Debate: Do you support U.S. targeted killing in Yemen?
Protests against the return of President Ali Abdullah Saleh have been held in Sanaa in recent days.
June 9th, 2011
11:31 AM ET

Debate: Do you support U.S. targeted killing in Yemen?

Editor's Note: John Masters is an associate staff writer at CFR.org. This essay comes from CFR.org's Expert Roundup on targeted killing. For more, visit CFR.org.

By John Masters

The Obama administration has escalated the campaign of targeted killings against suspected terrorists worldwide, increasing the use of unmanned drone strikes and so-called kill/capture missions on al-Qaeda and Taliban leadership both on and off the traditional battlefield.

CNN reports that the U.S. is upping its airstrikes in Yemen.

While some analysts tout successes, like the U.S. Navy SEAL raid that killed Osama bin Laden inside Pakistan, others say the strategy lacks proper legal boundaries, as in the targeting of an American jihadist, Anwar al-Awlaki, in Yemen.

Should targeted killings continue off the traditional battlefield?

Constitutional lawyer Pardiss Kebriaei questions the legal basis that U.S. administrations have used to justify killing suspected terrorists off the battlefield, suggesting a violation of constitutional rights of due process.

Matthew Waxman cautions against overreliance on them as a counterterrorism tool but says so far U.S. policy is within legal bounds.

Pardiss Kebriaei: No, it's not legal

The aspect of the United States' targeted killing policy that is of greatest concern is that which permits deliberate, preemptive strikes outside zones in which the United States is engaged in active combat such as in Afghanistan.

In such zones, the intensity of fighting between organized armed groups creates a certain exigency that permits killing outside the usual confines of the law, which would otherwise require due process or excuse the use of lethal force only in narrow circumstances of self-defense.

It is that exigency - of war - that triggers the application of a different set of rules - the laws of war - and permits uses of force that would otherwise be unlawful and unacceptable.

The Obama administration's position, however, like that of its predecessor, is that those exigent circumstances exist globally - that an attack on the United States nearly a decade ago triggered a conflict against Al Qaeda and the Taliban that is being waged not only in Afghanistan but extends potentially everywhere, or, as the administration ambiguously puts it, "elsewhere."

Read: CFR.org's excellent coverage of world affairs.

But it takes more than declaring a global war for U.S. drone strikes to be lawful in countries as disconnected from the conflict in Afghanistan as Yemen. Whether a situation rises to the level of armed conflict and justifies more permissive rules for the use of force depends on how the facts on the ground, measured against objective criteria defined under international law, add up.

Where conditions of armed conflict do not exist, the law that governs the actions of the United States is the Constitution and international human rights law, under which the government can only carry out a killing after due process or as a last resort to address an imminent threat of deadly harm. Those are the standards, for example, that should govern the United States' actions vis-à-vis U.S. citizen Anwar al-Awlaki in Yemen.

Wherever one comes down in the debate, however, it is impossible to discuss the issues other than in the abstract without greater specificity from the Obama administration about its targeting policy.

What, if any, geographical boundaries exist in this conflict, and how are they determined? What are the criteria for determining whether to target an individual? What are the criteria for determining whether a group is sufficiently "associated" with al-Qaeda? What are the conditions in which the administration believes it may act in self-defense? If imminence is part of the calculus, how is that term defined?

The abuse and arbitrariness that resulted from the Bush administration's insistence on secrecy, and the Obama administration's own purported embrace of greater transparency, should compel the administration to provide a fuller explanation of its targeting policy. Its failure to do so in more than broad strokes only adds fuel to existing questions and concerns.

Matthew Waxman: Yes, it's legal

U.S. strikes against senior al-Qaeda or affiliated terrorists in places like Pakistan or Yemen - most recently, the reported (but unverified) killing of al-Qaeda-linked Pakistani militant Ilyas Kashmiri - often give rise to accusations that the United States is engaged in unlawful "extrajudicial killing," "assassination," or violations of sovereignty.

In part because of the secrecy surrounding these policies, such legal claims often don't get thoroughly and specifically answered. However, lethal force directed against particular individuals outside a combat zone like Afghanistan is legally and strategically appropriate in limited circumstances.

The 2010 public remarks by State Department Legal Adviser Harold Koh defending drone strikes (along with a 2006 speech (PDF) by his predecessor, John Bellinger, explaining the legal basis for the use of military force against al-Qaeda) are important documents because they outline some of the legal principles that govern U.S. targeting of al-Qaeda figures.

They argue that traditional international legal paradigms of armed conflict and self-defense may apply to some non-state terrorist organizations like al-Qaeda and groups allied with it, but they also acknowledge that these legal paradigms–built primarily to deal with inter-state conflict–don't always fit well the challenges and dilemmas involved in combating non-state threats.

Legal constraints on U.S. actions include respect for state sovereignty (limiting where and under what conditions the United States could target) and law-of-war principles such as proportionality and distinction (limiting when and how the United States could target).

Applying these frameworks to the recent raid on Osama bin Laden, as Koh did publicly recently, the United States has a strong argument that he could be targeted as an enemy commander in the ongoing armed conflict with al-Qaeda. U.S. actions in Pakistan's territory were also defensible because the Pakistani government was not capable or willing to deal with this threat. So far as I can tell from available information, the operation was planned and carried out in strict accordance with the laws of war, including due care to protect innocent civilians and rules regarding surrender.

As to strategy, lethal targeting is but one important tool in the counterterrorism arsenal. Policymakers must be careful that the allure of lethal targeting operations, especially with high-tech weaponry like aerial drones, does not obscure the collateral damage that sometimes comes with such strikes - not only the human toll but the repercussions on other important elements of counterterrorism strategy.

What do you think?

More debate at CFR.org

Decapitating terrorist networks is an effective strategy, says Georgetown's Daniel Byman, capable of robbing a group of charismatic leadership critical to its success. But Afghanistan expert Kate Clark argues that targeted killings often produce an organizational chaos that unleashes a more radical generation of subordinates.

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Topics: Terrorism • Yemen

soundoff (131 Responses)
  1. ThatScreenNameIsAlreadyTaken

    We could always invade them and carpet bomb their weddings and shoot up all the civies, like we usually do.
    Maybe then they'd learn to appreciate targeted killings.

    June 18, 2011 at 8:40 am | Reply
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