America’s Shadow Warriors: Legal Dimensions of Special Forces and the Targeted Warfare

Page 1 Page 2 Page 3 Page 4 Page 5

Part Two: Legal Dimensions of Targeted Warfare

By TARA McKELVEY
Carnegie Fellow

The empirical data that demonstrates the effectiveness of U.S.-directed targeted warfare in diminishing the threat posed by Al Qaeda and militant groups against the United States may be incomplete, at least according to counterterrorism experts and military analysts, but nevertheless President Obama and his deputies are committed to an escalation in the covert operations. The reasons for the Obama administration’s shift toward targeted warfare are many and complex, ranging from the changing nature of the terrorist threat to the public perception of national security.

There is no longer an urgent need for terrorism suspects to be interrogated because officials believe the threat against the United States has faded since the 2001 attack. At the same time, many Americans were so appalled by the harsh interrogations of terrorism suspects during the Bush administration that they called for an end to prisoner abuse and mistreatment, and consequently the detention and interrogation of terrorism suspects became politically contentious. Some legal experts argued that as a result it became easier, not to mention politically more expedient, to kill terrorism suspects rather than to hold them in a detention facility and to ask them questions. “The reliance on drone warfare is driven by the desire not to take prisoners,” explained Peter Berkowitz, chairman of the Hoover Task Force on National Security and Law at the Hoover Institution, Stanford University. ¹

Indeed, some legal experts stated that it would be wiser to kill these men from afar in aerial strikes rather than up close with small firearms, so that Americans would not be faced with the messy prospect of an Al Qaeda leader who wants to surrender (many leaders of terrorist organizations want to surrender, at least according to commanders of Special Forces who have captured them; suicide bombers aside, the leaders of these groups are usually in no hurry to die.) ² In one case last fall in which a terrorist leader was tracked down by American forces, U.S. soldiers ended up killing the militant, an Al Qaeda-linked leader named Saleh Ali Saleh Nabhan, 30, who was crossing the Somali desert in a truck on a September afternoon. American officials talked about trying to capture him, but they could not decide where to put him if they took him alive and so decided just to kill him, firing at the truck from military helicopters. With the rise in the number of strikes that the U.S. military has launched against terrorism suspects and militants, including assaults on individuals who are living in sovereign nations such as Pakistan and Yemen, Obama administration officials have naturally begun to take a closer look at the legal foundation for the U.S.-directed strikes to ensure that they are on a solid grounding. These officials, along with experts in international humanitarian law, have been grappling with some of the more contentious issues surrounding the use of covert strikes and targeted warfare.

One of the fundamental questions about this form of military campaign is the legality of the covert strikes when they are carried out in sovereign nations. Killing enemy fighters in the combat zones in Afghanistan and Iraq is an acceptable part of war; targeting suspected terrorists and militants who are operating not in a combat zone, but are instead living thousands of miles from the battlefields in sovereign nations that are not at war, however, is more complex, particularly when these individuals do not pose an immediate threat to the safety of Americans. Many experts believe that this type of targeted warfare falls into a legal gray area. In a broader sense, some experts in humanitarian law believe that the targeted killings carried out by the United States should abide by a series of internationally recognized rules stating that these killings are legally justified and moreover that the public knows and understands the justification for these killings “and that there are effective mechanisms for investigation, prosecution, and punishment if laws are violated,” according to Philip G. Alston, a law professor at New York University and the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. ³

Not all experts in international law agree with this assessment, however. Some of these scholars have been examining the issue of targeted warfare and decided to make recommendations to administration officials to help them follow the best course of action so that they will be able to escalate the programs of targeted warfare and expand upon the capacities. These legal scholars believe that targeted warfare is efficient and useful, and they have attempted to build a framework for the programs to target and kill terrorism suspects and Al Qaeda leaders in countries around the world and have worked hard to ensure that the U.S. government officials who carry out these programs are not later prosecuted for their actions. The scholarly recommendations in support of targeted warfare have been presented in testimony on Capitol Hill and in academic papers, including an essay entitled “Targeted Killing in U.S. Counterterrorism Strategy and Law” by Kenneth A. Anderson of American University Washington College of Law, which appeared in a 2009 book entitled Legislating the War on Terror: An Agenda for Reform (Brookings Institution Press), edited by Benjamin Wittes.

