Clean Kills

The term "targeted killing" has become a political lightning rod lately, with new revelations of the development of a CIA antiterrorism assassination program, but the concept really shouldn't be so controversial. As a former U.S. Army judge advocate, my instinct is to assume that being as precise as possible when targeting an enemy opponent is generally a good thing. Nonetheless, debate persists over where such operations fall within the spectrum of international law. But in their inquiries into the legality of the strikes, critics may themselves be aiming at the wrong target.

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For the United States, the legal basis for targeted killings was provided early in what former President George W. Bush called the "global war on terror." In April 2003, the U.N. Commission on Human Rights asked the United States to explain its justification for the use of a Predator drone to attack and kill a group of suspected al Qaeda operatives in Yemen. Without ever conceding that such a mission even took place, the United States contested the commission's jurisdiction to inquire into such an attack on the grounds that the killing was an act of war governed not by human rights law, but by the law of armed conflict.

This response was a logical extension of the Bush administration's invocation of wartime authority to respond to the September 11, 2001, terrorist attacks. When Bush, followed almost immediately by Congress, chose to characterize the struggle against al Qaeda as an "armed conflict," he wasn't just playing word games. His comments meant the United States would no longer confine itself to peacetime law-enforcement authority to combat the threat of transnational terrorism. Instead, it would employ the full spectrum of national power, including the U.S. armed forces, to destroy this threat.

In terms of law, the main difference between peace and war is the authority of states to use deadly force. In peacetime, deadly force may only be used as a last resort and only in response to an actual threat. All police officers understand this paradigm, and they often assume great risk to exhaust lesser means before resorting to deadly force. War, in contrast, is defined by the exact opposite assumption: Use of deadly force is a measure of first resort and is permitted not only in response to an actual threat, but also a presumed one. Targeted killings of identified al Qaeda operatives are thoroughly consistent with the authority associated with armed conflict.

This is not to suggest that these strikes occur in a legal vacuum. Such a proposition verges on preposterous. It simply means that the law that defines whether such strikes are "lawful" is the law of armed conflict. Under that law, before any such strike is executed, there must be a determination that the object of attack is a "lawful military objective." This is certainly a more complex question when dealing with a nonstate enemy such as al Qaeda than when dealing with a uniformed opponent on a conventional battlefield. But the law of armed conflict is flexible enough to respond to this challenge.

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