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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.
Excerpt:
"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."