Anderson has a background in international law, and he served as the legal editor of the first edition of a book entitled Crimes of War: What the Public Should Know, edited by Roy Gutman and David Rieff (W.W. Norton & Co.) Kenneth Anderson represents a growing number of scholars and experts in the field of international law who see the escalation of U.S.-directed targeted warfare in a positive light, since they believe that new technology, such as the unmanned aerial vehicles, as well as the advanced skills of the military personnel who work in Special Operations, mean that these strikes can be executed with such precision that fewer civilians will be killed or injured in these types of assaults than in the more conventional, and often clumsy, strikes that are carried out by the regular military.

One of the nation’s leading human-rights advocates said recently that he and his colleagues had decided to support the covert killing teams that are working under the auspices of Special Operations, explaining that U.S.-directed targeted warfare is an efficient way of ensuring that fewer civilians will be killed during the pursuit of terrorists. Indeed, many scholars and policy analysts agree. “The narrower the targeting, the better,” said Benjamin Wittes, a senior fellow at Brookings Institution, and the editor of Legislating the War on Terror. ⁴

Leading human-rights advocates in Washington also believe that it is wiser to let U.S. Special Forces attempt to kill militants in countries such as Yemen rather than to let local forces do it. ⁵ The fact that human-rights advocates and experts in international law support the U.S.-directed targeted killings may seem surprising, since human-rights advocates have traditionally condemned state violence and have argued for caution in the use of lethal force; moreover, critics of programs of U.S.-directed strikes point out that the assaults are imperfect, despite the confidence that many human-rights advocates have in their accuracy, and that they sometimes hit the wrong target. Yemeni authorities protested, for example, against the U.S. attacks on their soil, particularly since one of the recent strikes accidentally killed a Yemeni provincial governor.

Nevertheless, human-rights leaders support the targeted strikes, despite the fact that they sometimes misfire and that innocent people are killed, and meanwhile many experts in international law, such as American University’s Anderson, have been forthright in their defense of the military and U.S.-directed units that carry out these killings. Anderson has argued that Obama administration officials should defend their right to carry out these types of missions and moreover should build on the foundation that allows for these missions. He constructed a legal basis for a defense of targeted warfare. “Part of the purpose of the paper was that the United States has to articulate and defend its position,”  according to Benjamin Wittes. ⁶

Anderson argued that “the U.S. justification for the legality of a particular targeted killing should focus on self-defense as the basis.” ⁷

He wrote, “The accepted space for targeted killings is eroding even within what a reasonable American might understand as the four corners of our conflict with al Qaeda. In many situations in which any American president, Obama certainly included, would want to use a targeted killing, it is unclear to some important actors—at the United Nations, among our allies, among international law scholars, and among NGO activists—as a matter of international law that a state of armed conflict actually exists or that a targeted killing can qualify as an act of self-defense. The legal situation, therefore, threatens to become one in which, on the one hand, targeted killing outside of a juridical armed conflict is legally impermissible and, on the other hand, as a practical matter, no targeted killing even within the context of a ‘war’ with al Qaeda is legally permissible, either.” ⁸

His support of targeted warfare was persuasive, apparently so convincing that some people who were once skeptical of this type of warfare changed their views. Less than a year after Anderson’s paper was published, his legal argument was apparently adopted by the Obama administration; in a public forum in Washington in March 2010, former Yale Law School Dean Harold Koh, who is serving as the legal advisor to the State Department, expressed a legal opinion about targeted warfare that echoed the argument presented in Anderson’s paper. At Yale, Harold Koh was an outspoken critic of the Bush administration and their policies on interrogation, detention, and other aspects of the war on terror. Koh was not widely known beyond academic and legal circles, but he had an impeccable reputation within this sphere because of his public stance against injustice. In March 2008, for instance, Koh signed a letter stating that targeted warfare violated international law.

