war only work for decent ends when both sides are generally adhering to them.

    FloppyDisk90: @Grant

    Fair enough. The US has historically gone to extreme lengths to avoid civilian casualties and was forced to make difficult choices . I grant you and Neolibertarian that. However, when push came to shove, we killed “innocent” civilians as part of an overall pre-meditated strategy. Whether or not these decisions were “debated furiously” or were “sad necessities” doesn’t change the fact of the matter. · 3 hours ago

    • #23
    • December 13, 2012 at 2:26 am
  24. Profile photo of FloppyDisk90 Member

    “The laws of war only work for decent ends when both sides are generally adhering to them.”

    And therein lies the fundamental problem with laws of war. Law enforcement requires the threat of some unpleasant consequence and when two sides are already engaged in killing each other the ultimate consequence is already in force.

    • #24
    • December 13, 2012 at 3:42 am
  25. Profile photo of John Grant Contributor

    Yes, nations are always in a state of nature with each other (no higher political authority with coercive power). But there have been times when civilized nations have agreed to live up to the laws of war, and that is a good thing when it happens.

    It is interesting to compare how ground warfare was conducted on the Eastern and Western fronts in WW II. The fighting between Germans and Americans (for instance) was awful, but it was a much better situation than the fighting between Germans and Russians.

    War is brutal, but when possible, it is best to minimize the brutality in a way that is consistent with the ability to wage war effectively.

    FloppyDisk90: “The laws of war only work for decent ends when both sides are generally adhering to them.”

    And therein lies the fundamental problem with laws of war. Law enforcement requires the threat of some unpleasant consequence and when two sides are already engaged in killing each other the ultimate consequence is already in force. · 6 minutes ago

    • #25
    • December 13, 2012 at 3:53 am
  26. Profile photo of FloppyDisk90 Member

    Agreed. I guess I’m just somewhat ambivalent about how much effort should be consumed attempting to follow them and debate their finer points when, as you say, the nations are in a state of nature with each other and even the US will shed them should they become a hindrance to waging war effectively.

    • #26
    • December 13, 2012 at 4:22 am
  27. Profile photo of Neolibertarian Inactive

    FloppyDisk90:

    Agreed. I guess I’m just somewhat ambivalent about how much effort should be consumed attempting to follow them and debate their finer points when, as you say, the nations are in a state of nature with each other and even the US will shed them should they become a hindrance to waging war effectively.

    Legal basis for certain military actions changes when a true, constitutionally declared war exists. I don’t believe mankind could actually survive a Congressional Declaration, which is at least one reason we haven’t had any since December 11th, 1941. Actually, legal scholars tell us that the form of declaration by Congress can take many forms–including what Congress gave the Dubya in 2001 and 2002. Dr. Yoo could shed some light here.

    However, the psychology of the American electorate would change drastically under a formal and traditional declaration. Under such conditions, it would only be a matter of time before casualties mounted enough that citizens began calling for the use of nuclear weapons. These calls were seriously entertained during the Korean War, for instance. Earnest voices calling for the use of nuclear weapons during Vietnam were judiciously ignored by almost everyone, thank God.

    • #27
    • December 13, 2012 at 6:25 am
  28. Profile photo of Neolibertarian Inactive

    Nuclear weapons have created the desperate need for stepped levels of warfare; limited war powers.

    When you say “the US has historically gone to extreme lengths to avoid civilian casualties,” you’re probably overstating our efforts during WWII, but not today. In limited war, the effort must be far greater.

    The military has even incorporated JAG lawyers on combat patrols to assist the patrol leaders’ command decisions, as explained here and here in greater detail.

    The limited wars the US fights these days has proved to the world that “extreme lengths to avoid civilian casualties” can be achieved, but that model was hardly followed by the Russians during their invasion of Georgia in 2008, for example. We pretty much stand alone in this regard.

    In the end, I’d have to say the complexities of the brutal and pragmatic business of war are far too daunting to be discussed meaningfully here.

    But it’s vitally important to begin the conversation.

    • #28
    • December 13, 2012 at 6:38 am