America’s License to Kill

Killing's our business and business is good.

CFR’s Micah Zenko has a provocative piece at The Atlantic titled “Who Can’t America Kill?” It doesn’t quite go where I was expecting it to.

The stark reality of the post-9/11 era is that the threshold for who and where the U.S. military and intelligence community can kill has been increasingly lowered, with no end in sight.

In the wake of the African Embassy Bombings in 1998, President Clinton issued three top secret “Memoranda of Understanding,” which authorized the CIA to kill Bin Laden and his key lieutenants–fewer than ten people overall–only if they resisted arrest. The CIA interpreted the memoranda as insufficient by limiting the use of lethal force. As George Tenet noted in his memoir, “Almost every authority granted to CIA prior to 9/11 made it clear that just going out and assassinating [Bin Laden] would not have been permissible or acceptable.”

After 9/11, President George W. Bush made the policy of targeted killing more explicit. Just six days after the attacks, Bush signed a Memorandum of Notification that authorized the CIA to kill, without further presidential approval, some two dozen al-Qaeda leaders who appeared on an inital “high-value target list.”

None of this bothers me much. While I’m sympathetic to former MI5 head Eliza Manningham-Buller‘s argument that we’ve made a mistake declaring “war” on terrorism after the 9/11 attacks rather than treating it primarily as a law enforcement and intelligence matter, I’m not opposed to hunting down and killing al Qaeda leaders, either.

There are operational issues with a state declaring war on a non-state actor, much less a tactic. But al Qaeda was at war with the United States–attacking our military targets, embassies, and even our cities–before we seriously began fighting back. While killing bad guys isn’t going to achieve victory on its own, it’s a start.

Giving “shoot to kill” orders against presumptive al Qaeda leaders is frankly less morally objectionable that doing so against ordinary soldiers of countries we’re at war with. Certainly, these guys had more of a choice than your average Wehrmacht or Viet Cong private.

Zenko continues:

Included on this list was Abu Ali al-Harithi, an operational planner in the al-Qaeda cell that attacked the U.S.S. Cole. On November 3, 2002, a Predator drone killed al-Hariti, four Yemenis, and Ahmed Hijazi, a naturalized U.S. citizen and the ringleader of an alleged terrorist sleeper cell in Lackawanna, New York. This was the first targeted killing outside of Iraq and Afghanistan, and the first such killing of a naturalized U.S. citizen.

[…]

In early 2010, President Obama authorized the killing of a U.S. citizen, Anwar al-Awlaki, a Yemeni cleric born in New Mexico. U.S. intelligence officials claimed that al-Awlaki played an operational role in al-Qaeda in the Arabian Peninsula, which has plotted to attack the American homeland. A former senior legal official in the Bush administration was unaware of Americans being approved for killing under the former president.

I addressed this issue back in January 2010 (“Obama Orders Americans Killed“):

Drawing the line is difficult, indeed.  Most obviously, if said accused terrorist were located within the borders of the United States, it would be clearly illegal to simply assassinate him. (Provoking him into defending himself by kicking in his door late at night, thus necessitating killing him, would of course be permissible.) But that would be true, I should think, of Osama bin Laden himself, much less an American citizen.

On the other hand, we blow up suspected terrorists — or, even Taliban leaders — in commando raids and drone attacks in places like Pakistan without thinking about it.  Indeed, according to an official quoted in Priest’s report, “There have been more such strikes in the first year of Obama’s administration than in the last three years under President George W. Bush.”  No one seems to be complaining about the president’s authority to do this.  (Many question whether it’s a sound strategy, of course, but that’s a different issue entirely.)

Would it make any difference if the accused terrorist had American citizenship?   I’m not so sure.

Obviously, this is an awesome power and one that could easily be abused.  But it’s not at all clear where the line should be drawn.

I’m frankly much more concerned about designating American citizens living in the United States as “enemy combatants” on mere say-so and locking them up without due process. Killing those living among our enemy and actively working with them in planning ops against American citizens strikes me as better than the alternative.

Zenko points to this passage in a recent WaPo report on JSOC:

“The president has given JSOC [Joint Special Operations Command] the rare authority to select individuals for its kill list–and then to kill, rather than capture, them. Critics charge that this individual man-hunting mission amounts to assassination, a practice prohibited by U.S. law. JSOC’s list is not usually coordinated with the CIA, which maintains a similar but shorter roster of names.”

My initial reaction to this was: What?! American special operators are conducting special operations?!

