Editor’s Note: Mary Ellen O’Connell is the Robert and Marion Short Professor of Law and Research Professor of International Dispute Resolution at University of Notre Dame Law School.
By Mary Ellen O’Connell – Special to CNN
Every American adult knows what an armed conflict is. The U.S. is engaged in armed conflict in Afghanistan and Libya. It engaged in combat in Iraq from 2003-2011. Thus, every American knows that the U.S. is not engaged in an armed conflict in Yemen - not a real armed conflict. Nevertheless, President Obama placed an American citizen in Yemen on a kill list. Anwar al-Awlaki and several other people were killed on September 30 by a “barrage” of missiles launched from drones operated by the CIA.
The president and his officials know that it is unlawful to kill persons in this way outside of armed conflict hostilities. So they have been asserting the U.S. is in a worldwide “armed conflict with al Qaeda, the Taliban and associated forces.” This assertion defies common sense. So officials also assert we have a right to kill persons who pose an “imminent” threat under the law of self-defense. In fact, the law of self-defense, found in the U.N. Charter, permits force in self-defense on the territory of a state if the state is responsible for a significant armed attack. Yemen is not responsible for any significant armed attacks.
So are we seeing a repeat of the famous “torture memo” strategy? Arguments are being asserted that are just plausible enough to keep Congress, the courts and U.S. allies at bay so targeted killing can continue. Where we once debated the legality, morality and effectiveness of “harsh interrogation methods”, we now discuss the legality of intentionally killing of suspected terrorists far from any actual armed conflict hostilities. In other words, the end justifies the means, especially with a plausible-sounding legal cover story.
Extrajudicial killing of terrorists suspects, however, is no more efficacious, lawful or moral than torture. President Obama campaigned against the use of torture, the “global war on terror” and the senseless war in Iraq. He promised to restore America’s standing in the world. He spoke of the importance of adhering to the rule of law and our values in facing the challenge of terrorism and other problems.
In 2001, the U.S. Ambassador to Israel, Martin Indyk, stated on Israeli television the U.S. position regarding Israeli targeted killing of suspected terrorists: “The United States government is very clearly on the record as against targeted assassinations. They are extrajudicial killings, and we do not support that.”
How could we? Killing in war is justifiable morally and legally because of the extraordinary situation of real hostilities. In the limited zones on the planet where two or more contending armed groups fight for territorial control, people are on notice of the danger. In such zones, the necessity to kill without warning is understood. Still, even in combat, there are rules. Civilians may not be directly targeted; principles of necessity and humanity restrain.
Where no such intense armed fighting is occurring, killing is only justified to save a human life immediately. Peacetime human rights and criminal law prevail. The actual facts of fighting determine which rules govern killing. The president has no override authority.
Nor should he want it. These rules apply globally. The U.S. should not weaken them, providing a basis for Russia, Iran, China or Pakistan to declare war against opponents, killing them anywhere with missiles and bombs.
And what about within the U.S.? If the president can target suspects in Yemen, why not here? And why just the president? Why can’t governors order missile strikes on suspected terrorists and other criminals?
We are told with respect to targeted killing - as we were with torture - that post-9/11 circumstances require extraordinary measures. Some of our leading ethicists countered that the absolute ban on torture must be respected as a moral imperative, regardless of the consequences. We could say the same about targeted killing, but, as in the case of torture, it turns out that doing the moral thing is also the effective thing.
Torture is an unreliable means of interrogation that trained interrogators reject. Leading counter-terrorism experts similarly reject the use of military force in efforts against terrorism. Terrorists seek to undermine lawful institutions, to sow chaos and discord and to foment hatred and violence. Upholding our lawful institutions, holding to our legal and moral principles in the face of such challenges, is not only the right thing to do - it is a form of success against terrorism that can lead to the end of terrorist groups.
The killing of Anwar al-Awlaki and several persons with him on Friday in Yemen did not occur in a battle zone. The killings occurred in a country in the midst of upheaval with various armed and unarmed factions struggling for control. The United States should be encouraging non-violence in Yemen, respect for human rights and the rule of law. Instead, we have engaged in lawless violence, denying our own citizens fundamental due process.
The views expressed in this article are solely those of Mary Ellen O’Connell.