Earlier this week, the New York Times published a stunning front-page article by Jo Becker and Scott Shane that portrays U.S. President Barack Obama as so genuinely concerned about the ethics of U.S. warfare that he's taken to personally reviewing the government's "kill list" to make the ultimate moral calculation of who gets to live or die, based on secret U.S. intelligence. The Times described the president as poring over terrorist suspects' biographies -- their "baseball cards," as one unnamed official put it -- and making the final determination of whether and when a suspected terrorist leader, and sometimes his family, will be killed.
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But if the president's personal involvement is laudable, the killings themselves are no less controversial. And, if the Times's reporting is accurate, the program itself is illegal.
Becker and Shane confirm what we could only guess from remarks made by Obama's advisors in the past: that the United States is targeting to kill individuals overseas who do not pose an imminent threat to the United States and who are not directly participating in hostilities against Americans. That's a violation of international law.
Let's review the tape. On April 30, counterterrorism advisor John Brennan said in a speech at the Woodrow Wilson Center in Washington, "[I]n this armed conflict, individuals who are part of al Qaeda or its associated forces are legitimate military targets. We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II."
Then, in their story Tuesday, Becker and Shane quoted unnamed administration officials suggesting that all military-age males in a strike zone are presumed to be combatants and therefore targetable.
Both that presumption and Brennan's statement are a gross misreading of the relevant law.
First, al Qaeda and "associated forces" are not like German and Japanese commanders during WWII. German and Japanese commanders in that conflict were targetable because they were members of the enemy's armed forces. It is not clear, however, that "individuals who are part of al Qaeda or its associated forces" are members of "enemy armed forces."
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