First off, assassination actually isn’t prohibited by US law. Beginning with President Ford, political assassination was banned by executive order. The practice continued under Presidents Carter, Reagan, and GHW Bush. But President Clinton actually modified the rule in 1998 specifically to allow for the targetted assassination of designated terrorists.

Second, the purpose of the ban was reciprocal. That is, killing foreign leaders and other high officials normalizes the practice and makes it more likely American leaders and officials will be targeted. This, naturally, is something that American leaders and officials wish to avoid. Rather obviously, such reciprocity is not going to be forthcoming by al Qaeda. They directly attacked the Pentagon and, presumably, the fourth plane was headed for the Capitol or the White House.

Now, Zenko ultimately raises a good question: Where do we draw the line? Given a war with no end in sight and an enemy that doesn’t wear distinctive uniforms or play by the rules of war, do we really want to go around killing everybody who might be a terrorist or member of the Taliban?

I don’t have good answers. But that’s the nature of the war we’ve been dragged into.

In the case of the Taliban, my longstanding counsel is to get out of AfPak. In the case of al Qaeda, though, there’s no end in sight to the list of people who need killing.

 

FILED UNDER: *FEATURED, Intelligence, Law and the Courts, Military Affairs, National Security, Terrorism, World Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Giving “shoot to kill” orders against presumptive al Qaeda leaders is frankly less morally objectionable that doing so against ordinary soldiers of countries we’re at war with.

    The problem is the word “presumptive”. With none of this subject to any sort of independent review or appeal, how is this distinguishable in practice from “The President may kill anyone he feels like”?

  2. Forbidden Jimmy says:

    What hits me the most about this article, is the statement about the Clinton “Memoranda of Understanding”.

    Those on the right have for years contended that Bush did go into Afghanistan without the approval of the President and congress at that time.

    Bush only kept the “Memoranda of Understanding” going and acted on it, JUST as Obama has.

    WE owe them all our thanks. Not just one or another!

  3. Forbidden Jimmy says:

    The fewer American lives lost v. the enemy lives, I mean the radical Islamists not the conservative movement or the Tea Party, but REAL terrorists, the better.

  4. PD Shaw says:

    Well said James.

    I think those who wish to domesticate or constitutionalize these issues need to understand nobody cared then and nobody cares now about what happens outside of this country except on purely pragmatic grounds. And while America can have a big foot across its borders, its almost always facts on the ground that are most important.

  5. SteveP says:

    The President has no authority to order assassinations but Congress does, in Article I, Section 8.

  6. Tsar Nicholas says:

    Excellent post. Bravo.

  7. ponce says:

    The Taliban used suicide bombers to blow up the families of several Pakistani generals in charge of anti-Taliban operations today.

    Morals-free targeted assassinations means there are almost 7 billion legitimate targets in the world.

  8. Ron Beasley says:

    I guess my real problem with this is that it it often counter productive. You end up killing innocents and make more new enemies than you kill.

  9. junyo says:

    Would it make any difference if the accused terrorist had American citizenship? I’m not so sure.
    Obviously, this is an awesome power and one that could easily be abused. But it’s not at all clear where the line should be drawn.

    The brightline is American citizenship.

    The fundamental obligation of the government is to protect it’s citizen’s rights. If protecting those citizens involves ruining the day of non-citizens, so be it. But once you give the POTUS the right to target his own citizens without due process any person is just a ‘being tagged as a state enemy’, and a ‘snatched and dumped outside US borders’ from a valid assassination, which completely destroys the whole “protect it’s citizen’s rights’ concept.

  10. @junyo:

    The fundamental obligation of the government is to protect it’s citizen’s rights. If protecting those citizens involves ruining the day of non-citizens, so be it.

    If it truly is the position of the country that it may do anything to the rest of humanity as long as its citizens benefit by it, then this country is evil.

  11. A voice from another precinct says:

    Unfortunately, this post heightens the argument that “intelligence and spycraft” are two things that should be added to the list of things about which we don’t want to know how they are made.

  12. liberty60 says:

    Ok so does China have the moral or legal right to blow up a meeting in Dallas of Tibetan terrorists-er freedom activists?

    What about Russia? Venezuela?
    Iran?

    Or is this a tool that only we are allowed to use?

  13. Racehorse says:

    If we had this kind of weapon in 1943, does anyone doubt that we would have tried it on Hitler?
    Would anyone disagree with that course of action?

  14. 11B40 says:

    Greetings:

    Back in my infantry days, I used to tell my new soldiers this parable.

