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Roundtable on Targeted Killing

[Reaper drone screen. Image from unknown archive.] [Reaper drone screen. Image from unknown archive.]

[The following series of articles is part of a Jadaliyya roundtable on targeted killing. It features contributions by Noura Erakat, Lisa Hajjar, Leonard Small, Richard Falk, Pardiss Kebriaei, and Nathan Freed Wessler. The roundtable was first published in March 2012.]

Part I: Jadaliyya Roundtable on Targeted Killing: Introduction

Part II: A Meditation on Reciprocity and Self-Defense in Relation to Targeted Killing

Part III: Lawyering and Targeted Killing

Part IV: The Need for Judicial Review of US Targeted Killing Practices

Part V: The Secret Bureaucracy of Targeted Killing

Part VI: Lawfare and Targeted Killing Revisited--A Response

 

Introduction, by Noura Erakat (Open in separate window)

On 5 March 2012, Attorney General Eric Holder delivered a speech in which he laid out the US position on law and national security. The second half of his speech was devoted to the targeted killing program, which has escalated dramatically during the Obama administration. Although the military and Central Intelligence Agency (CIA) have been engaged in such attacks for years, rarely have government officials acknowledged the practice on the record. Holder stated that he could not "discuss or confirm any particular program or operation," but his speech was significant for publicly outlining the Obama administration's position on the rationales under federal and international law. The most contentious issue, at least domestically, is the targeted killing of US citizens abroad. He defended the legality of such operations and, implicitly, the legality of excluding the courts from playing any oversight role. "'Due process' and 'judicial process' are not one and the same," Holder said, "particularly when it comes to national security. The Constitution guarantees due process, not judicial process."

In this Jadaliyya Occupation, Intervention, and Law (O.I.L.) roundtable on targeted killings, Richard Falk, Nathan Freed Wessler, Pardiss Kabriaei, and Lennie Small engage with Lisa Hajjar’s “Lawfare and Targeted Killing: Developments in the Israeli and US Contexts.” They offer interventions that extend the discussion in a variety of directions, and she provides a response to their contributions.

Hajjar’s thought-provoking essay traces Israeli and US efforts over the last decade to establish the legality of the practice of targeted killing. She terms this “state lawfare,” which she defines as:

Interpretative innovations … devised to frame otherwise clearly illegal practices as legal by contending that the laws that would prohibit them are inapplicable. In these twenty-first century asymmetrical conflicts, officials interpreted the law to assert the state’s operationally and territorially unbounded rights and the rightlessness of its enemies.

She also examines another aspect of state lawfare, namely efforts to challenge the legality of targeted killing policies in national courts in Israel, the United States, as well as several other countries.

Richard Falk, a world-renowned scholar of international law and politics who currently serves as the United Nations (UN) Special Rapporteur on the Human Rights Situation in the Occupied Palestinian Territories, highlights the impact of reciprocity in international law. He argues that the influence of US and Israeli arguments about the legality and legitimacy of targeted killings may embolden other states to follow suit, adopting the practice and asserting its legality. He warns that because the international community would probably respond to targeted killings by other regimes as terrorism, the current situation portends double standards similar to those which exist in relation to criminal accountability for gross crimes and the proliferation of nuclear weaponry. Falk also argues that the use of self-defense rationales by the United States to justify targeted killings in various countries has the potential to convert the whole world into a global battleground.

Nathan Freed Wessler, a staff attorney with the American Civil Liberties Union (ACLU), has also examined the US practice of targeted killings. He highlights the lack of transparency surrounding this policy and the pitfalls of shielding official decision-making and targeting criteria from both public scrutiny and judicial review. In response to legal challenges, the Obama administration has invoked the "states secrets" privilege to cloak itself in immunity, and has staunchly refused to respond to two Freedom of Information Act (FOIA) requests brought by the ACLU. Wessler concludes his argument by calling for a more transparent policy that may benefit from judicial review to limit the scope of executive authority in killing programs whose targets include US citizens.

Pardiss Kabriaei, a staff attorney for the Center for Constitutional Rights (CCR), explores US insistence on maintaining a secret program without review and warns of the dangers of deferring to executive assurances alone. Kabriaei illustrates the problems with this secretive, unaccountable governmental position by drawing comparatively on the deleterious experience of Guantanamo. She notes that the push by CCR and others for judicial review of Bush administration detention policies that violated US and international laws had a positive effect in curbing at least some abuses. The same, Kabriaei, could hold true for targeted killing. She cautions that “unreviewable executive authority can lead to overreaching and abuse regardless of the particular president in office and, in the context of targeted killing, the consequences are obviously irreparable."

Lennie Small, a PhD student, begins with his discussion with recent efforts to distinguish between “assassination,” which is clearly illegal, and “targeted killing,” which has become the preferred term for extra-judicial executions in the context of asymmetric wars. He takes issue with Hajjar’s analysis of “state lawfare” as a contemporary phenomenon. He argues that similar patterns of legal interpretation have been used for centuries by powerful governments to legitimate tactics of warfare and other forms of state-sanctioned violence to maintain control over rebellious populations or opposition groups. Small then describes and evaluates the role of military lawyers, specifically Israeli military lawyers, in the evolution of these concepts and their application in the current conflict in Israel/Palestine.

Lisa Hajjar responds to these contributions by reading them in relation to the 5 March speech by Eric Holder. She argues that Holder's speech epitomizes what she characterizes as "state lawfare." His position— along with that of the Obama administration he represents — is a manifestation of what Falk terms the "imperial" or "hegemonic" force of international law. But, Hajjar argues that the kind of lawfare she favors, which Falk would call "constructive lawfare" as represented by the work of lawyers like Wessler and Kabriaei, is extremely important at this juncture, even if they (and lawyers like them) do not fully appreciate the long-term potential for litigation as a means of defending hard-fought values such as the right to life, due process, and the right not to be tortured. Ideally, if Falk's optimistic interpretation is correct, we are entering into a period of much-needed national debate on the issue.

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A Meditation on Reciprocity and Self-Defense in Relation to Targeted Killing by Richard Falk (open in a separate window)

There is an emergent Israeli/American controversy on the lawfulness of targeted killing. Although the policy has not yet ripened into a national debate, in the United States, at least, it is beginning. Lisa Hajjar’s assessment of the “legalization” of targeted killing is compelling in a number of respects, including suggesting the analogy to the torture debate that, in many ways, defined the political and moral identity of the Bush presidency, and even the American people, in the aftermath of the 9/11 attacks. She implies, furthermore, that it was Israel that crossed the threshold of legality in response to the wave of suicide bombings that traumatized Israeli society in the 1990s. In other words, targeted killing became a tactic of choice for both the US and Israel as part of the preventive logic of counter-terrorism. The upsurge in targeted killing seems responsive to the idea that neither defensive strategies nor deterrence, nor massive retaliation are appropriate or effective against a terrorist adversary, especially if the violence is accompanied by a readiness of the perpetrator to die while carrying out the mission.

