[This is the sixth part of a six-part series associated with a Jadaliyya roundtable discussing targeted killings . Participants include Richard Falk, Nathan Freed Wessler, Pardiss Kabriaei, Leonard Small, and Lisa Hajjar. Click here for the introduction to the roundtable.]
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.
Jadaliyya Roundtable on Targeted Killings:
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