    Two young riflemen were having the age-old philosophical discussion about where to shoot those who would oppose them. One was a “head-shooter”; the other preferred the “center-mass” (torso). The head-shooter asserted that if you hit him, he’s done. The center-mass guy liked the larger target area. As they were going back and forth, their Platoon Sergeant came by. “Hey, Sarge,” called out the head-shooter, “where do you like to shoot the bad guys?”

    “In the back,” he replied.

    As many as you can, as often as you can, anywhere and any way you can.

  15. Ben Wolf says:

    Who decides who is a threat and who isn’t, James? Your post gives one nation the right to wage unlmited war anywhere, against anyone, at any time. And implicit in your argument is that innocents killed in the process are utterly irrelevant, nor do you seem to give a damn that ten years of war have stoked anti-American sentiment to new heights even in nations we regard as close and traditional allies.

    You know the problem with claiming might makes right? Eventually you find somebody stronger, and when that actor starts lobbing missiles into California or Florida because we’re harboring “terrorists” (a word which has come to describe someone doing something we don’t like) I suspect you’ll be outraged by their provocative actions and violation of American sovereignty.

    There is no logic or consistency whatsoever to your position. I suspect you know that.

  16. michael reynolds says:

    The age of the drone is here. Robots will be improved, soon smaller, more discreet, more individually targeted. How long until we have small, long-lived drones with facial recognition capability?

    So warfare is changing in a huge way. In a fundamental way. A nation no longer needs to risk its own men in battle. We (and soon others) will be able to kill with very minimal risk to ourselves. This is new.

    Drones and cyberattack. It’s time to put away the tanks and the nuclear subs.

  17. anjin-san says:

    Killing those living among our enemy and actively working with them in planning ops against American citizens strikes me as better than the alternative.

    Maybe that’s just where they live, and they don’t have the means to go anywhere else. Maybe they don’t want to go anywhere else, simply because that is their home. There may be saints living among them that we kill. Or the man that would have cured cancer, or solved unified field theory, had he lived.

    This is the age we live in, and there are people out there that, sadly, we need to kill in the name of our own security.

    It’s the absence of sorrow and regret over this killing in so many Americans that concerns me. We are running away from the moral high ground our parents obtained for us at great cost…

  18. anjin-san says:

    our parents

    Should be grandparents…

  19. ponce says:

    It’s the absence of sorrow and regret over this killing in so many Americans that concerns me.

    It’s the joy that America’s random slaughter of brown people engenders in some people that worries me.

  20. michael reynolds says:

    @anjin-san:

    It’s the absence of sorrow and regret over this killing in so many Americans that concerns me.

    I agree. (We’ve written a lot of books for kids that dealt with this). People don’t like to feel ambivalent, to both wish for a terrorist’s death and be sad for the innocent victims, and sad as well that we ask our young men and women to do these things. The only defense against overuse of this technology will be the moral judgment of American citizens. Every mission should be justified and we should be ratcheting up our standards as the technology improves.

  21. MarkedMan says:

    Remember, the people who decide who gets killed have no public accountability. The belief that it will never be used incorrectly, or that it won’t be used more and more often is naive. Everything in history suggests that those given such unaccountable lethal power will use it more and more often with less and less justification. It hasn’t happened with regularity in the US. But not because we were Americas and therefore “better” people. We were better people because we didn’t allow this type of thing to get started. Where are we now?

  22. anjin-san says:

    Where are we now?

    Smack dab on the slippery slope. Another legacy of the Bush era…

  23. James Joyner says:

    @junyo: If an American citizen had joined the SS, could an American soldier have shot him? Or would we have needed to work out an extradition deal with Hitler?

    @Stormy Dragon and @Ben Wolf: : We’ve got a duty under the laws of war to minimize non-combatant casualties. We’ve done an extraordinary job in most cases of doing that. Drones are much more precise that dropping dumb bombs. I do have issues with taking out three houses to get one guy.

    Countries have since the beginning of time had the ability to declare war against and kill enemies of the state in other countries. That the current enemy doesn’t answer to a sovereign government or wear uniforms makes it messier. But what’s the solution? It would be absurdly impractical to go in and arrest everyone suspected of being al Qaeda.

    @anjin-san: I’m referring there to a very specific instance: a high level al Qaeda planner, living in the war zone, who happens to be a US citizen. See my response to Junyo.

    This isn’t a debate about collateral damage or misidentified targets. Zenko is arguing that it’s scary that we’ve given intelligence and military planners to freedom to identify and target the enemy and go out and kill them. I’m arguing that we’ve always done that in war, are now much better at singling out legitimate targets and sparing innocents, and that the nature of this conflict makes some judgments harder.