In reporting on the reliance of targeted killing and the unavailability of judicial remedies, Hajjar confronts us with the plight of rightless and vulnerable Palestinians as well as the adversaries of the US throughout the world, but she refrains from advocacy, or even explicit condemnation (although there is an implicit comparison made between the helpless victim of torture and of targeted killing). In one respect, targeted killing is worse than torture due both to its finality which deprives the target of any opportunity to tell his story, and because of the collateral damage inflicted on those unlucky innocents who happen to be in the killing zone — or are mistakenly targeted. Hajjar presents us with a legal, political, and moral challenge, but makes no effort to fashion a preferred response, possibly sensing that beyond exposing the practice, it is futile at this point to say more. I am foolish, perhaps, to offer comments on four aspects of Hajjar’s framing of targeted killing.

Lawfare: Hajjar has drawn the distinction between those who view reliance on law and courts as a positive dimension of political democracy and those who view recourse to law as a means to delegitimize states and their security policies. I would develop this distinction by viewing civil society’s recourse to litigation as “constructive lawfare,” while viewing its denigration by governments, specifically Israel and the US, as nihilistic or regressive. Such efforts to deplore recourse to law and international standards of legitimacy aim to insulate state security policy from procedures and discipline of accountability, and deprive society of an absolutely necessary check on the abuse of state power undertaken, generally, in secrecy. Constructive lawfare is one of the few means of redressing the new imbalance between state and society in the post-9/11 world, and in relation to the acute vulnerability experienced daily by a people living under occupation for decades.

Reciprocity: David Cole makes the following cogent observation  on his New York Review of Books blog (19 September 2011): “In international law, where reciprocity governs, what is lawful for the goose is lawful for the gander.” He goes further in questioning the approach taken to targeted killing by the Obama administration as being unmindful of setting a precedent that is a prelude to future regret: if we “continue to justify such practices in only the vaguest of terms, we should expect other countries to take them up — and almost certainly in ways we will not find to our liking.”

It is true that international law in many substantive domains, from diplomatic exchange to commerce, substitutes reciprocity for enforcement, and so what is claimed for oneself is granted to others. However, in the domains of national security, the use of armed force, and criminal accountability for gross crimes, international law operates according to an imperial logic, or at best a hegemonic logic, in which equals are not treated equally. It is obvious that losers in wars and leaders of some Global South countries are being held more and more accountable for crimes against humanity, especially since the establishment of the International Criminal Court. But it is equally obvious that leaders of Western countries, including Israel, enjoy de facto impunity despite their evident involvement in crimes against humanity.

The one exception, which irritates those clinging to impunity, is the haphazard efforts to detain and prosecute state officials and agents under the controversial rubric of universal jurisdiction. Hajjar’s article gives a helpful summary of the pull and push pressures associated with attempts to rely on universal jurisdiction in relation to Israeli military and political leaders whose travel carries them to countries in Western Europe that have laws on their books permitting the use of domestic courts to pursue accountability for crimes of state committed beyond normal territorial sovereignty.

Whether the targeted killing precedents being set by the US and Israel will come to haunt these countries is highly uncertain. The US used atomic bombs against Japanese cities at the end of World War II, and escaped any kind of accountability as war crimes prosecutions were limited to the wrongdoing of the Germans and Japanese, the losers in the war. This led critics of such double standards to deride the outcomes at Nuremberg and Tokyo as “victors’ justice.” In the current era, demands for targeted killing reciprocity are inevitable. Fifty countries have drones, and some deploy them for surveillance and reconnaissance missions. For example, Turkey, in fighting against Kurdish insurgents, made use of drones to carry out recent cross-border raids against PKK base areas in northern Iraq.

Surely, Iran would have strong grounds to emulate Israeli and American practice with regard to targeted killing, particularly in view of the alleged Israeli targeting and assassinating of Iranian nuclear scientists in recent years, as well as mounting repeated threats of launching an attack designed to disable Iran’s nuclear program. Such threats are direct violations of Article 2(4) of the UN Charter that categorically prohibits “the threat or use of force” except in situations of self-defense against a prior armed attack (Article 51) or as mandated by a decision of the UN Security Council. But if Iran was to avail itself of the targeted killing precedent to assassinate individuals in Israel or the United States that it deemed to be threatening or responsible for a prior attack on its citizens, such violence would be denounced as “terrorism,” and devastating forms of retaliation would almost certainly follow.

In other words, reciprocity is not likely to shape the future of targeted killing, but rather a regime of double standards that resembles what exists in relation to international criminal accountability or with respect to the possession and proliferation of nuclear weaponry.

Human Rights: It is important to introduce the perspectives of human rights into the legal debate on targeting killing, and not limit inquiry to the applicability of international humanitarian law as set forth in the Geneva Conventions of 1949 and the Geneva Protocols of 1977. Targeted killing of a non-combatant involves a challenge to the right to life, as well as constitutes a flagrant form of extra-judicial execution. UN Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions Philip Alston, in his influential 2010 report to the UN Human Rights Council, legally condemns targeted killing by drones on these bases, especially those taking place outside the combat zone, or as the Obama presidency puts it, far from “the hot battlefield.”

These human rights objections to targeted killing take on added force when extended to individuals who are suspected of inciting terrorist acts, as was the case with Anwar al-Awlaki, but without any disclosure of evidence of either the case against the target or a credible demonstration that such an individual posed an imminent security threat and could not be captured. As Hajjar points out, the difficulties posed by detention constraints and questionable evidence that would hold up in court exert pressure to avoid these complexities by killing the person in question. 