After joining the Obama administration, however, Koh began to see things differently: Drone strikes are legal, he announced earlier this year at a conference sponsored by the American Society of International Lawyers. “Some have argued that the use of legal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing,” he said. “Our procedures and practices for identifying targets are extremely robust, and advanced technologies make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings.” The targeted killings that are carried out by the United States, he explained, fall within the parameters of the law. ⁹ And while few people would expect that a Yale Law School professor, however principled, would maintain all of his positions once he takes a job in Washington, nevertheless the shift in Harold Koh’s thinking has been noteworthy, because of its abruptness and because of the implications for President Obama’s version of targeted warfare. When Harold Koh announced that targeted killings are legal, that meant, as one legal expert explained, “Obama says it’s okay.” ¹⁰

Experts in international law believe that the administration officials have little basis for their justification for the targeted killings. “The U.S. government has put forward legal rationales, such as the doctrine of self-defense, which are self-serving and unsupported by international law,” explained New York University School of Law’s Philip Alston.  “The administration has put forward a ‘law of 9/11’ self-defense justification, which would permit it to use force in the territory of other countries on the basis that it is in an armed conflict with Al Qaeda, the Taliban, and ‘associated forces.’ The latter group, of course, is undefined and open-ended,” said Alston. “This interpretation of the right to self-defense is so malleable and expansive that it threatens to destroy the prohibition on the use of armed force contained in the United Nations Charter. If other states were to use this justification for the killing of those they deemed to be terrorists, the result would be chaos. States can, of course, defend themselves. They can do so in response to an armed attack or one that is real and imminent.”

“That use of force has to be both necessary and proportionate. But the U.S. position is, in essence, that nine years after 9/11 it is still responding to a real and imminent attack and will probably continue to do so for years to come. Even if we were to accept that the U.S. is able to do whatever, whenever, because it is responding to somewhat distant armed attacks (which I don’t accept), that doesn’t give the U.S. a carte blanche to target and kill whomever it deems to be a terrorist or an enemy. Even if it is acting in self-defense, the targeting of a particular person still needs to comply with the requirements of the laws of war and human rights law. The United States seems to want to marginalize or even eliminate the relevance of human rights law and the laws of war in situations that it claims are governed by the self-defense rationale.”

Regardless of whether or not the strikes from unmanned aerial vehicles and U.S. Special Forces gunships are effective against terrorists or even legal, they have a public relations problem. A retired military officer who heads up a psychological-operations division the State Department told me that he and his colleagues are not allowed to publish articles defending the use of these targeted strikes in Pakistan, Yemen, and in other countries because officially these programs do not exist. Indeed, the secrecy surrounding the program is so great that it has made it nearly impossible for Americans, both in elite policy circles here in Washington and among the general public, to evaluate whether or not these tactics are worthwhile. When covert actions are done on a small scale, public support for these operations is not necessary, but when these operations are conducted on a broad scale, over a period of several years, the government has a responsibility to garner support for them, particularly since the potential for errors and scandals increases with the frequency of their use.

Even supporters of the drone strikes believe the government has made a weak case for the program. “They’re going to have to do a better job in telling the story,” said John Nagl, president of the Washington-based Center for a New American Security. Meanwhile, most of the operations remain shrouded in mystery. It is not clear, for example, what the formal process is for determining that certain individuals pose a threat to the United States and should die. Earlier this year, the American Civil Liberties Union filed a lawsuit against the U.S. government in order to find out the government’s legal basis for the targeted strikes and to determine how the government ensures that these strikes are consistent with international law. The lack of transparency about the targeted-killing campaign is not hurting the public-relations efforts in the short term, because there is little outcry against the lethal strikes, but it could make the situation more difficult for government officials if there is a problem down the road, such as a misguided assault that kills women and children, with footage released on WikiLeaks, and an Abu Ghraib-like scandal in its wake. If this situation were to unfold, the secrecy of the “PlayStation War,” as some experts describe it, would make it harder for the government officials to defend their tactics.

Read Conclusion: The War of Ideas

Page 1 Page 2 Page 3 Page 4 Page 5