    Nor is this Bush’s doing. Clinton was lobbing cruise missiles at AQ targets years before 9/11 and Obama has radically stepped up drone strikes in Pakistan.

  24. James Joyner says:

    @michael reynolds: Oh, I absolutely agree. I’ve written many pieces over the years arguing that, while we’re extraordinarily better at minimizing collateral damage than we were even twenty years ago, our use of remote technology to save American military lives means killing innocents. When operationally possible, I much prefer commandos to drones. The bin Laden raid is the ideal.

    Again, this post is a response to a specific argument: That there’s something fundamentally wrong with targeting enemies by name and killing them.

    @MarkedMan: So, we were better people back in the 1940s when we were firebombing German (white people!) and Japanese (yellow people!) cities indiscriminately? We’ve taken war from a mass activity–taking out entire cities and killing anyone wearing a particular uniform–to a more personal one–targeting specific leaders and buildings. That’s a massive upgrade in the humanitization of war, although it means the targets now have names and faces.

  25. ponce says:

    I’m arguing that we’ve always done that in war, are now much better at singling out legitimate targets and sparing innocents

    Have we?

    We used to use poison or a bullet to take out our enemies on foreign soil.

    How is using a missile with an explosive warhead “better at sparing innocents?”

  26. James Joyner says:

    @ponce: I’m pretty sure use of poison violates the laws of war. And we still use bullets in active combat. But we’ve largely abandoned mass bombings of the type we used in WWII and Vietnam in favor of precision strikes that are getting more precision all the time.

  27. ponce says:

    It’s true America wasn’t really concerned about collateral damage during WWII.

    But it’s hard to beat a knife in the back if you’re looking to minimize collateral damage when taking out a single target.

  28. James Joyner says:

    @ponce: I don’t disagree and have argued many times that commandos are better than drones for a lot of these ops. Even aside from moral considerations, killing innocents is counterproductive to our strategic interests in these fights.

    But it’s not always possible to get a commando team to the spot quickly enough to act on intel. Drones are always in the neighborhood and can be deployed without delay. Commandos have to plan their mission, get to the scene, and execute.

  29. Ben Wolf says:

    Debating between commandos and drones: this is exactly why the United States has failed in every major military action since Korea. Tactics, tactics, tactics, tactics, tactics. Always tactics on the part of our political leaders and our supposedly brilliant general staff. And virtually no consideration of the political fallout, which is why we get Afghanistans and Iraqs and Vietnams. No understanding that tactics must always be in service to the political realities, no realization that planning for the political fallout of a military operation is the key to sound strategy. Hell, I can’t see any evidence our military even studies strategy.

    Again, this post is a response to a specific argument: That there’s something fundamentally wrong with targeting enemies by name and killing them.

    There is something wrong with killing the enemy if results in long-term political damage to the United States, and once again the establishment seems utterly unaware that such consequences even exist, as it has been for sixty years. You fail to discuss how ten years of “killing the enemy” has left our country militarily and diplomatically weaker, how use of drones has inflamed whole populations against us and creates as many enemies as it kills, or how the war has been corrosive to our democracy. All you’ve done is focus on killing, for which (by omission) you apparently claim there are no effective consequences.

  30. James Joyner says:

    @Ben Wolf: Every discussion isn’t a discussion about everything.

  31. junyo says:

    @Stormy Dragon: If it truly is the position of the country that it may do anything to the rest of humanity as long as its citizens benefit by it, then this country is evil.

    So as President, how many Americans would you let die to benefit the Swedes, and if so, why?

    Every rational country in the world maintains the right to act purely in it’s own self interest. If someone else benefits from those actions, then great, it’s a win/win, but if the POTUS is doing things to/for external entities with no idea how his own people benefit (or worse, that causes his own people to suffer) then that’s a problem.And as a practical matter, you can’t do anything…actions toward ‘the rest of humanity’ are informed and constrained by the fact that ‘the rest of humanity’ has political/military organizations that might be a bit peeved with being treated badly and happy with being treated well, and therefore cost/benefit considerations take a lot of actions off the table.

    @James Joyner: In the course of combat operations, as an incidental target, sure. As a specific target, no. I don’t really care how the due process comes about, so I don’t think extradition would have been required; if you could get to him to selectively target him, you could, in the words of Al Gore “Go grab his ass.”