Self-defense: The most serious encroachment on relatively settled conceptions of the self-defense exception to the international law prohibition on the use of force is the US reliance on an extended definition of self-defense to validate targeted killing in countries outside an existing combat zone. To view the execution of individuals in Yemen or Somalia on the ground that their activities are to be assimilated to the claim of self-defense associated with the continuing response to the al-Qaeda 9/11 attacks is to undermine the attempts since 1945 to use international law to reduce the discretion available to states when it comes to the use of force. The most articulate legal argument along these lines was expressed by John Brennan, Obama’s official chief counterterrorist advisor, in his speech at the Harvard Law School a few months ago. The irony here is that, just as John Yoo shocked the conscience of liberal America by insisting that practices long assumed to be torture (most notably waterboarding) were not torture (i.e., flagrantly illegal) when employed by the US government, now the Obama administration asserts a similar position that America loves the rule of law, but whatever America wants to do is “legal” even when it flaunts the generally accepted understanding of a rule of international law. In this instance, self-defense is stretched way beyond the accepted consensus among international law specialists as most authoritatively expressed by the majority of the International Court of Justice in its Nicaragua v. United States decision of 1986. Claiming that self-defense entitles the United States to convert the entire world into a global battlefield is certainly bad law, but it is also likely to be bad policy, generating support for extremist expressions of anti-Americanism. And it is scant consolation for Mr. Brennan and other Obama officials to reassure the public that this broad legal authority is used prudently and sparingly, and with a maximum effort to avoid harm to others than those targeted.

A Word in Conclusion

Hajjar’s article provides us with the materials we require to launch a much needed debate on targeted killing. Unlike torture, which has vividness and immediacy that existentially assaults our sense of decency and dignity, the relative novelty of targeted killing, a technologically facilitated innovation in the tactics of state violence, seems more abstract and less in conflict with civilizational values. In some respects, this distinction identifies some real difference. Most legal commentators do not challenge targeted killing if confined to the combat zone, say Afghanistan, but focus their criticisms on its cross-border uses, which in the US case can be anywhere in the non-Western world. In this regard, while torture is primarily of concern as a crime against humanity, targeted killing raises issues of world order, sovereignty, the scope of warfare, and extra-judicial executions.

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Lawyering and Targeted Killing by Leonard Small  (open in a separate window)

The practice now commonly termed “targeted killing” was, before the turn of the twenty-first century, referred to as “assassination.” Both terms refer to the lethal use of force in a surprise attack against an enemy or foe, whether by a sniper, a surgical-precision drone strike, or a magnetic bomb placed on a vehicle. There are, however, important legal and rhetorical differences between the two terms: Assassination is certainly illegal, whereas targeted killing, at least according to the Israeli High Court of Justice (HCJ), is neither legal nor illegal per se; the legality depends on the circumstances in which it is deployed

Assassination is part of our cultural landscape, the subject of countless fiction and non-fiction books, films, and documentaries. While some might take a certain pleasure in the fantasy of James Bond's “licence to kill,” in reality the transgressive and deathly nature of assassination is less spectacularly heroic, and far more gruesome. Because assassination is a form of extra-judicial execution, no state ever had admitted to conducting such a policy because it flies in the face of an individual’s right to life, and the right to due process. To admit to an assassination policy would be to disregard the separation of powers that lies at the heart of democracy; the state would be playing the role of judge and executioner. 

It came, therefore, as a great surprise to the international community when, in late 2000, Israel announced that it was (and had been for some time) “liquidating” enemy Palestinians. Twelve years later, it is still difficult to assess exactly why Israel chose that moment to acknowledge the policy, especially when such killings had been denied for so long. Speaking on behalf of the Israeli government just days after the initial announcement, Daniel Reisner, former head of the International Law Branch of the Israeli Defence Force (IDF), claimed that the Second Intifada was responsible. The Intifada brought about a shift in Israeli rules of engagement which subsequently led to the declaration of the overt policy of targeted killing. “Prior to the Second Intifada,” Reisner told the press, “Israeli soldiers were actually told to wait until they were fired upon, before responding.” But the change in “circumstances” had necessitated that “Israeli soldiers no longer are required to wait until they are actually shot at before they respond.” The Second Intifada was a game-changer, according to former Israeli Deputy Defense Minister Ephraim Sneh: “For sure, it is a signal. If the game is a guerrilla war, we are the champions of the world,” he told Associated Press.  

But perhaps more important than the announcement of the targeted killing policy was the fact that behind the scenes its architects had prepared what they regarded to be a compelling defense and justification. Israeli officials felt confident enough that targeted killings were so imperative to the nation’s security that they were, in fact, legal and legitimate. Because assassination is illegal, the crucial concern for Israel was to find a way to eliminate enemies without appearing to contravene the law. “Extra-judicial” killing had to be brought within the pale of law. This was no small task and involved nothing less than the “legalization” of assassination. 

Israel's ingenuity was both legalistic and rhetorical, and it is here that we witness the crucial difference between the terms “assassination” and “targeted killing.” A veritable legal and political armature underscored the move toward an overt assassination program. The CIA realized the essence of the problem as early as 1954, which is why it has always (notwithstanding some recent exceptions vis-a-vis the not-so-secret drone missions in Pakistan, Yemen and elsewhere) opted to keep covert missions covert. The training manual, A Study of Assassination, distributed to agents and operatives at the time of the agency's 1954 coup in Guatemala, noted that “No assassination instructions should ever be written or recorded,” adding, “Assassination can seldom be employed with a clear conscience. Persons who are morally squeamish should not attempt it.” The problem was that assassination was an unsavoury affair, particularly unpalatable for morally squeamish publics as well. For that reason, the practice was difficult to justify.

The first thing that Israeli government lawyers had to do, therefore, was to change the language and terminology. How can assassination be made to sound legal and morally defensible? Israel immediately stopped using the word “assassination,” and dropped all terms which carry a negative and illegal connotation. In 2001, one year into the officially declared policy, Attorney General Elyakim Rubinstein pointed out that the term “liquidation” damages Israel's image and proposed that it was better to use the phrase “targeted killing” to describe the policy. Thus, a new, more neutral, less offensive term was coined. The change in terminology is immensely significant because it changes the act of killing from one that is always-already illegal to one that is, if not persuasively, then at least plausibly, legal and permissible.

Lawfare: An Historical Perspective

This legal ingenuity of Israel is captured by what Lisa Hajjar calls “state lawfare,” and as she rightly points out, targeted killing is but the most recent manifestation of Israel's instrumentalization of the law. Israel paved the way for targeted killing, and has set legal precedent and custom which has proved very useful and expedient in rationalizing the Obama administration's drone wars. However, Israel did not pioneer state lawfare, as suggested by Hajjar; various forms of it have been around for centuries, rather than decades. Indeed, in Palestine, the very same space as these targeted killings are taking place today, the Ottomans issued a series of laws, for example the “dead land” (or mewat) laws, that were every bit as violent as Israel's contemporary lawfare. In fact, there is historical evidence to suggest that international law was founded to legitimize the violence of colonial powers against their subjugated and colonized people. 

