Law and Order
Targeted killing is legitimate and defensible.
Jun 6, 2011, Vol. 16, No. 36 • By KENNETH ANDERSON
This call for the U.S. government to put forward its genuine view of the legality of its use of force in the war on terror is not what it might sound like—a foolish and misguided call to “engage” with an “international community” that will never approve of such actions. The U.S. government should be utterly clear that in articulating its international law positions, it is not seeking permission. It is not granting anyone in the international community a veto on U.S. action. It has no reason, for example, to engage with the U.N., its special rapporteurs, or the Human Rights Council on this issue.
The United States should, on the contrary, assert its considered view of what it believes is a legal and essential category for the use of force in combating transnational terrorism—as well as its limits. It is happy to entertain debate, discussion, and disagreement, but after due consideration of other views and taking them as it thinks proper, it finally abides its own counsel. Washington’s bedrock position on international law, after all, is that the views of a core international actor such as the United States might not be decisive in determining international law—no one is—but neither can its views ever be merely dismissed, either.
These “intelligence-driven” covert operations are not going away. Integration of military and civilian assets will make them easier and more effective. The United States will conduct such operations more frequently and more visibly than anyone else. A consistent and unapologetic public stance on the basic principles of their legality by counselors to the United States government—including lawyers in the CIA—is an important mechanism to defend their legitimacy within this country and abroad, and on something more than merely their functional utility. It is hard to imagine that Director Petraeus would settle for less.
Kenneth Anderson is a member of the Hoover Task Force on National Security and Law, a Brookings Institution fellow, and a law professor at American University.