    More importantly, I believe it would be a moot point; thanks to US Code – Title 8 § 1481 :
    (a) A person who is a national of the United States whether by
    birth or naturalization, shall lose his nationality by voluntarily
    performing any of the following acts with the intention of
    relinquishing United States nationality –
    …(3) entering, or serving in, the armed forces of a foreign
    state if (A) such armed forces are engaged in hostilities against
    the United States

    Not sure if it was applicable at the time, nevertheless now the act of voluntarily joining a foreign military would allow your citizenship to be removed, thus erasing the line. It may seem like a technicality, but I would have far less of a problem if the state had to act least document their proof somewhere, and go through a process of formally stripping someone of their citizenship before the crosshairs were put on the chump’s forehead.

  32. @James Joyner:

    We’ve got a duty under the laws of war to minimize non-combatant casualties. We’ve done an extraordinary job in most cases of doing that. Drones are much more precise that dropping dumb bombs. I do have issues with taking out three houses to get one guy.

    Have we? Most measures of non-combat casualties in Iraq an Afghanistan run in the hundreds of thousands if not millions. Although if your bar is WWII style firebombings of entire cities, then I suppose we’ve improved, but is that really much of an accomplishment? If you only destroy one third the houses in each attack but you do it ten times as often, have things really improved?

    And that’s assuming that we have perfect intelligene and are actually attacking the right houses. I remember reading an article about the hunt for one particular terrorist where there was a sentence along the lines of “A predator attack destroyed a car believed to be carrying so-and-so, but he managed to escape”, which was a beautifully euphemistic way of saying we screwed up and blew up the wrong car.

    The reality is we’re essentially blowing up random people’s houses based on rumors and then just want to throw our hands up that it’s an acceptable loss since the deaths of non-americans don’t really count.

  33. MarkedMan says:

    @James Joyner: James, your points are very good, and in general I agree with them. I’m not troubled by targeting people who are plotting to murder. I’m not troubled by killing them. I’m troubled by a secret tribunal deciding which American citizens to kill without due process. In the past we’ve maintained a bright line distinction: only the military can kill people without due process, and then under only very tightly defined circumstances. What Clinton/Bush/Obama has done is to say that the president can decide to kill people on the other side of that bright line. What Bush/Obama has done is say they can delegate this authority to others.

    As desirable as it is to get bad guys, I simply can’t see this ending well.

  34. liberty60 says:

    Marked man touches on the point-
    Where is the line between acceptable and unacceptable killing, or as the original article asked, who CAN’T we kill? And why?

    Can we kill someone on a vague suspicion that they MIGHT be a threat, perhaps sometime in the future? Do we need more than a tip from a source?
    Would it be acceptable to assassinate a rightwing militia member who we think might possibly be plotting a bombing?

    I would love to hear an advocate of our current policy define a case of unacceptable killing, and offer a theory of where the line should be drawn.

  35. anjin-san says:

    Nor is this Bush’s doing.

    I don’t think there has been a President in my lifetime, if ever who did not use military force. Bush’s contribution was to remove moral questions from the equation entirely.: “Your either for us, or against us.”, torture as policy, etc.

    This isn’t a debate about collateral damage

    You opened the door:

    Killing those living among our enemy

    Do you regard that as a position that is not open to debate?

  36. Ben Wolf says:

    @James Joyner:

    None of this bothers me much.

    Ring a bell? That rather flippant interjection opened the door for criticism of greater scope. Other people have amply demonstrated the legal and moral case against assassination. I’m not going to waste time repeating what they’ve so eloquently said, when the above quote implicitly suggests there are few if any consequences beyond having to listen to bleeding hearts in the U.S.

  37. MarkedMan says:

    James, when you said:

    Every discussion isn’t a discussion about everything.

    Genius. Should be required posting for every blog discussion that runs more than 10 posts.

  38. James Joyner says:

    @junyo: If I understand the law correctly–and IANAL–the key phrase is “with the intention of relinquishing United States nationality.” Additionally, the closing provisions of the law say “the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.”

    @MarkedMan: A couple years back, Matt Yglesias wrote somewhere that every blog post should be about one thing and that if you want to write about two things, write two posts. I don’t always follow that advice but think it’s generally good.

    Unfortunately, commenters often have the exact opposite approach. They’ll use some parenthetical point as a wedge to talk about something largely unrelated that’s on their minds.

  39. Racehorse says:

    @michael reynolds: If you had the chance to take out Hitler, even at the risk of killing some of his generals and some civilians in the process, would you not have taken that chance, especially if there was reliable intelligence ? How about Pol Pot? Joseph Stalin? Think how many millions of lives would have been saved if one of those murderers could have been taken out early on.