Post-colonial scholars such as Antony Angie argue that the law not only legitimized colonial exploitation, but also developed many mechanisms to prevent colonial reparations. Lawfare has a much longer history than is suggested by Hajjar and others; we find instances of it -- or something very similar to it -- in Francisco de Vitoria's justification for Spanish conquest in the Americas in the1500s, just as we find it at the heart of British colonial rule around the world in the nineteenth and twentieth centuries, including the British Mandate in Palestine which brought the modern conflict between Israel and Palestine into being. These acts were justified by law and mandate; they were acts of war (or worse), conducted not only through, but also in the name of law. If lawfare is the use of law as a weapon of war, then do these historical examples not set lawfare precedents?

Historicizing lawfare is important because there is a tendency to overplay the newness associated with contemporary asymmetric wars, especially in the wake of the Bush administration’s war on the rule of law vis-à-vis Guantánamo, torture and extra-judicial rendition. The focus on the recent, as well the obsession with the US and Israel, belies an important historical fact concerning the relationship between law and war. Law is not a recent addition to the arsenal of war. Clausewitz taught us this much. The Lieber code of 1863 permitted all kinds of violence, as did the Hague Convention of 1907, the Geneva Conventions of 1949 and Additional Protocols of 1977 and 2005. International humanitarian law (IHL), the laws which regulate armed conflict and war, do not prohibit killing but rather (and much more modestly) prescribe certain conditions for its execution. Law participates in violence, and has done so for quite some time, and certainly predates Israel's present lawfare campaign. 

All this matters because, for Hajjar, there is a form of lawfare that is ultimately a good thing. While I do share her optimism that international legal fora can be leveraged to challenge lethal and inhumane policies, I would caution that a much more careful approach to lawfare is required. If, as I have suggested, lawfare is not new, and is not limited to Israel or the US, those advocates of appropriating lawfare are up against a broader and more complex “enemy” than they may have imagined. They must also be aware that by engaging in lawfare, they are tacitly agreeing to play by the rules set by military calculations. In armed conflict, law has to strike a balance between what is called “military necessity” and humanitarian consideration. These are the great weights at either end of war's colossal scales, and often the balance favors the military. When the language of law is used — i.e., “proportionality,” “distinction,” “necessity” -- killing is not prohibited and it is accepted that, in some circumstances, some innocent people will die and will do so in a manner that is entirely consistent with the relevant law. And so while some lawfare practitioners might distinguish what they do from what traditional humanitarians like the International Committee of the Red Cross (ICRC) do, the question remains: at what expense do they use the language of law and lawfare at all? This question goes back to the above point about the relationship between law and violence. The problem is much greater than Israeli and US abuse of the law. The problem might be the law itself, and the legitimacy it confers to actions that would otherwise be thought illegal and immoral. 

To suggest that Israel pioneered state lawfare is, therefore, to miss a potentially important critique about the dangerous potential within the law itself. First, it belies the connections between what Israel is doing today and what other colonial powers have done before it. In the same way that Israel paved the way to construct a legal rationale for this practice that the US has also employed, colonial regimes past and present have gone a long way toward legitimizing and providing the tools for Israel's lawfare over the last sixty years. These connections are surely worth making. Second, and what I turn our attention to for the remainder of this piece, it elides those parts of Israeli lawfare which are genuinely new and innovative, and which require careful consideration. Our attention is fixed on the general “newness” of Israeli lawfare, when in reality it is, as one Israeli scholar put it, “old wine in a new bottle.” 

Advocating Targeted Killing: A Lawyer’s View

One of the more recent additions to the phenomenon of lawfare is the direct involvement of military lawyers - Judge Advocate Generals (JAGs). The Israeli Military Advocate General (MAG) Corps (formerly the Legal Services Corps) has existed since Israel and the IDF were founded in 1948. Its functions are many, but broadly it is responsible for enforcing the rule of law throughout the military. In this manner, and as Hajjar points out elsewhere in relation to Meir Shamgar, the role of the MAG -- the title given to the head of the Corps -- includes “preparatory work,” such as writing legal manuals and formulating or revising the rules of engagement.  

While the MAG has always played an integral and even intrinsic role in Israeli military affairs, JAGs are now directly involved in targeting decisions. They give direct legal permission to the IDF as to whom, and how many, they can and cannot kill based on the intelligence that they are provided. When targeted killing first appeared as acknowledged state policy in 2000, there was a big debate in the IDF about what role the JAGs should play in the process of “executing targets.” Major General Ilan Schiff, from the military court of appeals, proposed that it would be best if a legal expert were to review the list of terror suspects who are candidates for assassination and authorize specific killings before they are carried out. However, a high-ranking IDF officer told Ha'aretz that he disagrees with Schiff's position, saying that a legal authority does not need to give the green light. Lawyers should stop getting in the way of important security issues. That debate is now settled, and JAGs do indeed have to approve each and every strike.

Amos Guiora is a former JAG who served as Legal Advisor to the Gaza Strip from 1994 to 1997. In this capacity, he was at the seat of “operational counterterrorism operations,” which meant that “when a commander was faced with the decision -- yes or no to conduct a targeted killing -- the guy who would receive those God-awful phone calls at 3 a.m. in the morning” was Guoira. In a typical targeted killing scenario, the JAG will ask the commander a series of questions to discern whether the suspect in question qualifies as a “legitimate military target.” A criteria-based approach, akin to a checklist, prevents situations of arbitrary killing, Guoira attests. Otherwise, “what you are really doing is putting your finger in the air [to see] which way is the wind blowing.” How imminent is the threat? What is the collateral damage estimate? How sure is the commander that they have the right guy, and have they exhausted other, non-lethal means of intercepting him? The situation can be “time sensitive,” which means that decisions have to be made very quickly, often in a matter of minutes. “Is he killable?” the JAG asks himself. The IDF commander does not have to follow the advice of the JAG and the ultimate decision remains the commander’s. However, as Guoira points out, “Those of us who have been in the business know the ropes and how the game works, and if I say no the guy is not killed. If I say yes the guy is killed.” 

The JAG’s decision is sovereign: to spare life or take it away. In the above scenario Guoira and those in his position hold the divine decision to let live. On one occasion, Guoira was convinced that the threat to the Israeli body-politic was high enough to warrant execution, but he believed the IDF had the wrong guy. “Don't shoot,” he told the commander, and returned to his wife in bed. The commander called the area commander and told him to call off the strike. The man in blue jeans walked on, unaware that his life had been spared. Since targeted killing became openly declared state policy, 427 other Palestinians have not been so lucky.

