Earlier in the week, in a speech at Yale Law School, the Pentagon's chief lawyer, Jeh Johnson, delivered a spirited defense of US targeted killing policy. He did not say much that the administration has not previously asserted, but he did say it in a way that provides greater reason to believe that US killing policy and practice is beyond the scope of applicable international law. The essence of Johnson's defense of targeted killing artfully obscures a major bait (with talk of detention powers) and then switch (to targeting).
First, Johnson lays out the scope of the "enemy combatant" concept:
(I)n the conflict against al Qaeda and associated forces, the bedrock of the military's domestic legal authority continues to be the Authorization for the Use of Military Force passed by the Congress one week after 9/11. "The AUMF," as it is often called, is Congress' authorization to the President to: use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.Second, Johnson goes on to describe how the AUMF is construed to supply detention powers:
Ten years later, the AUMF remains on the books, and it is still a viable authorization today. In the detention context, we in the Obama Administration have interpreted this authority to include: those persons who were part of, or substantially supported, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners.(emphasis added)
This interpretation of our statutory authority has been adopted by the courts in the habeas cases brought by Guantanamo detainees, and in 2011 Congress joined the Executive and Judicial branches of government in embracing this interpretation when it codified it almost word-for-word in Section 1021 of this year's National Defense Authorization Act, 10 years after enactment of the original AUMF. (A point worth noting here: contrary to some reports, neither Section 1021 nor any other detainee-related provision in this year's Defense Authorization Act creates or expands upon the authority for the military to detain a US citizen.)
Third, Johnson moves seamlessly from detention to targeting:
But, the AUMF, the statutory authorization from 2001, is not open-ended. It does not authorize military force against anyone the Executive labels a 'terrorist.' Rather, it encompasses only those groups or people with a link to the terrorist attacks on 9/11, or associated forces.
Nor is the concept of an 'associated force' an open-ended one, as some suggest. This concept, too, has been upheld by the courts in the detention context, and it is based on the well-established concept of co-belligerency in the law of war. The concept has become more relevant over time, as al Qaeda has, over the last 10 years, become more de-centralized, and relies more on associates to carry out its terrorist aims.
An "associated force," as we interpret the phrase, has two characteristics to it: (1) an organized, armed group that has entered the fight alongside al Qaeda, and (2) is a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners. In other words, the group must not only be aligned with al Qaeda. It must have also entered the fight against the United States or its coalition partners. Thus, an 'associated force' is not any terrorist group in the world that merely embraces the al Qaeda ideology. More is required before we draw the legal conclusion that the group fits within the statutory authorization for the use of military force passed by the Congress in 2001.
Johnson uses statutory and judicial affirmations of the scope of detention power that is based on membership or association to justify killing. His focus on "groups" is a reference to "status-based" targeting, rather than individuals and "conduct-based" targeting. In essence, Johnson's conflation of grounds for detention and grounds for extrajudicial killing amounts to "if you can detain them, then you can kill them."
Status-based targeting is fine for combatants in armed conflicts between states, where members of the armed forces are easily distinguishable from the civilian population and therefore, targetable simply because of who they are. In armed conflicts against non-state armed groups who do not wear uniforms and are often difficult to distinguish from the civilian population, targeting determinations rightfully require a higher threshold of imminent harm. They must be based on conduct: either that the suspect is "directly participating in hostilities" (DPH), or that he or she performs what the International Committee of the Red Cross (ICRC) calls a "continuous combat function" (CCF) in the armed conflict. It is also noteworthy that this CCF justification remains controversial, due to the fear that it places too much pressure on the principle of distinction the most fundamental principle of the laws of armed conflict designed to insulate civilians from hostilities. Whether or not you buy into CCF, mere "membership" (whatever that means in the case of a diffuse, non-state group or ideology, let alone being an entity "associated" with that group or ideology) is not enough to justify extrajudicial killing.
Johnson poses the rhetorical question: "Should the legal assessment of targeting a single identifiable military objective be any different in 2012 than it was in 1943, when the U.S. Navy targeted and shot down over the Pacific the aircraft flying Admiral Yamamoto, the commander of the Japanese navy during World War Two, with the specific intent of killing him?" It is a trick question that assumes the fact of what it is supposed to determine. The proper question is not whether the law on targeting a known military objective has changed; it is whether the law on determining a military objective is being respected. Targeting a suspected member of an amorphous non-state armed group or a suspected member of an "associated force" in a non-international armed conflict is not the same as targeting the commander of a state's enemy forces in an international armed conflict. To suggest otherwise is irresponsible a rather stunning failure to appreciate the most fundamental principles of targeting law designed to protect civilians from the ravages of war.
Rather than a successful defense of targeted killing policy, Johnson's speech is an admission that US practice is beyond the scope of international humanitarian law the body of law that governs war, or armed conflict. As such, US practice is also necessarily beyond what international human rights law would permit outside of war, since the international law rules for killing in peacetime require a higher threshold of imminent harm than the rules applicable to war.
Why are the flaws of Johnson's defense of targeted killing not obvious?
All of what is so difficult to see about what is wrong here can be traced back to the Bush administration's unnecessary and incorrect decision, adopted by the Obama administration, that in order to detain people in war, you have to label them "enemy combatant," or "unprivileged enemy belligerent" (the difference between the two terms is merely cosmetic).
Why "unnecessary?" Whether or not you think the law of armed conflict and/or the AUMF provides detention authority, attaching the label "enemy combatant" adds nothing to detention powers in armed conflict against a non-state entity. What the Bush administration did, in a fit of overreaching and insecurity, was to import detention constructs from the law applicable to detention of combatants in inter-state wars to wars between a state and a non-state armed group. The crucial distinction between these two types of armed conflict is that in inter-state wars, otherwise known as International Armed Conflict (IAC), the Geneva Conventions establish detention authority over both civilians who pose a security risk and combatants; there are no Geneva Conventions provisions for detention in non-international armed conflicts (NIAC), in which detention grounds and procedures are presumed to be, and must be, articulated in domestic law.
The decision to use "enemy combatant" as a talisman for detention has spawned pernicious justifications for killing. It invites and obscures the illogic of exactly what Jeh Johnson did at Yale the other night: conflate grounds for detention and grounds for targeting, since after all, what could be wrong with targeting an "enemy combatant?" At the core, Johnson's defense of targeted, extrajudicial killing fails to respect the logic that "just 'cause a cat has kittens in the oven, doesn't make 'em biscuits."
Gabor Rona is the International Legal Director for Human Rights First. Prior to joining Human Rights First, he was Legal Advisor in the Legal Division of the International Committee of the Red Cross (ICRC). Rona has extensive experience in international criminal law and international humanitarian and human rights law in the context of counter-terrorism policies and practices. He is a frequent JURIST contributor.
Suggested citation: Gabor Rona, US Targeted Killing Policy Unjustified, JURIST - Hotline, Feb. 24, 2011, http://jurist.org/hotline/2012/02/gabor-rona-targeted-killing.php.
This article was prepared for publication by Sean Gallagher, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org