Last week, Glenn Greenwald wrote a very thoughtful piece over at salon.com in response to a Washington Post article by Dana Priest detailing the use of decapitation strikes against alleged terrorist suspects in Yemen. The main focus for Greenwald's ire was the following information conveyed in the Washington Post report:
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After the Sept. 11 attacks, Bush gave the CIA, and later the military,
authority to kill U.S. citizens abroad if strong evidence existed that
an American was involved in organizing or carrying out terrorist
actions against the United States or U.S. interests, military and
intelligence officials said. The evidence has to meet a certain,
defined threshold. The person, for instance, has to pose "a continuing
and imminent threat to U.S. persons and interests," said one former
intelligence official. The Obama administration has adopted the same stance. If a U.S.
citizen joins al-Qaeda, "it doesn't really change anything from the
standpoint of whether we can target them," a senior administration
official said. "They are then part of the enemy." Both the CIA and the JSOC [Joint Special Operations Command, a military unit tasked with tracking and killing terrorist suspects] maintain lists of individuals, called
"High Value Targets" and "High Value Individuals," whom they seek to
kill or capture. The JSOC list includes three Americans, including
Aulaqi [a New Mexico born cleric], whose name was added late last year...
Greenwald's argument is that by targeting American citizens, the Obama administration is essentially engaged in the practice of extra-judicial killing, which is not only a violation of international law (1989 UN Principles), but also contradictory to the American position to condemn other regimes who kill citizens outside of due process.
While I am very sympathetic his arguments and to the general condemnation of the use of targeted killing in the war on terror, the classification of decapitation strikes as extra-judicial killing--though occupying the moral high-ground--misses the legal mark.
Extra-judicial killing is understood within the law to be primarily concerned with meting out punishment outside of due process. In other words, extra-judicial killing is an act of retribution meant to punish someone for a (perceived) transgression and to serve as a deterrent to those who might wish to follow their lead.
What the Obama administration and previous Bush administrations have been very careful to do is frame their use of targeted killing as a pre-emptive tactic against imminent threats or, more controversially, those with the capabilities to pose a threat. In doing so, they have positioned targeted killing (and pre-emptive strikes more generally) as the appropriate tactical response to the strategic problem of facing an adversary who cannot be deterred. Thus, the official goal isn't punishment, retribution, or deterrence but prevention within what is presented as an armed conflict without precedent.
This framing then takes targeted killing outside of the areas of international human rights law where one might be able to make a case that this indeed constitutes extra-judicial killing and places it squarely within jus ad bellum (right to war) and jus in bello (right conduct in war) considerations .
To be clear, I am not arguing that targeting killing is justifiable on this basis because even under the laws of war, it occupies legal ground that can be challenged. Moreover, the law in these areas is rife with ambiguities about how key principles like imminence, proportionality, combatant status, named targeting, and last resort are to be understood in the contemporary security environment.
My point is that too often in critiquing the practices that have become a part of the war on terror, we operate under the assumption that they are in direct violation of the law. The problem though, is that in most cases, however abhorrent the practices may be themselves, a credible--though not necessarily convincing--legal defense can be given.
The law is but one part of the political dynamics underpinning the war on terror and cannot be separated from them.Therefore, we do ourselves no favors in reifying the law or expecting that the law on its own can right the wrongs and excesses of the national security state.
Photo credits: kamshots and wili_hybrid
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