JAGs perform a series of difficult tasks, which we might read in two different ways. First, they bring a form of legal reasoning to what is often thought of as the lawless space of war. Their job is to keep militaries in check, to make sure they do not overstep the mark. They oversee what has been referred to as the “humanization of war,” and indeed this is what IHL is all about. The second reading is more critical: it sees the relationship between war and law as instrumental. War needs law, not to tame it but to unleash it. Law confers legitimacy. It is in the space where law and legitimacy meet that the work of the JAGs becomes so powerful. The involvement of lawyers along every step of military operations, right down to the moments before a strike, produces a discourse of legality that is difficult to argue against. The JAGs are an extension of an already pervasive legal apparatus in the IDF, and they have the effect of making the whole process appear legal and legitimate. If there is ever any mistake or breach of the law, the JAGs and the whole legal process are there to exculpate the IDF. As the Saleh Shehadah case demonstrates, this is exactly what happens.

Into the Abyss

Over the last decade, assassination has become a normal part of Israeli and US military doctrine. When reading the news of this or that strike in Gaza or Pakistan, it is sometimes easy to forget that the lawless, murky act of assassination has transformed into one of the key methods used to fight “our” wars. To most, this was unthinkable just ten years ago. A public targeted killing policy was a radical idea which even the Bush administration and Israel's other closest allies opposed. The lawyers of war -- the JAGs and the MAGs -- have been instrumental in bringing about this radical shift. Customary international law is a slippery slope, and given how much ground the military and its lawyers have already taken, I wonder whether law and lawfare are our most useful weapons and whether we might not think seriously about other alternatives, be they political, ethical or otherwise. 

So that we are not left with any doubt as to the magnitude of what was being imagined by Israel, I leave the final words to Daniel Reisner, the man who perhaps more than anyone else should be credited with the very invention of modern assassination:

We [the international legal division] defended policy that is on the edge." The army says, “Here is a magic formula, is it within the bounds of what is possible? To which I will reply, I am ready to try to defend it, but I am not sure I will succeed. If it is white I will allow it, if it is black I will prohibit it, but in cases of grey I will be part of the dilemma: I do not stop at gray [...] We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal moulds. Eight years later it is in the center of the bounds of legitimacy.

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The Need for Judicial Review of US Targeted Killing Practices by Pardiss Kebriaei  (open in a separate window)

In a speech at Yale Law School in February 2012, the US Defense Department’s General Counsel, Jeh Johnson, outlined several legal principles that form the basis for the Obama Administration’s national security policy against al-Qaeda and “associated forces.” Echoing the position the administration has consistently argued in court in cases raising national security issues, he said that decisions taken as part of the administration’s targeted killing policy are not appropriate for judicial review. Johnson assured the students that such decisions are debated and scrutinized by lawyers within the executive branch, but his position was that the courts should not and need not get involved.

That position is clearly the antithesis of what we advocated in Al-Aulaqi v. Obama, a lawsuit brought by the Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU) challenging targeted killings by US forces outside zones of recognized armed conflict, specifically, the targeting of a US citizen in Yemen. In bringing Al-Aulaqi, our contention was that when it comes to a US citizen who is being targeted for killing by his own government on the basis of accusations alone that he is a member of a terrorist organization, who is at risk of being arbitrarily deprived of his life under the Due Process Clause of the Fifth Amendment, and with respect to whom there is no question that the protections of the US Constitution apply— that in at least such a case, there must be a role for the courts.

Our substantive legal argument was that any lethal action by the US in Yemen against Anwar Al-Aulaqi, whom the US accuses of being a member of al-Qaeda in the Arabian Peninsula (AQAP), must be governed by the Constitution and international human rights law, which permit lethal force without due process only where there is an imminent threat of deadly harm and such force is a last resort. That usual constitutional constraint on the government’s actions was not displaced by the exceptional rules of war for two reasons: The hostilities in Yemen between the US and AQAP do not rise to the level of an armed conflict, and even assuming the existence of an armed conflict between the US, al-Qaeda and undefined “associated forces” that extends everywhere – or, as the administration puts it, in Afghanistan and “elsewhere” – AQAP is not such an associated force and thus does not come within that conflict.

Based on the information reported about Al-Aulaqi’s targeting – that he had been added to government “kill” lists on which individuals remained for months at a time, and that he had been the target of prior unsuccessful US strikes and was being actively pursued – we alleged that there was a standing order for his killing that called into question whether the standards of imminence and last resort were being applied. Our request of the court was not to engage in real-time assessment of the government’s targeting decisions, but to determine the legal standard that should govern its actions and to enjoin the government from killing Al-Aulaqi outside of those parameters.

The administration did not respond to the substance of our arguments, but argued instead that the court should not consider the case at all. Obama Department of Justice attorneys echoed many of the arguments their Bush administration predecessors had made in seeking to prevent judicial review of allegations of arbitrary detention, extraordinary rendition, and torture since 9/11. The government’s arguments for dismissal included that our case raised national security questions – “political questions” – best left to the executive branch, and that litigation of the case would also risk disclosure of sensitive national security information – “state secrets.”

The district court ultimately dismissed the case on political question and standing grounds, holding that our client, Al-Aulaqi’s father, was not the appropriate person to bring the case because we had not shown that his son could not act for himself, despite being under continuous threat of death by drone. In its political question holding, the district court acknowledged the “somewhat unsettling nature” of its conclusion “that there are circumstances in which the Executive’s unilateral decision to kill a US citizen overseas … is judicially unreviewable,” and that no US court had ever refused to hear a citizen’s claim that his personal constitutional rights have been violated as a result of US government action taken abroad on political question grounds.

Indeed, in cases the Supreme Court has considered over the past decade, where the executive branch claimed the authority to detain US and foreign citizens alike as “enemy combatants” without charge, and deny or restrict their access to the courts, the Court repeatedly rejected the notion that it should have no role or only a very circumscribed one. In the Court’s 2004 opinion in Hamdi v. Rumsfeld, for example, in response to the government’s argument that anything beyond limited judicial review would raise profound separation of powers concerns and interfere with vital military objectives in wartime, a plurality of the Court

Reject[ed] the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances,” and held that even in times of conflict, the Constitution “most assuredly envisions a role for all three branches [of government] when individual liberties are at stake.

