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Law and Order

Targeted killing is legitimate and defensible.

Jun 6, 2011, Vol. 16, No. 36 • By KENNETH ANDERSON
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It matters in domestic law, too, that the OBL raid has been described in some quarters as simply a conventional military operation. But the raid was also described by Panetta as a covert operation, by reason of CIA participation, with attendant reporting and oversight requirements. In the OBL raid, no one is unhappy to report, of course. But in the future, these commingled operations might produce less positive results. Clarity on the oversight requirements, when and by whom they are triggered in mingled operations, is far from merely lawyers’ worries.

Much more important, however, but also much harder to convey, is the importance of engagement with international law. The time for saying with a shrug, of course it’s illegal or extralegal, is long gone. Needed, rather, is for the United States to articulate on a regular basis its views of why it thinks its counterterrorism programs are consistent with international law. State Department legal adviser Harold Koh, to his credit, has done so both in the case of targeted killing using drone warfare, in a widely remarked speech last year, and more recently in a short statement on the bin Laden killing to the international law blog Opinio Juris.

The United States does not believe it is acting extralegally, let alone illegally, in its counterterrorism programs, and it should be willing to say why. The U.S. government believes, as former State Department lawyer Ashley Deeks observed in a recent, influential paper, that states that are unable or unwilling to deal with terrorists in their midst lose claims of sovereignty, thus allowing other states to reach inside to deal with them. The U.S. government believes, moreover, in Koh’s formulation, that even covert operations undertaken outside of an armed conflict must still adhere to international law principles of necessity, distinction, and proportionality in their conduct; there are limiting principles of international law that the U.S. recognizes and abides by.

The problem is, such public, official articulations are rare. Without question, lawyers at Defense, Justice, the CIA, and other agencies closely scrutinize U.S. practices and operations for legality under both domestic and international law. This is good and proper, particularly as secret opinions can address facts that must remain secret. But it is not enough, because secret opinions, however persuasive, do not convey legitimacy. Public legitimacy does not require that the government reveal secret facts, programs, activities, and other things that ought to remain secret. But there is much that can be shared about the basic interpretations of domestic and international law that inform the necessarily secret work.

It is quite true that wide swaths of critics won’t be satisfied; that’s not the point. The international law community will never be satisfied, and whatever one gives them, if it’s done merely to appease them, they will take as weakness. International law critics will speak with utter confidence and great bluster. “International law” is better understood not so much as a unified field with definitive answers but as a set of more and less “plausible” interpretations, in a world of sovereign states in which there is no final adjudicator to say yes or no. It is fused with diplomacy, politics, and real-world consequences.

The United States should seek to convey that it has a considered, plausible view of the law, whether shared by the critics or not. That view will achieve public legitimacy in no small part because the U.S. government has the confidence to articulate it and defend it as such. This is an approach to the public articulation of international law begun by then-State Department legal adviser John Bellinger in the later years of the Bush administration, and while it requires being willing to weather a great deal of criticism and sometimes abuse, it is the right approach.

Moreover, as current legal adviser Harold Koh has been careful to note in his speeches, these legal views are connected in their claim of plausibility to a long line of jurisprudence articulated by the State Department over decades. One might disagree with the conclusions, but this jurisprudence cannot be dismissed out of hand. The decades-old views of the United States on international law matter more than those of Bolivia or Tajikistan, or subcommittees of the United Nations, or congeries of NGOs. Which is to say, the U.S. view of its counterterrorism activities is that they are not truly “extralegal” but have a legal basis, including limits upon them, even if they are not the limits sought by Washington’s critics.

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