Legal Commentary

Naked Self Promotion about Targeted Killing

By Kenneth Anderson

Further to Orin?s terrific questions and discussion re targeted killing, I?m deep into xmas stuff, so I will simply point readers who might be interested in the direction of a book chapter of mine on targeted killing and US counterterrorism policy and law, available in nearly final form on SSRN, here.  It talks about the shift in incentives, away from detention and toward killing outright.  The one point I would emphasize is that one should not underestimate the effect of relatively small shifts in the perceptions of mid-level operatives in how they and others in similar situations might be treated down the road.  If your perception is that you run a risk by detaining and interrogating people, and anyway the options to harshly interrogate have been removed, then it simply changes the conversation from your standpoint.

You are dealing with people who can be targeted, and it is not necessary, under the rules in effect, to make a decision about whether the person could be detained.  You can shoot first.  There is no affirmative duty to ask first if they want to surrender.  In that case, the decision is not a serial one of decide whether you have an obligation to try and detain; and if it seems too dangerous then to strike to kill.  You are legally permitted to strike to kill, without warning and without obligation to offer surrender.  If that?s the case, and if the personal legal risks to you or your career, now or down the road, are as they are now, and disfavor interrogation or detention, then the incentive runs toward a targeted killing.  One might or might not think this should be the rule, and there are plenty of international law folks who sooner or later will be pressing to have this ? and these US agents ? treated as engaging in murder and extrajudicial execution.  But these are the rules under which the US currently operates, even if it has not ? foolishly in my view ? offered any firm, plain, clear, top level defenses of its legal rationales since Judge Abraham Sofaer?s 1989 Military Law Review speech.

One last thought and them I?m back to peace on earth, goodwill toward men. One reason the predator and hellfire are good things, from the standpoint of practical US policy and the interests of the agents involved, is that they don?t involve any possible claim by a human rights lawyer that the US agents involved refused to accept surrender.  You don?t have any obligation to offer it, but a missile strike avoids messy issues.

Full post as published by The Volokh Conspiracy on December 24, 2009 (boomark / email).