 

Implicit in the Obama administration’s position against judicial review of its targeting practices is not only that such review is inappropriate, but also that it is unnecessary. As Jeh Johnson assured the students at Yale, lawyers within the executive branch subject the administration’s national security legal positions to great scrutiny. But the necessity of internal diligence notwithstanding, resting on executive assurances alone has led to egregious wrongs in the past.

Guantanamo is an apt example. From the first days the prison opened in January 2002, government officials issued statements that the men being detained at the US military base, who stumbled off planes in shackles and hoods, were all dangerous members of al-Qaeda and the Taliban who had been captured fighting in Afghanistan and were intent on doing harm to the US. From 2002 to 2004, the US held over 750 men on the basis of its own secret information and secret determinations. We did not know the names or nationalities of those being held, for what reasons or on what legal basis.

In the first case to challenge the detentions, Rasul v. Bush, the government argued for the courts to stay out: In the global armed conflict against al-Qaeda and its supporters, contending that judicial review would put the courts “in the unprecedented position of micro-managing the Executive’s handling of captured enemy combatants” and, in any case, the absence of review did not mean the detainees were without rights or that their detentions were without congressional and public scrutiny.

The detainees ultimately prevailed in Rasul, which opened the government’s detention policy at Guantanamo to real scrutiny. Years more litigation and scrutiny exposed that the Bush administration’s claim of detention authority was overbroad, its internal processes for status determinations were woefully inadequate and, ultimately, that many men were wrongfully held and abused for many years. Notwithstanding debates about whether or to what extent this administration’s policies differ from the former, unreviewable executive authority can lead to overreaching and abuse regardless of the particular president in office. In the context of targeted killing, the consequences are obviously irreparable.

Alongside the lack of judicial review thus far, other meaningful checks on the administration’s targeted killing operations are also lacking. For one, there are gaps in congressional oversight. The targeted killings with which CCR was concerned in Al-Aulaqi – those occurring outside of recognized war zones – are not carried out by conventional US military forces, but by the CIA and a clandestine unit of the military known as the Joint Special Operations Command (JSOC). Reporting of information about CIA and JSOC operations is generally limited to Intelligence and Armed Services Committees in the House of Representatives and the Senate, and sometimes only to their leaders. Those who are briefed on these operations are prohibited from discussing what they have learned with those who lack the requisite security clearance. Thus, as the Washington Post reported in December 2011, “the vast majority of lawmakers receive scant information about the administration’s drone program.” Moreover, because CIA and JSOC operations are reported to separate committees, “no committee has a complete, unobstructed view” of the program. JSOC, which according to some experts has more of a central role than the CIA in counter-terrorism efforts against al-Qaeda, has less oversight of its activities than the CIA. While some briefing to the Armed Services Committees does reportedly occur, there is nothing analogous to the reporting required of CIA operations to the Intelligence Committees.

The public has also been kept largely in the dark about the targeted killings that were our concern in Al-Aulaqi. One of the most egregious examples of the lack of transparency by the US is an attack in Yemen in December 2009, during a period in which the government insisted that its only role in that country was limited to training Yemeni military forces. On 17 December 2009, a cruise missile struck the village of al-Majalah, killing forty-one members of two families, including twenty-one children. The Yemeni government claimed responsibility. US news sources reported experts who criticized Yemen’s “heavy-handed” methods. The Pentagon refused to comment. A year later, reported leaks revealed that it was the US, not the Yemeni government, that had conducted the strike, and that US and Yemeni officials secretly had agreed that the Yemenis would publicly to take responsibility for this and other US military strikes in the country.

Such deniability of targeted killings by the US in Yemen and Pakistan is less plausible now, but the US still does not officially acknowledge these strikes, let alone provide any data that would allow the public to understand the scope and impact of the killings or their compliance with the law. Ironically, while the government will not officially confirm or deny responsibility for its strikes, it has seen it prudent to confirm that they have resulted in very few civilian casualties. In June 2011, John Brennan claimed that “there ha[dn’t] been a single collateral death” resulting from CIA drone strikes in Pakistan for almost a year. Juxtaposed with even the more conservative figures of non-governmental sources documenting the deaths resulting from these strikes, the government’s claims raise serious questions that must be answered, including about its criteria for defining targets.

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The Secret Bureaucracy of Targeted Killing by Nathan Freed Wessler  (open in separate window) (anchor)

Three US citizens were killed in Yemen in 2011 by drone strikes carried out under the auspices of the government’s targeted killing program. They were neither charged with any crime nor brought before a judge. The killings were carried out by the executive branch acting alone, with no oversight from the courts and no public presentation of evidence. At least two more US citizens are reportedly on government “kill lists,” along with numerous alleged terrorism suspects of other nationalities. As long as they remain on the lists, they, too, can be killed with no warning, no meaningful due process, and no oversight.

The US government’s claim of authority to carry out targeted killings around the world, far from active battlefields and without external checks, is momentous, but there is little public information about the details of its targeted killing program. Much of what is available consists of anonymous leaks to the press by government officials. Recently, President Obama publicly acknowledged the targeted killing program and a few details about it. Yet when faced with calls for further transparency, the US government continues to refuse to officially disclose details about the policy of targeted killings abroad.

In her essay titled “Lawfare and Targeted Killing,” Lisa Hajjar explains that one aspect of the US government’s efforts to ensure “legal immunity” for its targeted killing program “derives from the clandestine nature of these operations and the invocation of states secrets.” The government has deployed this reasoning as a shield against litigation challenging the targeted killing program in two contexts. First, the government invoked the “state secrets privilege,” a doctrine designed to protect classified information, to dismiss a lawsuit brought by the American Civil Liberties Union (ACLU) and Center for Constitutional Rights (CCR) asking a court to place limits on the government’s authority to target and kill US citizen Anwar al-Aulaqi. Second, the government used similar reasoning to oppose two Freedom of Information Act (FOIA) lawsuits brought by the ACLU seeking information about the scope, legal rationale, and factual basis of the targeted killing program. Although the government asserts that its targeted killing program remains “clandestine,” that claim is belied by the repeated official statements lauding the targeted killing program in public.

