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Law, policy and drone war fare
The National Law Journal
A persistent challenge of effective client communication is differentiating between legal compliance and sound strategy.
The American Bar Association's Model Rule of Professional Conduct 2.1 states that "in rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation." This role as a holistic counselor, however, does not obviate the need to reasonably articulate where the law ends and policy begins.
Often legality is a floor, not a ceiling. What is legal may not be wise, and the client's goals may be achieved by means both lawful and illicit. The adviser's task is to steer the client surely onto the former path, while presenting, distinguishing and recommending among the range of legitimate options.
Much has been made of the legal justifications for targeted killing as a counterterrorism tool, particularly as described in a series of speeches by Obama administration officials and the Justice Department white paper recently obtained by NBC News. Although there was little in the white paper not presaged in the aforementioned speeches, its publication has been widely decried as a troubling augmentation of the president's legal powers to kill American citizens abroad.
The greatest deficiency of the white paper, however, is not an expansionist reading of the law, but a more basic failure to distinguish between law and policy. Specifically, the leaked memo like the speeches that preceded it couches policy considerations in the cloak of legal authorization, and does so by layering discrete legal doctrines atop one another haphazardly.
This approach may buttress the Obama administration's claim that drone strikes are "legal, ethical, and wise," but it fails to acknowledge that these terms are not synonymous…and that a given policy may be one without being all three.
The "law" pertaining to targeted killing is actually more straightforward than how the government has presented it. If, as the administration contends, we are in an armed conflict with al-Qaeda and its associates, and that conflict is not geographically bound to "hot" battlefields like Afghanistan, then the use of deadly force against enemy fighters is governed by the rules of conduct in hostilities (jus in bello).
The jus in bello was developed over centuries to alleviate "the calamities of war" to the extent practicable, assuming a backdrop in which fighting has already commenced. It explicitly rejects the notion that all is fair in war, but specifies rules that are adapted to that particular context, with an acute awareness that overly rigid regulations preventing militaries from achieving their objectives will secure neither compliance nor legitimacy.
In war, lethality is wielded with regularity. Contrary to the white paper's formulation, the perceived threat need not be imminent, capture need not be infeasible, and the target need not be high value. What matters is that targeted individuals satisfy certain indicia of belligerency, an analysis complicated by terrorist groups.
Nationality is generally irrelevant to such targeting assessments. Moreover, as former State Department legal adviser Harold Koh acknowledged in a widely cited address, during armed conflict a state "is not required to provide targets with legal process" before using lethal force.
If, on the other hand, either the United States is not in an armed conflict with al-Qaeda, or that conflict does not extend beyond Afghanistan, then two other areas of law come into play. One is the set of rules governing the resort to armed force (jus ad bellum), which holds that the use of force must be either authorized by the U.N. Security Council or exercised in self-defense as a necessary and proportionate response. Each targeted killing in Pakistan or elsewhere would thereby constitute a discrete resort to force, rather than subsumed under ongoing hostilities.
Outside the context of war, law enforcement norms as reflected in international human rights law, domestic law and constitutional due process may also apply, and the U.S. citizenship of prospective overseas targets starts to matter. Lethal force shifts from the first to last resort, to be utilized only in defense of life.
Through its white paper and speeches, the administration has offered an amalgamation of these standards, toggling between distinct doctrines in a hybrid approach that neglects to separate legal and policy limitations.
Such conflation carries dangers in itself by simultaneously setting the bar too high and too low. It offers an unduly restrictive conception of targeting in war, coupled with an underinclusive treatment of due process that appears to devalue its meaning as developed in constitutional jurisprudence. Consequently, the U.S. position is assailed by defense hawks, human rights advocates and libertarians all at once.
There are countless reasons why drone strikes may or may not be wise policy. The law is not determinative as to most of them.
Charles G. Kels is a major in the Air Force Reserve and an attorney for the Department of Homeland Security. Opinions expressed in this article are those of the author alone and do not necessarily reflect those of the departments of Homeland Security, Air Force or Defense.