Sales on Targeted Killings

As controversy arises over disclosure of a Bush-era plan for targeted killing of key al-Qaeda leaders, Professor Nathan Sales offers a perspective in which he views such a plan as both wise and legal.

"Targeted killings can be easier on our troops, and more humane to innocent bystanders, than conventional military operations," says Sales, who points out that fewer American lives are put on the line and there are fewer casualties among the civilian population when covert strikes are implemented.

A 1976 executive order has banned "assassination" by the government, but the U.S. interprets the term quite narrowly to mean "for political purposes." While no statute expressly authorizes the CIA to target individuals, several existing laws imply such a power, Sales explains. Provided the U.S. is acting in self-defense, Sales believes that no laws, domestic or international, prohibit the government from authorizing such targeted strikes.

Targeted Killings, National Review Online, August 20, 2009. By Nathan A. Sales.

"As for the law, no statute expressly authorizes CIA to take out al-Qaeda operatives, but several imply such a power. Take the Authorization for Use of Military Force, enacted by Congress shortly after 9/11. Under that law, the president may use 'all necessary and appropriate force against those nations, organizations, or persons he determines' were responsible for the terrorist attacks.

"That’s an unusually broad grant of authority, and it specifically allows the president to use force against 'persons.' In the 2004 Hamdi case, the Supreme Court held that capturing and detaining Taliban foot soldiers was 'necessary and appropriate force.' Killing al-Qaeda figures probably counts too.

"Notice also that the statute has no geographic limit. Congress didn’t restrict the use of force to, say, Afghanistan. The AUMF thus might permit strikes on al-Qaeda operatives no matter where they’re found.

"Another relevant statute is the National Security Act of 1947, which created CIA. One of the agency’s responsibilities — its so-called 'Fifth Function' — is to perform 'such other functions and duties related to intelligence affecting the national security as the President or the National Security Council may direct.' Eliminating bin Laden may well qualify.

"Are there any laws, domestic or international, that bar us from targeting al-Qaeda? Probably not, as long as the U.S. is acting in self-defense.

"Ever since 1976, an executive order has banned the government from engaging in assassination. That sounds simple enough. But the U.S. interprets the term 'assassination' quite narrowly — an unlawful killing of a targeted person for political purposes. (In wartime, the ban is narrower still.)

"Killing an al-Qaeda operative probably wouldn’t be unlawful. Article 51 of the U.N. charter recognizes the inherent right of member states to use force in self-defense. Under the American view, there are three circumstances in which the use of force is lawful. First, in response to an actual attack by an enemy. Second, to defend against an enemy’s planned attack. And third, in response to a continuing threat. Slaying an al-Qaeda figure likely would be permissible self-defense under all three scenarios — and therefore wouldn’t be a prohibited assassination.

"These legal theories weren’t cooked up in the dark recesses of the Bush Justice Department. They represent a consensus that’s been shared by Democratic and Republican administrations for decades."

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