Obama’s Public Acknowledgment

On 30 January 2012, President Obama took questions on a live internet video forum organized by Google+ and YouTube. He acknowledged that the US carries out targeted killings using drones in Pakistan, that it targets persons who are on a list of “active terrorists,” and that it goes after “al-Qaeda suspects.” He also asserted that the program is “kept on a very tight leash” and claimed that “drones have not caused a huge number of civilian casualties.” Other US government officials have also made public remarks about aspects of the targeted killing program. In a January appearance on national television, for example, Secretary of Defense Leon Panetta acknowledged that the US can and does carry out targeted killings of US citizens pursuant to the president’s authorization. In February, Defense Department general counsel Jeh Johnson asserted in a public speech that the government can pursue suspected terrorists “without a geographic limitation” and that “US citizens do not enjoy immunity” from targeted killing. Last June, President Obama’s counter-terrorism advisor, John Brennan, implausibly asserted that the US targeted killing program had not caused “a single collateral death” in the preceding year. Just this week, Attorney General Eric Holder outlined the legal authority under which the government claims it can target and kill US citizens overseas.

In one sense, the president’s discussion of targeted killing was unremarkable because it provided no new information. The press has long reported on the CIA’s and US military’s targeted killing programs, often based on statements of “anonymous” government officials, and the publicly reported information far outstrips the tidbits disclosed by the president and other administration officials. The press has reported, for example, that the US has carried out targeted killings using drones in a number of countries, including Afghanistan, Pakistan, Yemen, and Somalia. We know that the CIA and the military’s Joint Special Operations Command (JSOC) maintain separate lists of people who the agencies have authority to hunt down and kill. Reports have described the secret bureaucratic process by which names are placed on the lists. And several organizations maintain running tallies of the number and location of drone strikes and the numbers of civilians killed. The US government’s targeted killing program is hardly a secret.

Yet, the President’s statement marked the first time he officially acknowledged, in an attributed statement, that the CIA carries out targeted killings by drone in Pakistan and that the agency maintains a kill list for that purpose. When directly confronted, the government has stubbornly maintained the fiction that the very existence of the CIA’s targeted killing program is a state secret and that basic information about the military’s program cannot be revealed.  

Public Killings, “Secret” Program

On 30 September 2011, Anwar al-Aulaqi, a US citizen who reportedly had been placed on the government’s kill lists, was executed in a joint CIA-JSOC drone strike in Yemen.  Another US citizen, Samir Khan, died in the same attack. Two weeks later, al-Aulaqi’s 16-year-old son, Abdulrahman al-Aulaqi — also a US citizen — and his seventeen-year-old Yemeni cousin were killed in a military drone strike elsewhere in Yemen. Although the president and other members of the administration claimed credit for their success in killing al-Aulaqi, they have refused thus far to provide an account of the legal basis on which they assert the power to kill US citizens suspected of involvement in terrorism. They also have failed to present any evidence justifying al-Aulaqi’s targeting, except to vaguely assert that he “took the lead in planning and directing efforts to murder innocent Americans.”

Although the Obama administration has been eager to use the death of al-Aulaqi and its broader targeted killing program to bolster its counterterrorism credentials, the US government has responded to litigation seeking accountability and transparency with broad claims of secrecy. In early 2010, the ACLU filed a FOIA request seeking disclosure of the legal basis for the government’s use of drones to conduct targeted killings overseas, as well as data regarding the number of civilians and non-civilians killed in the strikes. In response, the CIA flatly refused to confirm or deny the existence or nonexistence of any such records, claiming that even the fact that a targeted killing program exists cannot be acknowledged.  

Later in 2010, the ACLU and CCR filed a lawsuit on behalf of al-Aulaqi’s father asking the court to force the US government to reveal the criteria it used to place al-Aulaqi on the kill lists and to prevent the government from using lethal force away from an active battlefield except in situations where a person poses an imminent or immediate threat of injury to others, as required by US and international law. To date, the government has neither explained whether it abides by this imminence standard nor offered evidence that al-Aulaqi actually posed an imminent threat. In response to the lawsuit, the government asserted the state secrets privilege, claiming that information about the targeted killing program was so secret that the whole lawsuit must be dismissed to avoid risking disclosure of classified information. The court dismissed the case on separate national security-related jurisdictional grounds.

Shortly after al-Aulaqi was killed, the New York Times published a detailed description, based on information from those ubiquitous anonymous government officials, of a secret memorandum by the Department of Justice Office of Legal Counsel (OLC) providing the US government’s legal justifications for targeting al-Aulaqi. The story resulted in calls from across the political spectrum to release the actual memo or officially and publicly explain its legal reasoning. When the government failed to make public its legal arguments for the targeted killings of its own citizens, the ACLU submitted a new FOIA request seeking disclosure of the OLC memo, information about the process by which the administration adds Americans to kill lists, the evidentiary basis for targeting al-Aulaqi, and the factual basis for the killings of the other two US citizens. After the OLC and CIA baldly refused to confirm or deny whether any such memo or other relevant document even exists, the ACLU filed suit. (The Times also filed a FOIA lawsuit seeking the OLC memo.) Both lawsuits are currently pending in US federal courts.

The Need for Transparency

The US government has claimed a chilling and far-reaching power to kill US citizens and others far from any battlefield, without judicial oversight, and in secret. The executive branch has developed a secret bureaucracy of killing, complete with a secret government panel that identifies names of suspected terrorists, secret lists of people to be targeted for death, secret legal opinions, and secret presidential authorizations to kill. This program deserves, and requires, public oversight and debate.  

As Hajjar points out, however, the government has not responded to calls for accountability and transparency by publicly justifying the legality of the targeted killing program or defending it in court. Rather, consistent with the model of “state lawfare” she describes, it has aggressively asserted that accountability mechanisms are completely inapplicable. To this end, Defense Department general counsel Jeh Johnson recently stated that courts should have no role in reviewing the legality of “targeting decisions” and the “application of lethal force” in the targeted killing context. Attorney General Holder elaborated on this position on 5 March when he argued that courts should not be allowed to enforce the constitutional right to due process for US citizens subject to targeted killing. In the government’s view, the secret deliberations of executive branch officials should be sufficient. 

In an open and democratic society, it is not enough for the government merely to assure the public that it is acting within the law when it seeks to kill. Only when the government is compelled to face real transparency can the legality, legitimacy, and wisdom of the targeted killing program truly be put to the test. Courts have thus far accepted the US government’s claims of official secrecy to insulate itself from criticism, but the government’s selective leaks and acknowledgments about the targeted killing program have reached a critical mass. Courts should no longer accept the cynical claim that the very existence of a targeted killing program continues to be secret, or that judges should have no role in holding the government to account.

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Lawfare and Targeted Killing: A Response by Lisa Hajjar  (open in separate window)

The speech that Attorney General Eric Holder delivered on 5 March 2012 in which he outlined the Obama administration’s position on the legality of the targeted killing program exemplifies what I have described as “state lawfare.” One aspect of state lawfare, I argue, is the effort by officials “to frame otherwise clearly illegal practices as legal by contending that the laws that would prohibit them are inapplicable.” Holder evinces a heightened degree of self-consciousness about what he is doing in this regard when he states:

Some have called such operations ‘assassinations.’ They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings…[T]he U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes. 

 

Lennie Small’s contribution to this roundtable begins with this very point. The relatively recent articulation of a distinction between “assassination” and “targeted killing,” Small argues, is legal and rhetorical rather than tactical, since both refer to “the lethal use of force in a surprise attack against an enemy or foe, whether by a sniper, a surgical-precision drone strike, or a magnetic bomb placed on a vehicle.” Like state lawfare-esque assertions by Bush administration officials and lawyers that interrogation tactics such as waterboarding are not torture (i.e., criminal offenses) if done for the worthy purpose of “keeping Americans safe,” Holder is now on the record arguing that extra-judicial executions are not assassinations (i.e., unlawful) if employed “to defend the United States through the appropriate and lawful use of lethal force.”

The concepts of “appropriate” and “lawful” are not nearly as seamless or complimentary as Holder would suggest. In fact, they raise two entirely different sets of issues, coming together only (and retrospectively) in the death-by-surprise of suspected enemies who are killed at times when they are not actively engaged in armed combat or any other form of active violence or aggression — that is, at times when they do not pose an imminent threat. Of course, it can be argued that “enemies” are dangerous even when they are off duty, lying in bed, drinking in a café, driving home, and so on. Carl Schmitt reminds us that in war, the “enemy” is he who poses an existential threat to the “friend.” Two years ago, I would not have pegged Holder — or Obama — as a Schmittian. But I digress. 

What, according to Holder (and the administration he serves and for which he speaks), constitutes “appropriate” use of lethal force? This includes “considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.” Such considerations presume the existence of accurate intelligence to trigger the authorization for lethal force. Yet Holder says nothing about the inaccurate intelligence that has triggered fatal strikes against innocents. Indeed, there are no mistakes referenced in his speech. 

As for the “lawful” nature of US targeted killings, Holder cites the canonic laws of war — the Geneva Conventions — to assert that “any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force.” Those four principles are “necessity” (the requirement that the target has a definite military value); “distinction” (the imperative to distinguish between those who legally can be targeted intentionally — “combatants, civilians directly participating in hostilities, and military objectives” — and those whose deaths are accidental or, in the discourse of war, collateral damage); “proportionality” (a calculated but vague and subjective requirement that “the anticipated collateral damage must not be excessive in relation to the anticipated military advantage”); and “humanity” (described by Holder as the requirement to “use weapons that will not inflict unnecessary suffering”). The subject of “unnecessary suffering” goes unnamed and unmourned in the speech. 

There is a more positive way to interpret Holder’s speech, but doing so requires a more hopeful disposition than I possess. The very fact that he publicly acknowledged a policy that has been largely shrouded in secrecy and buttressed by denials is a hopeful sign, if for no other reason than the possibility of signaling what Richard Falk suggests: that the time is ripening for a national debate. Yet my dear, optimistic friend Falk — who resiliently believes that people armed with good information can be inspired to do good things, and who accurately chides me for “refraining from advocacy” in the tenor I adopt in criticizing the targeted killing policy — offers a metanarrative within which one can read Holder’s speech and the Obama administration’s policy: “[I]n the domains of national security, the use of armed force, and criminal accountability for gross crimes, international law operates according to an imperial logic, or at best a hegemonic logic, in which equals are not treated equally.” Holder’s speech is an articulation of the logic of American power and geopolitical realities; there is no referent other than the US government, its laws, and American public opinion. 

I thought about that “imperial” or “hegemonic” logic as I read and reread the text of Holder’s speech, wondering who he was trying to persuade. Clearly, he had several audiences in mind, but all of them American. To the hawks (chicken and other), he offered a reassuring acknowledgment that “[w]e are a nation at war.” He offered bland reassurances to civil libertarians, too: “But just as surely as we are a nation at war, we also are a nation of laws and values.” To the military commission enthusiasts in Congress who have worked to circumscribe the Obama administration’s executive discretion on where and how to prosecute suspects, he chastised that “far too many choose to ignore [that] the previous administration consistently relied on criminal prosecutions in federal court to bring terrorists to justice.” To the Islamophobes, he nourished their desire for harsh treatment of (Islamic) enemies foreign and domestic, rationalizing and owning up to current policies of surveillance racial profiling at home and targeted killing abroad by stating that “there are people currently plotting to murder Americans, who reside in distant countries as well as within our own borders.”

What about those Americans, like Nathan Freed Wessler and Pardiss Kebriaei (and their colleagues at the ACLU and CCR), who are advocates for the international rule of international law? Falk has suggested describing what they and their like-minded colleagues do as constructive lawfare, as distinguished from state lawfare. Personally, I prefer to appropriate and monopolize the term “lawfare” (without the qualifier “constructive”), imbuing it with meaning to refer to — indeed, to colonize the concept in order to make positive reference to — “litigation to challenge military and security policies and practices; and efforts to sue or prosecute state agents, government-funded contractors, and corporations who are alleged to have engaged in or abetted serious violations of law in the conduct of war.” 

Wessler and Kebriaei are actual, literal, invested advocates for the rule of law. As they explain in their contributions to this roundtable, they have litigated cases and issues connected with the targeted killing policy. They are humble, focused, attentive to precedent and hopeful about the principle of judicial review. But make no mistake, the battle for the future of law and war, national security and human rights will be waged — at least in part — by lawyers (like them) in courts, here and abroad. Lawyers, I have found, are not the best assessors of their own contributions to larger struggles. 

Schooled in the adversarial model, lawyers tend to “think like lawyers” in terms of “wins” and “losses” as determined by court rulings. But — and here is why I love “lawfare” as I interpret it (Falk would characterize what I love as “constructive lawfare”) — the value of litigation to protect or expand deep and hard-fought principles of international/global value (e.g., the right not to be tortured, the right to life and due process) cannot be assessed definitively by the immediate outcomes of cases. The brand of lawfare that Wessler and Kebriaei represent will be important in the future, perhaps even more than at present, as a record of resistance to inhumanity and dehumanization. Like the long struggles against slavery and de jure racism, those who fight these fights today will be remembered tomorrow for being on the right side of history. And sometimes, when you fight you win.

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